Tobin v. Maier Elecs., Inc., et. al., No. 66-2-12 Bncv (Wesley, J., Oct. 25, 2013).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
                                               VERMONT SUPERIOR COURT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Bennington Unit                                                                                        Docket No. 62-2-12 Bncv

Betty Tobin,
Plaintiff.

v.

Maier Electronics, Inc., Siegfried Maier,
and Caroline Maier.
Defendants.
                                     Opinion & Order
                            Denying Plaintiff’s Motion in Limine

        Plaintiff sues Defendants for a violation of Vermont’s Fair Employment Practices Act,
Wrongful Termination, Intentional Infliction of Emotional Distress, Assault, and Battery. The
claims resulted from Plaintiff’s employment with Maier Electronics. Siegfried and Caroline
Maier manage Maier Electronics. Plaintiff is represented by Jeremy Dworkin, Esq. Defendants
are represented by Joel Iannuzzi, Esq.

         Allegedly, Siegfried sexually harassed Plaintiff through unwanted touching and
unwanted sexual comments. Caroline knew of the behavior and also accused Plaintiff of having
an affair with Siegfried. Maier Electronics terminated Plaintiff’s employment shortly after
receiving a letter from Plaintiff’s attorney.

       On August 28, 2013, Plaintiff filed a motion in limine. Plaintiff requested the Court
exclude testimony by Defendant’s expert that Siegfried suffers from Alzheimer’s disease and
was unable to appreciate his conduct. Defendant argued the Court should exclude this testimony
because mental capacity is not relevant in tort cases. On September 10, 2013, Defendants
opposed the motion. Defendants argued mental capacity is relevant to show whether Siegfried
was capable of forming an intent to harm. Defendants also argued mental capacity is relevant for
consideration as to Plaintiff’s claim for punitive damages. On September 19, 2013, Plaintiff
responded to Defendants’ opposition

        The issue is whether testimony about Siegfried’s diminished mental capacity is relevant
to intentional torts. “Evidence which is not relevant is not admissible.” V.R.E. 402. “‘Relevant
evidence’ means evidence having any tendency to make the existence of any fact that is of
consequences to the determination of the action more probable or less probable than it would be
without the evidence.” V.R.E. 401.

        According to the Restatement, “[o]ne who has deficient mental capacity is not immune
from tort liability solely for that reason.” Restatement (Second) of Torts § 895J. Thus, people
with diminished capacity may be “liable for their intentional torts, such as assault and battery…”
Id. cmt. b. On the other hand, mental capacity is relevant to determine if “in the particular
instance any tort has been committed at all.” Id. cmt. c. Lack of capacity is not itself a defense to
a tort but lack of capacity negates an element that a plaintiff must prove. See id.

        The law in Vermont is most developed for claims of battery. The Vermont Supreme
Court briefly addressed the importance of intent in proving a claim for battery. See Wilson v.
Smith, 144 Vt. 358, 360–61 (Vt. 1984). In Wilson, a civil case for assault and battery, the trial
court directed a verdict for a defendant because the plaintiff did not show any evidence of intent.
Id. at 360. The Supreme Court affirmed because it found a plaintiff must allege and prove intent
to prevail on claim for battery. Id. at 361. Wilson, however, does not reach the question of
whether proof of battery requires not only intent to engage in the wrongful conduct that causes
injury, but also an appreciation of the likelihood that the injury would result. See id.

        A split in authority exists among the states on the nature of the intent required to commit
battery. See White v. Muniz, 999 P.2d 814, 816–18 (Colo. 2000). The traditional view is that an
actor must not only intend the conduct but also must have some appreciation that the conduct is
likely to be offensive or harmful. Id. at 816–17. Some courts take a more limited view: the only
intent required is the intent to cause the contact. See id. at 817; see also Brzoska v. Olson, 668
A.2d 1355, 1360 (Del. 1995) (“The intent necessary for battery is the intent to make contact with
the person, not the intent to cause harm.”).

        Again, the Restatement provides evolutionary guidance on what is required to prove
battery.

        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) a harmful contact with the
        person of the other directly or indirectly results.

