ZGRAGGEN v. WILSEY, N.Y. App. Div., Judgment, Law, casemine.com

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Cardona, P.J.

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Smart Summary

Factual and Procedural Background

On July 30, 1989, defendant Denise Wilsey was at plaintiff Kenneth P. Zgraggen's home for a party. During the event, plaintiff and others threw defendant into a pool. Later, defendant pushed plaintiff into the pool, resulting in personal injuries to plaintiff. Plaintiff commenced this action alleging negligence. After discovery, defendant moved for summary judgment to dismiss the complaint, arguing that the plaintiff's cause of action was actually an intentional tort (battery) and thus subject to a one-year statute of limitations under CPLR 215. The Supreme Court held that the complaint stated a cause of action in negligence, subject to the three-year statute of limitations under CPLR 214. The appeal followed.

Legal Issues Presented

Whether the plaintiff's cause of action was properly characterized as negligence or battery.
If characterized as battery, whether the defendant's contact with the plaintiff was "offensive" in nature, thus triggering the one-year statute of limitations.
Whether summary judgment dismissing the complaint was appropriate based on the statute of limitations.

Arguments of the Parties

Defendant's Arguments

The plaintiff's cause of action sounds in battery, an intentional tort.
Because battery is subject to a one-year statute of limitations (CPLR 215), the complaint should be dismissed as time-barred.
The contact was intentional and thus falls under battery rather than negligence.

Plaintiff's Arguments

The complaint sets forth a cause of action in negligence, not battery.
The contact, while intentional, was not "offensive" in nature to support a battery claim.
Therefore, the three-year statute of limitations (CPLR 214) applies, and the claim is timely.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Laurie Marie M. v. Jeffrey T.M., 159 A.D.2d 52, 55; affd 77 N.Y.2d 981	Definition of battery requiring bodily contact, intent, and that the contact be offensive in nature.	The court applied the elements of battery as set forth in this precedent to determine that although bodily contact and intent were present, the offensiveness of the contact was not established as a matter of law.

Court's Reasoning and Analysis

The court analyzed the elements of battery, emphasizing that battery requires bodily contact made with intent and that the contact be offensive or wrongful under all circumstances. While the defendant intended the contact and bodily contact occurred, the court found that the offensiveness of the contact was not conclusively established. Lack of consent was a factor but not determinative. Because the record did not permit a legal conclusion that the contact was offensive, the court allowed the plaintiff to proceed on a negligence theory rather than battery. Consequently, the longer three-year statute of limitations applied, and summary judgment dismissing the complaint was inappropriate.

Holding and Implications

The order of the Supreme Court, Albany County, was affirmed, with costs.

The court held that the plaintiff's complaint stated a cause of action in negligence rather than battery because the contact was not conclusively offensive as a matter of law. This decision allowed the plaintiff to proceed under the three-year statute of limitations. The ruling directly affects the parties by denying summary judgment and permitting the negligence claim to move forward. No new precedent was established beyond the application of existing battery law principles.

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KENNETH P. ZGRAGGEN et al., Respondents, v. DENISE WILSEY, Appellant.

Cardona, P.J.

On July 30, 1989 defendant was at plaintiff's home for a party. At some point during the day, plaintiff Kenneth P. Zgraggen (hereinafter plaintiff) participated with others in throwing defendant into the pool. Later, defendant pushed plaintiff into the pool and as a result he sustained personal injuries. Thereafter, this action was commenced alleging negligence. After discovery, defendant moved for summary judgment dismissing the complaint alleging that plaintiff's cause of action sounded in intentional tort (battery) and therefore was subject to the applicable one-year Statute of Limitations (CPLR 215). Supreme Court held that the complaint set forth a cause of action in negligence subject to the three-year Statute of Limitations (CPLR 214).

We affirm. The elements of a cause of action for battery are bodily contact, made with intent, and offensive in nature (see, Laurie Marie M. v. Jeffrey T.M., 159 A.D.2d 52, 55, affd 77 N.Y.2d 981). In the instant case, there is no question that there was bodily contact and that defendant intended to make the contact. The only issue is whether the contact was "offensive" in nature. An action for battery may be sustained without a showing that the actor intended to cause injury as a result of the intended contact, but it is necessary to show that the intended contact was itself "offensive", i.e., wrongful under all the circumstances. Lack of consent on the part of plaintiff is an element to consider in determining whether the contact was offensive, but it is not, contrary to defendant's argument, conclusive. Upon this record, it cannot be held as a matter of law that the contact herein was offensive. Therefore, plaintiffs shall be given the opportunity to proceed with their action on the theory that defendant negligently caused injury to plaintiffs.

Mikoll, Mercure, Crew III and Yesawich Jr., JJ., concur. Ordered that the order is affirmed, with costs.

ZGRAGGEN v. WILSEY