Saba v. Darling

COLE, Judge. We are asked to decide whether a plaintiff may recovér on a theory of negligence for injuries received as a result of an assault and battery by a defendant who, when intoxicated, has a propensity to inflict harm upon others. We summarize so much of the evidénce presented at trial as we deem necessary to portray the circumstances giving rise to the issue. It was Saturday night, 11:30. p.m., on June 16,1984.

Markus Saba and Charles Darling had never met before, but their paths were destined to cross near Windsor McKay’s restaurant and bar (Bar) in Washington, D.C. Earlier that evening, Saba and his friends Mike Kaufman and Richard Abrascota met at Mike Marino’s house. All of them drank beer except for Kaufman, who was the designated driver. The foursome then travelled in Kaufman’s van to the Bar, where Saba drank two to three more beers during the group’s hour-long stay. Darling and his friend John Atwood had shared a six-pack of beer before travelling to the Bar, where Darling drank about five more beers.

Darling and Atwood met two ladies, and the four set out to visit another bar. The Saba group left at about the same time, with Saba and Kaufman going alone, to the van parked several blocks ⁴⁷ away and returning to pick up the remainder of their party at the curb near the Bar. What happened next is hotly contested. It is clear that Saba got out of the van and that Darling had not yet entered the vehicle in which he would be riding.

Whether there was profanity exchanged between Saba and Darling or if Saba touched Darling is unclear. But all parties seemed to agree that Saba (who did not recall what happened) was “shadowboxing” and making karate movements near Darling for a period of time (some say four to five minutes) when Darling punched Saba in the face fracturing Saba’s jaw in two places. Darling admitted that he had a history of fighting when under the influence of alcohol. Saba filed suit in the Circuit Court for Montgomery County claiming assault and battery and negligence on the part of Darling.

The assault and battery claim was voluntarily dismissed after Saba discovered that Darling had an insurance policy which limited coverage to bodily injuries caused by Darling’s negligence. The matter was tried by a jury which found for Darling, apparently because they found Saba to be contributorily negligent. 1 Saba appealed on the grounds that the trial judge had refused to answer the jury’s request for clarification regarding the effect that simple contributory negligence has on a claim of gross negligence. The Court of Special Appeals, in an opinion authored by Gilbert, C.J., held that Saba’s injuries were the direct result of an intentional assault and battery and that the issue of negligence should never have gone to the jury. The court refused to consider the question of whether simple contributory negligence is a bar to an action of gross negligence.

Saba v. Darling, 72 Md.App. 487, 491-93 , 531 A.2d 696, 698 (1987). The judgment was affirmed. We granted certiorari to examine the important issue raised. ⁴⁸ Saba would have us conclude that Darling, by drinking in public, performed an act which he knew created an unreasonable risk of physical harm to another. He contends that Darling was guilty of negligence when his abuse of alcohol caused him to injure Saba.

In order to reach this conclusion, Saba urges this Court to adopt the definition of reckless disregard for safety set forth in Restatement (Second) of Torts, § 500 (1965) 2 and to apply that definition to Darling’s drinking. Saba analogizes the instant situation to Comment f of § 500, and explains that Darling’s drinking in public was an intentional act which had the unintended result of Saba’s jaw being broken. Saba argues that Darling should have realized the strong probability that harm could result from his drinking, and that by not refraining from drinking, Darling acted with reckless disregard of the known and obvious risk that he might get into a fight and injure someone. Saba contends that he would never have been injured had Darling not been drinking.

Saba then compares the instant situation to Nast v. Lockett, 312 Md. 343 , 539 A.2d 1113 (1988), and urges us to expand upon the holding in that case and reach the conclusion that one who becomes intoxicated does not necessarily have to get into a car to exhibit a reckless disregard for ⁴⁹ others. We will address each of Saba’s arguments in what we consider to be the most logical order. Despite the host of conflicting stories in the record before us, we do know that on June 16, 1984, Charles Darling intentionally hit Markus Saba causing injury to his jaw. Such an event is the sine qua non of an intentional tort.

A battery has been defined as a harmful or offensive contact with a person resulting from an act intended to cause the person such contact. See Restatement (Second) of Torts, § 13. The act in question must be some positive or affirmative action on the part of the defendant. Prosser & Keeton, The Law of Torts, § 9 (5th ed.1984).

The facts of the instant case as set forth above illustrate that each element of this definition has been met. Although Darling testified that he did not intend to break Saba’s jaw, obviously he intended to strike Saba and the severity of the injury is of no consequence in an analysis of Darling’s state of mind. Saba apparently fails to discern the causal connection between the intentional act and the injury, and persists in attempting to fix liability on some negligent act. Despite the clear connection between the punch and the broken jaw, Saba urges us to find that his injuries were the result of Darling’s drinking in public.

The theory he advances is that Darling knew that when he