Restatement (Second) of Torts § 13; see also Christman v. Davis, 2005 VT 119, ¶ 6, 179 Vt. 99
(adopting the Restatement).1 The comments further explain: “an act is done with the intention
described in this Section, it is immaterial that the actor is not inspired by any personal hostility to
the other, or a desire to injure him.” Id. cmt. c.

        The most recent version of the Restatement makes further refinements: “A person acts
with the intent to produce a consequence if: (a) the person acts with the purpose of producing
that consequence; or (b) the person acts knowing that the consequence is substantially certain to
result.” Restatement (Third) of Torts: Phys. & Emot. Harm § 1. “In general, the intent required
in order to show that the defendant's conduct is an intentional tort is the intent to bring about
harm (more precisely, to bring about the type of harm to an interest that the particular tort seeks
to protect).” Restatement (Third) of Torts: Phys. & Emot. Harm § 1 cmt. b.; compare
Restatement (Second) of Torts § 8A (“The word ‘intent’ is used throughout the Restatement of
this Subject to denote that the actor desires to cause consequences of his act, or that he believes
that the consequences are substantially certain to result from it.”).

1
  In Christman, the Vermont Supreme Court relied on the Restatement (Second)’s formulation for battery in the
context of a medical malpractice claim in which it was alleged that the physician performed an operation for which
there was no consent. The ruling provides no illumination as to the issues raised by Plaintiff’s motion in limine.

                                                                                                                     2
        While acknowledging the Restatement in Christman, the Vermont Supreme Court has not
commented on the refinements, or arguable contradictions, between Restatement (Second) and
Restatement (Third) on the issue of the nature of the intent required to prove an intentional tort.
Given the absence of such explicit guidance, this Court finds the Colorado Supreme Court’s
thorough discussion in White particularly helpful in understanding how the Restatement applies.
See 999 P.2d at 814–15. The defendant was a patient at a nursing home who suffered from
Alzheimer’s disease. Id. at 815. While the plaintiff sought to change the defendant’s diaper, the
defendant stuck the plaintiff. Id. The Colorado Supreme Court discussed the level of intent
required to prove battery. See id. at 816–18. Under the Restatement and Colorado law, the
plaintiff must prove both that the defendant intended to cause the contact and appreciated the
contact was likely to be offensive or harmful. See id. at 818. Further, the court reasoned the
mental deficiency of a defendant can be relevant to show whether the defendant appreciated the
consequences of the defendant’s actions. See id. The court concluded:

       A jury can, of course, find a mentally deficient person liable for an intentional
       tort, but in order to do so, the jury must find that the actor intended offensive or
       harmful consequences. As a result, insanity is not a defense to an intentional tort
       according to the ordinary use of that term, but is a characteristic, like infancy, that
       may make it more difficult to prove the intent element of battery.
Id.

        This Court finds the reasoning of the Colorado Supreme Court persuasive. As in White,
our case involves allegedly offensive touching by a defendant who claims to have been suffering
from cognitive impairment. See id. at 815. The Vermont Supreme Court has emphasized a
plaintiff must prove all elements of battery, including intent. See Wilson, 144 Vt. at 360. Further,
Vermont seems likely to follow the Restatement on the level of intent required to prove battery.
See Christman, 2005 VT 119, ¶ 6. Under the reasoning of White, the Restatement requires
plaintiff prove not only intentional contact but also an appreciation for the offensiveness of the
contact. See 999 P.2d at 818. Additionally, this Court’s reading of the Restatement and its
comments suggest that a person must be able to appreciate the likely consequences of contact.
See Restatement (Third) of Torts: Phys. & Emot. Harm § 1 cmt. b.; White, 999 P.2d at 818;
Wilson, 144 Vt. at 360 (requiring proof of intent).

