## Facts

- Mable Wallace visited Northwest High School to deliver homework to her daughter while recovering from foot surgery.
- Wallace and others stood near the top of a stairway/landing when an unannounced fire drill began and students started exiting down the same stairway.
- Teacher Harriet Rosen escorted her class to the stairway and saw people at the top of the stairs blocking student egress.
- Over the alarm noise, Rosen told people to move; Wallace did not hear her.
- Rosen made physical contact with Wallace to get her attention; Wallace claimed Rosen pushed her, causing her to slip and fall down the stairs and suffer injury, while Rosen claimed she only touched Wallace and Wallace descended without losing balance.
- Wallace sued Rosen and Indianapolis Public Schools for negligence and civil battery.
- After a jury trial, the court instructed on negligence, refused Wallace’s tendered battery instruction, and (over objection) instructed on incurred risk; the jury found for defendants.

## Issues

1. Whether the trial court abused its discretion by refusing Wallace’s tendered civil battery jury instruction.
2. Whether the trial court erred by giving an incurred-risk (assumption of risk) instruction.
3. Whether defendants were entitled to appellate attorney’s fees on the ground that the appeal was frivolous or in bad faith.

## Decision

- Judgment for Rosen and Indianapolis Public Schools affirmed.
- No abuse of discretion in refusing the tendered battery instruction because it was not a correct statement of Indiana battery law and the evidence did not support a “rude, insolent, or angry” touching.
- Any error in giving the incurred-risk instruction was harmless because the verdict was sustainable under contributory negligence/no-negligence findings, so the challenged instruction did not affect the outcome.
- Appellate attorney’s fees denied because the appeal was not frivolous or taken in bad faith.

## Legal Principles

- Civil battery requires a knowing or intentional touching against the plaintiff’s will in a rude, insolent, or angry manner.
- Ordinary, socially expected physical contact in crowded or urgent situations may carry implied consent and is not treated as actionable battery absent rude, insolent, or angry character.
- A tendered jury instruction may be refused if it does not correctly state the law, is not supported by the evidence, or is otherwise covered; reversal requires a showing that refusal substantially prejudiced the complaining party.
- Harmless-error review applies to instructional error; an improper instruction does not warrant reversal unless it substantially affects the verdict.
- Appellate sanctions/fees require a showing that the appeal is wholly implausible or pursued in bad faith.

## Conclusion

The court held that a teacher’s minimal contact to move people along during a fire drill did not warrant a civil battery instruction on the record presented, and any arguable error from an incurred-risk instruction did not justify reversal because it did not change the result; the defense verdict and denial of appellate fees were affirmed.


Wallace v. Rosen, 765 N.E.2d 192 (Ind. Ct. App. 2002)