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Ghassemieh v. Schafer - 52 Md. App. 31, 447 A.2d 84 (1982)


While it is true that the absence of intent is essential to the legal conception of negligence, the presence of an intent to do an act does not preclude negligence. The concepts of negligence and battery are not mutually exclusive. 


Plaintiff Karen B. Ghassemieh, age 29 on Feb. 24, 1977, was a teacher of art with the Baltimore County Schools. On that date, she was teaching an 8th grade class of "above average" students, including defendant E.S., who was then 13 years old. While Ghassemieh was about to sit down to assist another student, E.S. pulled the chair away, causing Ghassemieh to fall to the floor. On Jan. 24, 1980, approximately one month less than three years later, Ghassemieh filed a negligence action against E.S. in Maryland state court. At trial Ghassemieh described what happened: "I got to Terri's seat and because I am very tall it is my practice either to kneel down next to the children or to sit down. Terrie got up very quickly and I went to sit in her seat. As I went to sit down, I tucked the chair underneath me as I usually do. As I relaxed to sit down, the chair was gone. It was pulled out and I fell to the floor hurting my back." E.S. testified that she pulled the chair away as a joke. The trial court instructed the jury on the definition of a battery so it could determine whether E.S. committed a battery or a negligent act. Ghassemieh's trial counsel never argued that negligence and battery were not mutually exclusive or that the jury could award damages for negligence even if the evidence proved a battery. Counsel also failed to request a specific negligence instruction or object to the giving of any instruction on battery. The jury rendered a verdict for E.S., and the trial court entered judgment against Ghassemieh. Ghassemieh appealed, challenging the instructions of the trial court.


Did trial counsel's failure to object to the trial court's jury instruction bar Ghassemieh's arguments on appeal?




The appellate court held that Ghassemieh did not adequately preserve the issues raised for review. The court agreed with the Ghassemieh's appellate counsel that an intentional act did not preclude recovery of damages for negligence. However, trial counsel did not try the Ghassemieh's case within the familiar framework of negligence and failed to develop proof that E.S. had a duty to refrain from conduct involving an unreasonable risk of harm to another. The court accordingly refused to permit Ghassemieh to assert on appeal the arguments she should have made at trial. The trial court's judgment was affirmed.

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