Mowrey v. Fort Wayne City of
1:12-cv-00121
N.D. Ind.Dec 31, 2013Background
- Plaintiff Foster Mowrey sued the City of Fort Wayne and others, asserting a state-law battery claim among other claims; the dispute here concerns jury instructions for the trial.
- The Court issued a Proposed Preliminary Jury Instruction No. 5; Defendants objected and asked the Court to include contributory-negligence language relevant to the battery claim.
- Defendants relied principally on Brewer v. Indiana Alcohol and Tobacco Commission to support giving contributory-negligence instruction in the context of an intentional-tort (battery) claim.
- The Court reviewed the law on whether contributory negligence is a defense to intentional torts and framed the legal question accordingly.
- The Court concluded contributory negligence is not a defense to intentional torts such as assault or battery and that Brewer did not reach or alter that principle.
- The Court overruled and denied Defendants’ objection and declined to amend Proposed Preliminary Jury Instruction No. 5 to add contributory-negligence language.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether contributory negligence is a defense to a state-law battery (intentional tort) claim | Contributory negligence does not bar recovery for intentional torts; no instruction should invite that defense | Contributory negligence can be presented to the jury on battery, relying on Brewer to support an instruction | Contributory negligence is not a defense to intentional torts; defendants’ objection denied |
Key Cases Cited
- Wallace v. Rosen, 765 N.E.2d 192 (Ind. Ct. App. 2002) (recognizing contributory negligence is not a defense to intentional torts)
- Brewer v. Ind. Alcohol & Tobacco Comm’n, 954 N.E.2d 1023 (Ind. Ct. App. 2011) (addressed timing language in contributory-negligence instruction; did not hold contributory negligence applies to intentional torts)
- McGill v. Duckworth, 944 F.2d 344 (7th Cir. 1991) (discussing limits of contributory negligence as a defense to intentional misconduct)
- Shipler v. Gen. Motors Corp., 710 N.W.2d 807 (Neb. 2006) (supporting rule that contributory negligence is inapplicable to intentional torts)
- McClain v. Training & Dev. Corp., 572 A.2d 494 (Me. 1990) (same)
- Flanagan v. Riverside Military Acad., 460 S.E.2d 824 (Ga. Ct. App. 1995) (same)
- Fitzgerald v. Young, 670 P.2d 1324 (Idaho Ct. App. 1983) (same)
- S. Tex. Lloyds v. Jones, 273 So. 2d 853 (La. Ct. App. 1973) (same)
- Frontier Motors, Inc. v. Horrall, 496 P.2d 624 (Ariz. Ct. App. 1972) (same)
- Whitehead v. Mathaway, 85 Ind. 85 (Ind. 1882) (longstanding Indiana authority rejecting application of contributory negligence to intentional torts)