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Smith v. John Deere Co. - 83 Ohio App. 3d 398, 614 N.E.2d 1148 (1993)


The tort of assault is defined as the willful threat or attempt to harm or touch another offensively, which threat or attempt reasonably places the other in fear of such contact. The threat or attempt must be coupled with a definitive act by one who has the apparent ability to do the harm or to commit the offensive touching. An essential element of the tort of assault is that the actor knew with substantial certainty that his or her act would bring about harmful or offensive contact.


On May 28, 1991, plaintiffs Cathy Smith, Paul Smith and Jacqueline Holbrook filed suit against defendants John Deere Company, David Witt and Wayne LaRue. The lawsuit alleged that the John Deere Company and its agents were liable for injuries sustained and damages incurred during an unsuccessful attempt at repossessing certain farm equipment. The complaint that initiated the lawsuit included theories of trespass, assault, intentional and/or negligent infliction of emotional distress, negligence, and conversion. Paul Smith sought compensation for a loss of services and consortium as a result of injuries sustained by his wife, Cathy. The complaint also sought an award of punitive damages.

After the named defendants received service of process, they filed an answer and counterclaim. The answer, in addition to denying liability, alleged comparative negligence as to Cathy Smith and Jacqueline Holbrook. The counterclaim alleged malicious prosecution as to Ms. Smith and Ms. Holbrook, based upon criminal charges initiated by Ms. Smith against David Witt and Wayne LaRue but subsequently terminated in favor of Witt and LaRue.

All parties sought appellate review after the Franklin County Court of Common Pleas (Ohio) entered directed verdicts in favor of defendant repossessers, instructed the jury that plaintiffs were comparatively negligent, and allowed testimony by defendants' doctor. Defendants contended that the trial court erred by directing a verdict in favor of plaintiffs and by directing the jury that defendants were negligent.


Did the trial court err in ordering the assault claim to be dismissed?




The appellate court held that the trial court correctly directed a verdict as to the tort of assault, but for the wrong reason. The reason should have been that plaintiff was not placed in fear and, therefore, failed to prove assault. The trial court erred in directing a verdict for defendants on the issues of trespass and punitive damages because a reasonable trier of fact could have found that defendants were trespassers under the circumstances and that their conduct was sufficiently egregious to warrant punitive damages. The directed verdict with regard to negligence was inappropriate because there was conflicting evidence. The directed verdict with regard to malicious prosecution was appropriate because plaintiff had probable cause to file the charges.

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