## Facts

- Debbie Cole (plaintiff) and Sheri Hibberd (defendant) were friends.
- On June 15, 1991, Cole leaned over a stroller holding Hibberd’s children.
- Hibberd, who had been drinking, impetuously kicked Cole and struck her in the tailbone area.
- After the kick, Hibberd began laughing.
- Cole was injured as a result of the kick.
- On June 11, 1993—nearly two years after the incident—Cole sued Hibberd in Ohio state court.
- Cole’s complaint framed the case as negligence, alleging Hibberd’s “negligent” kick caused Cole’s injuries.
- Hibberd moved for summary judgment, arguing the claim was really assault/battery and therefore governed by Ohio’s one-year statute of limitations for those intentional torts, making the action untimely.
- Cole argued the two-year limitations period for negligently caused bodily injury applied because Hibberd did not intend to injure her.

## Issues

1. When a defendant intentionally kicks the plaintiff but claims the contact was meant as a joke rather than to cause injury, does the claim sound in battery or negligence for limitations purposes?
2. May a plaintiff avoid the one-year statute of limitations for assault and battery by pleading an intentional kick as “negligence” to obtain a longer limitations period?

## Decision

- The trial court granted summary judgment for Hibberd on statute-of-limitations grounds.
- The Ohio Court of Appeals affirmed.
- The court treated the kick as an intentional tort (battery) rather than negligence because the contact itself was intentional.
- Because the claim was, in substance, a battery claim, Ohio’s one-year statute of limitations for assault and battery applied.
- Cole filed suit nearly two years after the kick, so the action was time-barred.

## Legal Principles

- Battery requires intent to cause a contact that is harmful or offensive; intent to cause injury is not required.
- An intentional physical contact that a reasonable person would regard as offensive can constitute battery even if the actor describes it as “horseplay” or a joke.
- Courts classify a claim by looking to the nature of the alleged conduct and the undisputed facts, not only the label used in the complaint.
- A plaintiff cannot extend the limitations period by recasting an intentional contact as negligence when the operative act is a deliberate touching.
- When the gravamen of the action is assault or battery, the statute of limitations for those intentional torts governs even if the complaint uses negligence terminology.

## Conclusion

Cole’s lawsuit was barred because Hibberd’s kick was an intentional contact that the court treated as battery, and Ohio’s one-year limitations period for assault and battery applied despite Cole’s effort to plead the case as negligence and despite the claim that the kick was meant as a joke rather than to cause injury.


Cole v. Hibberd, 1994 WL 424103 (1994)