M. C., etc., et al. v. B. H., etc.
Attorneys and Parties
Brief Summary
Tort law—assault and battery arising from a high school fight; whether the defendant can obtain summary judgment based on the consent (mutual combat) defense when the plaintiff claims coercion from bullying.
The Supreme Court, Suffolk County, granted summary judgment to the defendant dismissing the assault and battery causes of action on the ground that the infant plaintiff consented to the fight.
The grant of summary judgment dismissing the assault and battery causes of action.
Plaintiffs raised triable issues of fact as to whether the infant plaintiff truly consented or was bullied/coerced into fighting and whether the defendant engaged in intentional, offensive contact (including pushing the plaintiff to the ground), precluding summary judgment.
Background
The infant plaintiff and the defendant, both high school students, were involved in a fight. The infant plaintiff (by his mother) and his mother (derivatively) sued for negligence, assault, and battery. The defendant moved for summary judgment arguing the plaintiff willingly engaged in the fight, invoking consent to mutual combat. Plaintiffs countered with an affidavit stating the infant plaintiff was repeatedly bullied, coerced into the fight, did not consent, and believed he had no choice; they also described the defendant intentionally pushing him to the ground.
Lower Court Decision
By order dated December 21, 2023 (Supreme Court, Suffolk County, Thomas F. Whelan, J.), the court granted the defendant's motion for summary judgment, dismissing the complaint on the theory that the infant plaintiff consented to the fight and the resulting injuries.
Appellate Division Reversal
The Appellate Division reversed insofar as appealed from and denied those branches of the defendant’s motion seeking dismissal of the assault and battery claims. The court held that plaintiffs’ submissions raised triable issues of fact regarding consent (including claims of coercion from bullying) and the manner of the altercation (e.g., an intentional push), satisfying the elements of assault (imminent apprehension of harmful contact) and battery (intentional, offensive bodily contact) and thus defeating summary judgment.
Legal Significance
Consent to mutual combat is not established as a matter of law when evidence suggests a participant was bullied or coerced. In school-fight contexts, a plaintiff’s affidavit describing coercion and intentional offensive contact can create triable issues for a jury on assault and battery. The decision reiterates the elements: assault requires physical conduct placing the plaintiff in imminent apprehension of harmful contact; battery requires intentional, offensive bodily contact.
Mutual combat/consent is not a complete defense at the summary judgment stage when there is evidence of coercion or bullying and intentional, offensive contact; disputes over consent and the manner of contact are for the factfinder.