Mcelhaney v. Thomas

405 P.3d 1214 (2017)

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Nature of the Case

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Facts

P and D were both students at High School. D, a senior, played on the baseball team, and P, a sophomore, was the team's manager. Both were in the parking lot headed to the team bus to travel to an away game. D was in the process of relocating his parents' truck closer to the bus so he would not have to walk as far when the team returned. A teammate, Adam Slagle, was with D. P was walking through the parking lot with another student, Andrew Hecker. As the two approached the bus, D saw them and approached from behind. P heard the truck and moved toward the curb to avoid being hit. The front passenger tire of the truck rolled onto P's feet, trapping her. With her feet caught under the tires, P fell to the ground. Hecker yelled at D to back up, which he did. P could neither stand nor walk, so Slagle lifted her into the cab of the truck so D could drive her to the bus to receive medical aid. P was taken to a hospital. P testified that after Slagle set her inside the truck, D said, 'Oh, my gosh, I'm so sorry. I just meant to bump you.' In an affidavit, Hecker likewise claimed D said that 'he only meant to bump into P with his truck.' The investigating officer noted that Slagle said D was 'messing around.' D denied ever saying he meant to bump P. P sued in both negligence and intentional tort. The district court denied P's request to add a punitive damages claim against D. It held that even if P's evidence is viewed in a light most favorable to her, the statement by D that 'I only meant to bump into you' does not rise to the level of an intentional tort. Although to act (bump) may have been intentional the resulting injury or intent to injure was not intentional. P moved to dismiss without prejudice her suit. It was granted. P refiled 3 months later for both negligence and intentional torts. The case was before the same judge again. The court reinstated the same rulings that P could not sue for punitive damages; 'The plaintiff has failed to meet her burden that is required to support a claim for punitive damages and said claim is therefore denied.' The parties proceeded to argue about whether P had sufficiently pled and produced evidentiary support for her intentional tort claim. The court ruled against P's intentional tort claim because it was simply horseplay, and D has admitted to negligence. P got the verdict on negligence and appealed. The appeals panel held that the tort of battery requires an 'intent to cause injury.' It found that P's pleadings failed to allege D intended to physically injure her or cause bodily harm, 'either through actual intent or through an inference from the nature of the act when the result of the act would be substantially certain.' The Court of Appeals concluded the language in P's petition 'undermines her argument that she should have been allowed to bring a claim for punitive damages. In her petition, she makes no allegation of malicious or wanton conduct and even asserts that [D] had no intent to injure her.' It affirmed and P appealed.