Mowrey v. Fort Wayne City of et al
OPINION AND ORDER OVERRULING and DENYING Defendants' objection to 77 The Court's Preliminary Jury Instruction No. 5. Signed by Magistrate Judge Roger B Cosbey on 12/30/2013. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
CITY OF FORT WAYNE, et al.,
Case No. 1:12-CV-121
OPINION AND ORDER
Before the Court is Defendants’ objection to the Court’s Proposed Preliminary Jury
Instruction No. 5 (Docket # 77),1 in which Defendants contend that the proposed preliminary
instruction should be amended to include language on the defense of contributory negligence to
Plaintiff’s state law battery claim. Because contributory negligence is not a defense to an
intentional tort such as battery, the Defendants’ objection will be DENIED.
It is a fundamental principle of tort law that “where the defendant’s conduct is actually
intended to inflict harm upon the plaintiff, there is a difference, not merely in degree but in the
kind of fault; and the defense [of contributory negligence] never has been extended to such
intentional tort. Thus it is no defense to assault or battery.” W. Page Keeton et al., Prosser and
Keeton on the Law of Torts § 65, at 462 (5th ed. 1984); see Restatement (Second) of Torts § 481
The parties mistakenly refer to the motion as Plaintiff’s Objection to Defendants’ Proposed Jury
Instruction No. 20. At the December 16, 2013, trial management conference, in which the Court asked both Plaintiff
and Defendants whether they had an objection to any proposed jury instruction, Plaintiff did not object to
Defendants’ proposed jury instruction No. 20. (Docket # 84.) Instead, Defendants objected to the Court’s Proposed
Preliminary Jury Instruction No. 5, and argued that its proposed jury instruction No. 20 correctly stated the law.
Accordingly, Plaintiff was instructed by the Court to file its response to Defendants’ Objection (incorrectly
submitted as Plaintiff’s Objection to Defendant’s Proposed Jury Instruction No. 20 (Docket # 86)) and Defendant
was instructed to file a reply (incorrectly submitted as Defendants’ Response to Plaintiff’s Objection to Defendants’
Proposed Jury Instruction No. 20 (Docket # 88)).
(“The plaintiff’s contributory negligence does not bar recovery against a defendant for harm
caused by conduct of the defendant which is wrongful because it is intended to cause harm to
some legally protected interest of the plaintiff or a third person.”). Cases following this
overarching principle are legion; Indiana being no exception. See Wallace v. Rosen, 765 N.E.2d
192, 199 n.4 (Ind. Ct. App. 2002); see also Shipler v. Gen. Motors Corp., 710 N.W.2d 807, 825
(Neb. 2006); McClain v. Training & Dev. Corp., 572 A.2d 494, 497 (Me. 1990); Flanagan v.
Riverside Military Acad., 460 S.E.2d 824, 827 (Ga. Ct. App. 1995); Fitzgerald v. Young, 670
P.2d 1324, 1326 (Idaho Ct. App. 1983); S. Tex. Lloyds v. Jones, 273 So. 2d 853, 855 (La. Ct.
App. 1973); Frontier Motors, Inc. v. Horrall, 496 P.2d 624, 627 (Ariz. Ct. App. 1972).
The Defendants’ contention that contributory negligence is a defense to Plaintiff’s state
law battery claim relies entirely on a misreading of the scope of the holding in Brewer v. Indiana
Alcohol and Tobacco Commission, 954 N.E.2d 1023, 1030-31 (Ind. Ct. App. 2011). Although
the jury instruction in dispute in that case pertained to a contributory negligence jury instruction
to an intentional tort, the only issue before the court was whether the instruction was improper
because “it did not specify that any negligence by [Plaintiff] must have been simultaneous with
the fault of the [Defendants].” Id. at 1030. Put another way, the precise issue of whether the
defense of contributory negligence applies to an intentional tort was not appealed to the Brewer
court. As indicated above, courts have uniformly found that a plaintiff’s contributory negligence
is no defense to an intentional tort claim, McGill v. Duckworth, 944 F.2d 344, 352-53 (7th Cir.
1991) (abrogated on other grounds); Brewer did not disturb this accepted, long-standing
principle. See Whitehead v. Mathaway, 85 Ind. 85, 87-88 (1882) (explaining that the defense of
contributory negligence does not apply to intentional torts).
For the foregoing reasons, Defendants’ objection to the Court’s Proposed Preliminary
Jury Instruction No. 5 (Docket # 77) is overruled and DENIED.
Enter for the 30th day of December, 2013.
S/Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge
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