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Date: 11-13-2001

Case Style: Kevin Armoneit v. George Ezell

Case Number: ED 79397

Judge: Mary Rhodes Russell

Court: Missouri Court of Appeals, Eastern District

Plaintiff's Attorney: Ray B. Marglous, James E. Lownsdale, and Todd M. Boehlje, St. Louis, Missouri

Defendant's Attorney: Beth C. Boggs, St. Louis, Missouri

Description: Kevin Armoneit ("Employee") appeals the trial court's grant of summary judgment in favor of George Ezell ("Employer"). On appeal, Employee asserts four reasons why summary judgment should not have been granted. First, Employee claims a genuine issue of material fact exists regarding whether Employer struck him intentionally or recklessly. Second, he contends Employer failed to meet his prima facie burden for summary judgment because Employer's motion relied on evidence not competent to establish his intention when he struck Employee. Third, he asserts that because Employer failed to plead the affirmative defense of statute of limitations in his answer, it was waived. Fourth, he claims Employer failed to meet his prima facie burden for summary judgment because he failed to plead properly the affirmative defense of statute of limitations upon which his summary judgment motion relied. We find no error and affirm.

Employer owned and was the president of the company for which Employee worked on November 10, 1994, when the incident at issue occurred. After a conversation in the company shop during which Employee was fired, Employee further criticized Employer, and their confrontation persisted. Employer picked up a board, approximately eight feet long, and swung it at Employee two or three times, injuring Employee.

Employee received a workers' compensation award for past medical expenses and for specified future expenses resulting from this incident. Before the workers' compensation hearing, both Employer and Employee testified at depositions. Employer testified that he swung the board without "a whole lot of force, it was mainly just to keep [Employee] away from me, not to do any damage to him." In Employee's deposition, he stated, "I looked up, and [Employer] was attacking me with a board." Employee filed a petition against Employer on August 26, 1999, pleading a cause of action for recklessness in his first count and requesting a punitive damages award in his second count. Employer moved for summary judgment on the grounds that his actions constituted an assault on Employee, and Employee's claim was filed after the two-year statute of limitations had run. See section 516.140 RSMo 2000.(FN1) Employee argued that because he pleaded a case for recklessness, the applicable statute of limitations was the five-year statute of limitations of section 516.120(4) for any other injury to the person not arising from contract and not otherwise enumerated in that section. The trial court entered summary judgment on Employer's behalf on March 8, 2000, agreeing that Employee's claim was essentially one for assault and battery and was precluded because the two-year statute of limitations expired before Employee filed his petition.

* * *

In his first point, Employee claims that a genuine issue of fact exists regarding whether Employer acted recklessly or intentionally when he struck Employee. This lynchpin is crucial to both parties. If Employer can prove that Employer's conduct was intentional and that his affirmative defense of the expired two-year statute of limitations is viable, then the summary judgment will stand. See section 516.140. However, if there is no genuine issue of fact and Employer's conduct could be found to have been unintentional, Employer cannot negate that element of Employee's recklessness claim, which was filed within the applicable five-year statute of limitations, and Employee will be entitled to pursue it. See section 516.120.

Employee's argument hinges on two statements made by Employer during his deposition for Employee's workers' compensation hearing. In describing the incident, Employer testified that he hit Employee with the board on the shoulder "not with a whole lot of force, it was mainly just to keep him away from me, not to do any damage to him." He also stated that when striking Employee, the blows "were not as much force as I could have used, you know, if I really intended to put him out, I think I could."

Employee's attempt to disprove Employer's characterization of the incident by using these statements is an incorrect understanding of what constitutes an assault.

"[A]n assault is any unlawful offer or attempt to injure another with the apparent present ability to effectuate the attempt under circumstances creating a fear of imminent peril." Adler v. Ewing, 347 S.W.2d 396, 402 (Mo.App.1961). "The assault is complete, 'if the intent, with the present means of carrying it into effect, exists and preparations therefor have been made' . . . even though there has been no actual violence to the person." State v. Bowles, 754 S.W.2d 902, 910 n.7 (Mo.App.1988) (defining civil and criminal assault) (quoting State v. Selle, 367 S.W.2d 522, 527 (Mo. 1963)). "A battery is the willful touching of the person of another, and has been said to be the consummation of the assault." Adler, 347 S.W.2d at 402. Every battery contains an assault. Id.

To commit an intentional tort, a person must intend the act and the resulting harm. State ex inf. Ashcroft v. Kansas City Firefighters Local No. 42, 672 S.W.2d 99, 112 (Mo.App.1984) (citing Restatement (Second) of Torts section 870 cmt. b (1977)). Employee asserts that because Employer stated he did not intend physical harm to Employee and that he did not strike Employee with his full force, then his conduct was not intentional. Employer's statements, however, evidence an assault in that the "harm" in an assault is the fear or apprehension of imminent peril, which is exactly what Employer intended for Employee. See Adler, 347 S.W.2d at 402. Employer's statement that he swung the board to keep Employee away from him demonstrates an intent to cause fear in Employee for the purpose of preventing Employee from advancing toward Employer and evidences an assault on Employer's part.

To commit an intentional tort, a person must intend the act and the resulting harm. State ex inf. Ashcroft v. Kansas City Firefighters Local No. 42, 672 S.W.2d 99, 112 (Mo.App.1984) (citing Restatement (Second) of Torts section 870 cmt. b (1977)). Employee asserts that because Employer stated he did not intend physical harm to Employee and that he did not strike Employee with his full force, then his conduct was not intentional. Employer's statements, however, evidence an assault in that the "harm" in an assault is the fear or apprehension of imminent peril, which is exactly what Employer intended for Employee. See Adler, 347 S.W.2d at 402. Employer's statement that he swung the board to keep Employee away from him demonstrates an intent to cause fear in Employee for the purpose of preventing Employee from advancing toward Employer and evidences an assault on Employer's part.

Employee attempts to analogize Employer's actions in this incident with the reckless actions of the defendant in Steelman v. Holford, 765 S.W.2d 372 (Mo.App.1989). In Steelman, the defendant and another man, Friedly, had been drinking for several hours when they decided to take a road trip in the defendant's vehicle, during which they fired a rifle several times. Id. at 375-76. The plaintiff, who was driving a tractor trailer truck on the highway in front of the defendant's vehicle, was injured in his right leg by a shot from the gun, which was randomly fired by either the defendant or Friedly. Id. at 375.

Steelman is not on point with the present case. First, Steelman occurs in the context of evaluating whether the defendant's actions fall within those "expected or intended" by him for determining the scope of coverage of his homeowner's insurance policy. Id. at 374, 377. Second, we do not find any congruency between the facts in Steelman compared to the facts at hand. Holding someone at bay with an eight-foot board following a verbal dispute after firing him from his job does not parallel being on a drunken binge and driving down the highway randomly firing a loaded rifle. In short, Employee's analogy is unpersuasive.

* * *

Click the case caption above for the full text of the Court's opinion.

Outcome: Affirmed

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: None



 
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