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
- 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?
- 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.