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Clark-Ianniciello v. Mann9/17/2001
s outside the bar arresting one of the combatants, a crowd of about 30 onlookers gathered behind him, some of who shouted hostile comments. At one point, someone grabbed the plaintiff's hair from behind, jerked his head back, and kicked the back of his head, causing severe injuries. The plaintiff sued several members of the crowd for battery. The court ruled that absent some evidence to identify one of the defendants as the assailant, the plaintiff had not presented a jury question as to liability of the defendants, noting that 'on the evidence presented, the trier of fact could only speculate as to whether the defendants committed the battery.'
This case, like Clift and unlike Bennett, would require the jury to speculate to enter a verdict again Mann. In Bennett, there were eyewitness accounts placing the defendants' cab at the accident. In contrast here, there was no witnesses or physical evidence placing Mann's truck at the scene of Clark-Ianniciello's accident. The only basis for Clark- Ianniciello's theory was Mann's presence in the area and involvement in a minor one-car accident. But like the defendants in Clift Mann's mere presence in an area where a tort was allegedly committed is not sufficient to create a question of fact as to her liability for Clark-Ianniciello's damage.
Clark-Ianniciello argues that summary judgment was improper because the right side damage to Mann's truck was consistent with her account of the unknown car striking her Jeep from the left. She points to the damage to Mann's right rocker panel, which Defond identified as being in the 'forward' portion of Mann's truck, to argue that this created a fact-question. But Defond could not say that the rocker damage was consistent in any way with a collision involving Clark-Ianniciello's Jeep. In contrast, Mann's expert concluded that all of Mann's damage was inconsistent with the accident Clark-Ianniciello described. In light of this unrefuted testimony, the jury would still have to speculate to find that Mann had caused with Clark-Ianniciello's damages.
There is no genuine issue of material fact as to identity and the trial court correctly granted summary judgment.
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