FINNIGAN v. SANDOVAL

1. ASSAULT — Evidence — Pleadings — Pertained Only to Assault — Consideration — Negligence — Contributory Negligence — Improper — Failure — Consider Intent Issue — Denied Plaintiff — Day in Court. Where plaintiff's complaint was based on an alleged assault, and the evidence presented was consistent only with that theory of recovery, the trial court's consideration of negligent conduct by defendant and contributory negligence by plaintiff was improper, and its failure to consider the issue of intent operated to deny the plaintiff his day in court on the cause of action made out by the pleadings.

Opinion by CHIEF JUDGE ENOCH.

Plaintiff sued defendant for damages on the grounds of an alleged assault. In a trial to the court, the court denied relief to plaintiff on the basis that plaintiff was more negligent than defendant and that plaintiff's negligence was the proximate cause of his own injuries. Plaintiff appeals and we reverse.

Plaintiff's main contention is that the court erred when it applied the law of negligence instead of the law of intentional tort to the facts of the case. We agree.

[1] Plaintiff's complaint was based on an alleged assault, and the evidence presented was consistent only with that theory of recovery. Thus, the court's consideration of negligent conduct by defendant and contributory negligence by plaintiff was improper. See Maes v. Tuttoilmonda, 31 Colo. App. 248, 502 P.2d 427 (1972). Cf. Mooney v. Carter, 114 Colo. 267, 160 P.2d 390 (1945); Carman v. Heber, 43 Colo. App. 5, 601 P.2d 646, (1979). (Trial court's finding of intentional tort committed by defendant rendered application of comparative negligence principles improper.)

Further, the issue of intent was never considered by the trial court and thus plaintiff has not had his day in court on the cause of action made out by his pleadings. Reitler v. Olson, 68 Colo. 65, 187 P. 313 (1920).

Since the judgment must be reversed on the above basis, we need not consider the other issues raised.