The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant's conduct; (4) the plaintiff was harmed; and (5) the defendant's conduct was a substantial factor in causing the plaintiff's harm.
Plaintiff, who was severely injured from a fall from a cliff above a river, sued two companions for assault and battery, negligence, willful misconduct, and intentional infliction of emotional distress, alleging that they put him in peril by bringing him to the edge of the cliff when he was highly intoxicated and that they aggravated his injuries by waiting several hours to inform the authorities of the fall. The trial court granted summary judgment for the first companion, denied plaintiff's request for entry of default judgment against the second companion, who had not responded to the complaint, and entered judgment for the second companion, and denied the first companion's motion for attorney fees as cost-of-proof sanctions.
Was summary judgment in favor of the first companion proper? Did the trial court properly deny plaintiff's motion for entry of default judgment against the second companion?
No, as to the first companion; Yes, in part on the claims of negligence and willful misconduct brought again the second companion.
The Court of Appeal reversed the summary judgment entered in favor of the first companion, reversed summary adjudication of the negligence and willful misconduct causes of action, and affirmed summary adjudication of the assault and battery and intentional infliction of emotional distress causes of action. The court reversed the judgment entered in favor of the second companion, and remanded with directions. For purposes of the assault claim, the Court held that it could not be inferred that the first companion pushed plaintiff from the evidence that she was upset with him, her jeans were torn, she delayed reporting the incident, and she gave inconsistent statements as to whether she owned a cell phone. For purposes of negligence and willful misconduct claims, there was a triable issue of material fact as to whether a duty under Civ. Code, § 1714, was breached by bringing plaintiff to the cliffside when the companions knew he was intoxicated and by waiting several hours to call 911 or otherwise summon aid after the fall. Plaintiff's admission that he had no memory of being at the cliff, much less of his fall, also precluded him from prevailing on a claim for intentional infliction of emotional distress. A default judgment should have been entered against the second companion on the causes of action for negligence and willful misconduct. It was proper to deny the request from the first companion for attorney fees as cost-of-proof sanctions.