Baska v. Scherzer

283 Kan. 750, 156 P.3d 617 (2007)



Assault is defined in Kansas as an intentional threat or attempt, coupled with apparent ability, to do bodily harm to another, resulting in immediate apprehension of bodily harm. No bodily contact is necessary. Battery is defined as the unprivileged touching or striking of one person by another, done with the intent of bringing about either a contact or an apprehension of contact, that is harmful or offensive. The gravamen of a civil assault and battery is grounded upon the actor's intention to inflict injury. 


An altercation broke out between two fighters. The injured party intervened and stepped between the two fighters. The injured party was "unintentionally" struck by the fighters' punches intended for each other. The injured party filed suit more than one year, but less than two years, after the injury. 


Was the complained action governed by the 2-year statue of limitations for negligence?




The supreme court determined that the one-year statute of limitations in Kan. Stat. Ann. § 60-514(b) for assault and battery barred the injured party's action. There was an unintentional hit and cause of injuries by the respondents. The injured party's action was one for assault and battery, rather than negligence, because (1) the fighters' acts of throwing punches were intentional actions since each fighter intended to strike at the other in order to cause harm, (2) under the doctrine of transferred intent, the fact that the fighters struck the injured party did not change the fact that their actions were intentional, and (3) the fact that the injured party's petition described her claims as actions for negligence did not alter the nature of those claims. The supreme court reversed the appellate court's decision and affirmed the district court.

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