Barouh v. Haberman
26 Cal.App.4th 40, 31 Cal. Rptr. 2d 259, 94 Cal. Daily Op. Serv. 4788 (1994)
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Rule of Law:
In a battery case, a jury instruction defining battery as an "unlawful" touching is prejudicially erroneous if the court fails to also instruct the jury, upon request, that "unlawful" means "unconsented to." The failure to provide this clarification can mislead the jury into believing the plaintiff must prove the defendant's conduct was criminal or otherwise illegal.
Facts:
- Robert Barouh and Morton Haberman were longtime acquaintances whose friendship had recently deteriorated.
- Barouh had decided to stop meeting with Haberman and had declined his recent invitations to get together.
- On August 25, 1989, Barouh was seated in the Bagel Nosh restaurant with his cousin.
- Haberman entered the restaurant, approached Barouh from behind, and intentionally made contact with his hand on the side of Barouh's head.
- The nature of the contact was disputed: Haberman claimed it was a friendly 'love tap,' while Barouh and his cousin described it as a 'hard wallop' or 'blow.'
- Immediately following the contact, Barouh felt dazed and later developed tinnitus, a constant buzzing sound in his head that he had never experienced before.
- After being contacted by Barouh, Haberman paid for Barouh's first three medical bills related to the condition.
Procedural Posture:
- Robert Barouh filed a lawsuit against Morton Haberman in trial court, alleging battery and negligence.
- At the conclusion of the jury trial, Barouh's attorney requested a special instruction clarifying that an 'unlawful' contact, as used in the definition of battery, means an 'unconsented to' contact.
- The trial court refused to give the requested clarifying instruction.
- The jury returned a special verdict, finding by a 9-3 vote that Haberman did not commit battery and by a 12-0 vote that he was not negligent.
- The trial court entered a judgment in favor of the defendant, Haberman.
- The plaintiff, Barouh, appealed the judgment to the intermediate court of appeal.
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Issue:
Does a trial court commit a reversible error by instructing a jury that battery is an 'intentional, unlawful and harmful contact' without also providing a requested clarifying instruction that 'unlawful' means 'unconsented to'?
Opinions:
Majority - Vogel (C. S.), J.
Yes. A trial court commits reversible error when it defines battery using the term 'unlawful' without also clarifying, upon request, that 'unlawful' simply means 'unconsented.' The court reasoned that 'unlawful' is a redundant and potentially misleading legal term for a jury. It creates a substantial risk that the jury will wrongly believe the plaintiff must prove the defendant's act was criminal or violated some other law, beyond merely being an unconsented touching. This danger was realized when the jury specifically asked for clarification on the elements of battery and the court's response failed to resolve the ambiguity. Because the instructional error likely confused the jury on a central element of the plaintiff's claim, it resulted in a miscarriage of justice requiring a new trial.
Analysis:
This decision emphasizes the critical importance of providing clear and unambiguous jury instructions, particularly for intentional torts like battery. It effectively clarifies that the 'unlawfulness' element in a traditional battery definition is satisfied by proving a lack of consent, not by showing the act was criminal or otherwise illegal. The ruling influenced the modernization of standard jury instructions, leading to the replacement of the archaic term 'unlawful' with the more precise and accessible term 'unconsented.' This shift reduces jury confusion and ensures verdicts are based on the correct legal standard for civil battery.
