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Law School Case Brief

Wishnatsky v. Huey - 1998 ND App 8, 584 N.W.2d 859


An actor is subject to liability to another for battery if: (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact; and (b) an offensive contact with the person of the other directly or indirectly results. An act that is not done with the intention stated above does not make the actor liable to the other for a mere offensive contact with the other's person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm. A bodily contact is offensive if it offends a reasonable sense of personal dignity.


On January 10, 1996, David Huey, an assistant attorney general, was engaged in a conversation with attorney Peter Crary in Crary’s office. Without knocking or announcing his entry, Martin Wishnatsky, who was performing paralegal work for Crary, attempted to enter the office. Huey pushed the door closed, thereby pushing Wishnatsky back into the hall. Thereafter, Wishnatsky brought an action against Huey, seeking damages for battery. Huey moved for summary judgment of dismissal. The trial court granted Huey’s motion and a judgment of dismissal was entered. Challenging the trial court’s decision, Wishnatsky appealed, contending that the evidence he submitted in response to Huey’s motion for summary judgment satisfied the elements of a battery claim.


Did Huey’s act of pushing Wishnatsaky back into the hall constitute a battery within the context of the law?




The appeals court upheld the trial court's judgment dismissing the paralegal's battery action against the attorney general, holding that, while rude, this was not a touching so offensive to the dignity of a reasonably sensitive person as to constitute a battery. According to the court, the essence of a plaintiff's grievance in an action for battery consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his person and not in any physical harm done to his body. For a contact to be offensive to a reasonable sense of personal dignity, it must be one that would offend the ordinary person, not such as would offend one unduly sensitive as to his personal dignity. It must, therefore, be a contact that is unwarranted by the social usages prevalent at the time and place at which it is inflicted.

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