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Labadie v. Semler6/1/1990
Per Curiam.
This matter is before the court on appeal from the Lucas County Court of Common Pleas. The facts giving rise to this appeal are as follows.
On December 4, 1987, appellant, Regina M. Labadie, drove to the home of appellee, Patricia Semler. Regina Labadie suspected that her husband, Samuel M. Labadie, was having an affair with Patricia Semler. When Regina Labadie arrived at the Semler home, she saw her husband drive away. Patricia Semler's minor sons, William and John Semler, were standing outside the Semler home. After exchanging words with Regina Labadie, John Semler, age sixteen, threw a snowball at the passenger side of Regina Labadie's car. William Semler, age seventeen, also threw a snowball at appellant which hit her in the face. Because the snowball contained pieces of gravel and ice, Regina Labadie sustained serious injuries to her nose, eyes and head. Labadie's injuries required surgery and hospitalization.
On June 15, 1988, Regina Labadie filed a complaint against the Semlers alleging that William Semler negligently and/or intentionally injured Regina Labadie. Regina Labadie also alleged that Patricia and Robert Semler were civilly liable for the actions of their son William under R.C. 3109.10. In a March 27, 1989 judgment entry, the court found that Regina Labadie had failed to show that William Semler had intentionally injured Regina Labadie. Rather, the court found William Semler's actions to have been negligent. The court also found that Regina Labadie had failed to use ordinary care to avoid injury to herself. Based on the court's findings, Regina Labadie was awarded $30,000 reduced by fifty percent due to her own contributory negligence. It is from this judgment that Regina Labadie appeals, setting forth the following assignments of error:
"A. The trial court's decision finding that William Semler's actions were not willful and malicious thereby finding no liability against Patricia Semler and Robert Semler, and reducing William Semler's liability by 50%, was against the manifest weight of the evidence.
"B. The trial court should not have granted Defendant Robert Semler's Motion for Direct Verdict.
"C. The trial court erred by overruling Appellant's Objections to Speculative and Irrelevant Evidence."
In her first assignment of error, appellant contends that the court erred in finding appellant to be contributorily negligent since William Semler's actions were willful and malicious. We agree.
The Restatement of the Law 2d, Torts (1965) 30, Section 18, adopted by the Supreme Court of Ohio, provides the following definition of "battery":
"(1) An actor is subject to liability to another for battery if
"(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
"(b) an offensive contact with the person of the other directly or indirectly results."
Section 20 of the Restatement further provides:
"If an act is done with the intention of inflicting upon another a harmful bodily contact or of putting the other in apprehension of either a harmful or offensive bodily contact, and if it causes an offensive bodily contact to the other, the actor is subject to liability to the other although the act was not done with the intention of bringing about the resulting offensive contact." (Emphasis added.) Restatement of the Law 2d, Torts (1965) 35, Section 20.
William Semler testified at trial that on December 4, 1987, Regina Labadie pulled up in front of William's house and began yelli
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