Wallace v. Rosen
765 N.E.2d 192 (2002)
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Rule of Law:
For a touching to constitute a civil battery, it must be done in a rude, insolent, or angry manner, which is determined by the surrounding circumstances. Incidental personal contact that is reasonably necessary for safety and order in a crowded or emergency situation does not meet this standard.
Facts:
- Mable Wallace, who was recovering from foot surgery, was at her daughter Lalaya's high school to deliver homework.
- While Wallace was speaking with Lalaya and others near the top of a staircase, a fire alarm sounded. The alarm was part of an unannounced drill that occurred one week after a real fire in a nearby bathroom.
- Harriet Rosen, a teacher, was escorting her class down the designated stairway in response to the alarm.
- Rosen observed Wallace and others blocking the students' path at the top of the stairs.
- Rosen approached the group, saying "move it," but due to the noise of the alarm, Wallace did not hear her.
- To get Wallace's attention, Rosen touched her on the back or shoulder with her fingertips.
- Rosen then told Wallace, "you've got to get moving because this is a fire drill," and turned her approximately 90 degrees toward the stairs.
- Wallace testified that this contact caused her to slip and fall down the stairs, resulting in injury.
Procedural Posture:
- Mable Wallace sued Indianapolis Public Schools (IPS) and its employee, Harriet Rosen, in an Indiana state trial court, alleging claims including battery and negligence.
- The case proceeded to a jury trial.
- At the conclusion of the trial, Wallace tendered a jury instruction on civil battery, which the trial court refused to give.
- The trial court, over Wallace's objection, gave the jury an instruction on the defense of incurred risk, which was tendered by the defendants.
- The jury returned a verdict in favor of the defendants, IPS and Rosen.
- Mable Wallace, as the appellant, appealed the judgment to the Court of Appeals of Indiana, an intermediate appellate court, challenging the trial court's decisions regarding the jury instructions.
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Issue:
Does a teacher's act of touching a person's shoulder to gain their attention and turn them toward an exit during a school fire drill constitute a rude, insolent, or angry touching sufficient to support a civil battery claim?
Opinions:
Majority - Kirsch, J.
No, the teacher's act does not constitute a battery. For a touching to be a battery, the evidence must support an inference that the defendant acted with the intent to invade the plaintiff's interests in a rude, insolent, or angry manner. The court reasoned that in a 'crowded world,' a certain amount of personal contact is inevitable and must be accepted, especially in circumstances like a fire drill. Rosen had a duty to ensure her students' safety and facilitate an orderly exit. Her action of touching Wallace's shoulder with her fingertips to get her attention over the loud alarm was a reasonably necessary contact under the circumstances and cannot be characterized as rude, insolent, or angry. Additionally, the court found that Wallace's tendered jury instruction, which included language about reckless battery, was likely to mislead and confuse the jury, as the facts did not support a finding of recklessness akin to prior cases involving wanton disregard for safety.
Concurring - Sullivan, J.
No, the refusal to give the instruction was proper, but for a different reason than the majority's. This opinion disagrees with the majority's conclusion that, as a matter of law, the touching could not be considered rude, insolent, or angry, suggesting a jury could have reasonably found that it was. The proper basis for refusing the instruction was that the portion describing a 'recklessly committed' battery was misleading. A touching that occurs through recklessness is fundamentally inconsistent with the requirement that a battery be an intentional touching.
Concurring - Robb, J.
No, the verdict should be affirmed. This opinion concurs with the majority's analysis regarding the battery instruction. It separately argues that the trial court did err in giving the 'incurred risk' instruction because there was no evidence Wallace had actual knowledge or appreciation of the specific risk of being physically moved by a teacher. However, this error was harmless because under the applicable common law, Wallace's contributory negligence would also bar her recovery, and the jury would have undoubtedly reached the same verdict on that basis.
Analysis:
This case clarifies the 'character of the touching' element required for civil battery, emphasizing that context is paramount. It establishes that incidental contact, particularly when made for safety reasons in a crowded or emergency setting, lacks the requisite rude, insolent, or angry quality to be tortious. The decision provides a useful illustration of the 'crowded world' privilege, where consent is implied for ordinary and necessary contact. It also serves as a strong reminder for litigators that jury instructions must be precise; including legally distinct concepts like recklessness within an instruction for an intentional tort like battery can render the entire instruction improper and misleading.
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