## Facts

- Marie McDonald and E. I. Ford were social acquaintances; McDonald was a social guest in Ford’s home in the early morning of April 26, 1965.
- Ford had consumed alcoholic beverages that evening.
- While McDonald was making coffee and handling phonograph records, Ford approached her from behind and, according to McDonald’s testimony, intentionally embraced her, kissed her hard despite resistance, and held her tightly as she struggled.
- During the struggle, McDonald’s face struck an object, injuring her jaw and face; she left shortly thereafter.
- McDonald sued Ford pleading a negligence theory, alleging her injuries resulted when Ford grabbed her tightly, crushed her, and she fell and struck her face and jaw.
- At the close of McDonald’s case, the trial court directed a verdict for Ford on the ground that the proof established assault and battery rather than negligence.

## Issues

1. Whether the evidence, viewed most favorably to McDonald, could support liability for negligence, or instead established an intentional tort (assault and battery) as a matter of law.
2. Whether the trial court erred by directing a verdict for Ford because McDonald’s proof did not match her pleaded negligence claim.

## Decision

- The appellate court affirmed the directed verdict for Ford.
- McDonald’s evidence described deliberate, nonconsensual physical contact (embracing, kissing, and restraint), which constitutes assault and battery rather than negligence.
- Because McDonald pleaded and tried only negligence, and her proof showed an intentional tort with no separate negligent act, the case was properly taken from the jury.

## Legal Principles

- Assault and battery are intentional torts; negligence involves unintentional conduct such as inadvertence or failure to use reasonable care.
- Intentional, offensive, or nonconsensual bodily contact constitutes battery even if the actor did not intend the resulting injury.
- A negligence claim cannot be submitted to the jury when the plaintiff’s own evidence establishes only an intentional tort and identifies no independent negligent act causing the injury.
- When pleadings and proof materially diverge, a directed verdict may be proper if the plaintiff fails to prove the pleaded cause of action.

## Conclusion

The court held that the plaintiff’s account of an intentional, nonconsensual embrace and kiss, followed by restraint during resistance, described assault and battery, not negligence; because the action was pleaded solely in negligence and the evidence did not support that theory, judgment for the defendant as a matter of law was affirmed.


McDonald v. Ford, 223 So. 2d 553 (Fla. Dist. Ct. App. 2d Dist. 1969)