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Baska v. Scherzer

April 27, 2007


Review of the judgment of the Court of Appeals in an unpublished opinion filed August 4, 2006. Appeal from Wyandotte district court, DANIEL A. DUNCAN, judge. Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed.


1. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.

2. Where the facts are undisputed, appellate review of an order granting summary judgment is de novo.

3. K.S.A. 60-514(b) provides that civil actions for assault and battery must be initiated within 1 year of the date of the incident giving rise to the action. Under K.S.A. 60-513(a)(4), negligence claims must be brought within 2 years.

4. The Restatement explains that the term "intent," as it is used in the law of torts, "denote[s] that the actor desires to cause [the] consequences of his act, or that he believes that the consequences are substantially certain to result from it." Restatement (Second) of Torts § 8A (1964).

5. It is not necessary, to constitute an assault and battery, that there be a specific intention of striking or otherwise injuring the plaintiff. If a defendant unlawfully aims at one person and hits another, under the doctrine of transferred intent the defendant is guilty of assault and battery on the person hit, the injury being the direct, natural, and probable consequence of the wrongful act. Thus, if one of two persons fighting unintentionally strikes a third, the person so striking is liable in an action by the third person for an assault and battery.

6. The record is reviewed and in this case where the plaintiff intervened by stepping between two defendants fighting one another and was "unintentionally" struck by punches intended for the defendants, the doctrine of transferred intent, which has long been recognized in this State, applies. The fact that the defendants unintentionally struck the plaintiff does not change the fact that their actions (punching) were intentional. Moreover, the fact that plaintiff's petition describes her claims against the defendants as actions for negligence does not alter the nature of the plaintiff's claims, which the law recognizes as claims for intentional torts of assault and battery.

The opinion of the court was delivered by: Davis, J.

Celesta Baska brought an action for personal injuries sustained when she attempted to stop a fight by stepping between the defendants, Harry Scherzer, Jr., and Calvin Madrigal. Her action was brought after the expiration of a year from her injury but within 2 years from the date of her injury. After some discovery, the trial court granted the defendants' motions for summary judgment and dismissed Baska's action based upon its conclusion that her action was governed by the 1-year statute of limitations for assault and battery, K.S.A. 60-514(b). The Court of Appeals reversed, holding that Baska's action sounded in negligence, and thus was subject to the 2-year statute of limitations under K.S.A. 60-513(a)(4), primarily because she was unintentionally struck by defendants. We granted the defendants' petitions for review, and now we reverse the decision of the Court of Appeals and affirm the district court.


Baska had given her daughter Ashley, a high school senior, permission to organize a "scavenger hunt" with some friends. The scavenger hunt began at the Baskas' house around 8:30 p.m. and was to end with the participants returning to the house by midnight. When people returned, a number of them remained at the Baskas' home for a "party."

Scherzer and Madrigal were both at the party. Madrigal had participated in the scavenger hunt; Scherzer remained at the house while the hunt ensued, playing cards with Baska. He then went outside as people began to return to the house.

Around midnight, an altercation broke out between Scherzer and Madrigal. Madrigal approached Scherzer from behind, and the two boys began to push each other and throw punches at one another. Upon being informed of the fight by one of her daughter's friends, Baska yelled at the boys to stop in order to break up the fight. When they continued to fight, Baska placed herself between the boys and was punched in the face, losing several teeth and receiving injuries to her neck and jaw. Baska is certain that Scherzer hit her in the face; she also believes that Madrigal punched her in the back of the head. On April 8, 2004, just short of 2 years after the incident, Baska filed suit against Madrigal and Scherzer, alleging that she was injured by the defendants' negligence. In her petition she alleged:

"5. That the defendants, in their excitement and totally unintentionally, struck the plaintiff with powerful blows intended for the other participant in the fight.

"6. That the sole and proximate cause of plaintiff's injuries was the negligence and carelessness of the defendants."

Both defendants filed motions to dismiss based on the statute of limitations, alleging that the suit was barred by the 1-year statute of limitations for assault and battery, K.S.A. 60-514(b). The district court originally granted the motions; however, the court later granted Baska's motion to reconsider and allowed the parties to pursue additional discovery.

Depositions were taken of Baska, Madrigal, and Scherzer. Both Madrigal and Scherzer testified in their depositions that they did not intend to strike or injure Baska in any way. Instead, each defendant testified that it was his intention in throwing the punches to strike and injure the other defendant. In her deposition, Baska's counsel asked her whether she "would anticipate that the intended recipient of [Scherzer's] blow was Mr. Madrigal and not [herself]." Baska answered, "Yes, sir."

After depositions, Madrigal and Scherzer filed motions for summary judgment again based on the 1-year statute of limitations for assault and battery. In its decision after conducting a hearing, the court concluded that the doctrine of transferred intent applied and that Baska's cause of action was an action for assault and battery, not negligence. The court explained:

"Well, the plaintiff's theory, as I understand it, is that in trying to break up this altercation that she was injured by the negligent acts of the two participants who were defending themselves, each of them claiming self defense, and in a negligent manner.

"The depositions of both of the combatants having been taken now, it appears to me that they were striking at each other. Those are intentional acts. The doctrine of transferred intent has been the law in Kansas probably since this place became a state because I think it came straight out of the common law, and it's certainly been the law since I was in law school 30 years ago.

"I don't see anything in [the plaintiff's] citations . . . that the State of Kansas has gone away from that. So I think that in each of these two cases, each--as to each defendant, motion for summary judgment must be granted on the basis that these are intentional acts and the doctrine transferred intent would apply, and they should have been filed within the one year of statute of limitations."

Court of Appeals

The Court of Appeals reversed in an unpublished opinion, Baska v. Scherzer, Case No. 94,879, filed August 4, 2006. Although the court did not dispute the district court's statement of the facts, it disagreed with the district court's conclusion. The Court of Appeals noted that "[t]he key distinction between assault and battery on one hand, and negligence on the other, is that assault and battery are both intentional torts and negligence is unintentional. [Citation omitted.]" Slip op. at 5. The court ultimately held that the plaintiff's action in this case sounded in negligence, because the plaintiff was "unintentionally struck" by the defendants. Slip op. at 14.

The Court of Appeals reviewed a number of Kansas decisions as well as a number of cases from other jurisdictions concluding that "the law on this issue is unclear " Slip op. at 6-13 (citing Harris v. Richards, 254 Kan. 549, 867 P.2d 325 [1994]; Hackenberger v. Travelers Mutual Cas. Co., 144 Kan. 607, 62 P.2d 545 [1936]; Byrum v. Edwards, 66 Kan. 96, 71 Pac. 250 [1903]; Laurent v. Bernier, 1 Kan. *428 [1863]; and Vetter v. Morgan, 22 Kan. App. 2d 1, 913 P.2d 1200, rev. denied 257 Kan. 1096 [1995]). The court noted that "Laurent, Byrum, and Hackenberger tend to suggest that Baska's only cause of action is assault and battery because Madrigal and Scherzer acted intentionally." Slip op. at 12. Nevertheless, it noted that "[a]lthough these cases have not ...

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