         Taking the reasoning a step further, evidence of mental deficiency may be relevant to
show a defendant did not appreciate the consequences of the defendant’s actions. Again, White is
persuasive. Mental deficiency is not itself a defense to an intentional tort. See White, 999 P.2d at
818. A defendant may raise mental deficiency as a characteristic that makes it more difficult for
a plaintiff to prove the intent and appreciation of the defendant. Id. The reasoning in White is
consistent with the Restatement in that the deficiency is not itself a defense but can still be
relevant. See id.; Restatement (Second) of Torts § 895J. Furthermore, this reasoning applies to
all intentional torts and not only to battery. Therefore, the Court concludes evidence of
Defendant’s mental impairment is relevant to this case. See V.R.E. 401.

        Plaintiff insists that White is inconsistent with settled precedent in Vermont. See Shedrick
v. Lathrop, 106 Vt. 311 (1934). The Court disagrees. Shedrick involved a tort action “for the

                                                                                                   3
alienation of the affection of plaintiff’s wife by adultery.” Id. at 313–14. The defendant offered
insanity as a defense. Id. at 314. The court ruled: “Insanity of the defendant is no defense to the
award of compensatory damages. An insane person is liable in damages for his torts.” Id. at 317
(citing Morse v. Crawford, 17 Vt. 499 (1845)). The Court also held the jury could consider
insanity on a claim for exemplary damages. Id. 317–18.

        Shedrick does not control the outcome here. First, this Court’s ruling is not that insanity
is a complete defense to battery or any other intentional tort, but rather that it is relevant to
whether a defendant had the required intent to commit such tort. See White, 999 P.2d at 818;
Wilson, 144 Vt. at 360. Second, Shedrick involved circumstances distinctly distinguishable from
those here. Shedrick involved a claim for alienation of affections, a tort that no longer exists in
Vermont. See id. 106 Vt. at 313–14; 15 V.S.A.§ 1001. Although insanity may not have been a
defense to alienation of affections stemming from adultery, the ruling in Shedrick sheds no light
on the relationship between proof of a mental defect and whether a defendant intended to commit
battery and other intentional torts. Finally, the reasoning of Shedrick is extremely limited,
notably omitting any discussion of whether the then tort of alienation of affections required proof
of any particular intent. See id. 317–18. Shedrick merely states a rule applicable to a case with
facts that differ dramatically from facts of this case. Id.

        Morse is distinguishable for similar reasons. See 17 Vt. at 499. In Morse, the defendant
killed an ox that belonged to the plaintiff. Id. The defendant claimed he was insane and sought a
jury instruction that insanity was a defense. Id. at 499–500. The trial court instructed the jury that
if the defendant killed the ox during a lucid interval then he was liable to plaintiff. Id. at 500. The
jury found for plaintiff. Id. The Supreme Court upheld the verdict, while noting that insanity is
not a defense in tort law. Id. at 502–503. Again, this Court does not quarrel with the principle
that insanity affords no complete defense to a tort claim. Nonetheless, mental deficiency is still
relevant to whether the plaintiff can prove the required intent associated with the particular tort
alleged.

        Plaintiff further argues this Court should not find the reasoning of White persuasive
because it concerned a special case—a suit by caregiver for a person with a mental deficiency.
See 999 P.2d at 815. The Colorado Supreme Court addressed this issue in a footnote and
declined to rely on any assumption of the risk in coming to its conclusion. See id. 818 fn. 7.
Plaintiff also cites the Restatement (Third) of Torts: Liability for Physical & Emotional Harm §
11 to show Plaintiff’s interpretation conforms with the modern view of mental impairment in tort
law. Yet, that section falls under the Restatement’s discussion of negligence. Plaintiff makes
claims for intentional torts, thus this Court need not address the role of mental impairment as it
bears on a negligence action.2




2
  The Court reaches none of the arguments relating to insurance cases. As the parties observe, the Vermont Supreme
Court has ruled on the relevance of mental capacity in insurance cases. See Coop. Fire Ins. Ass’n v. Combs, 162 Vt.
443, 448 (1994). Combs relied on presumptions that do not necessarily apply outside of the insurance context. See
id. at 445–46. Additionally, in another insurance case, the Vermont Supreme Court refused to consider the
relevance of diminished mental capacity of the perpetrator in a sexual harassment case , but that was because it
found no evidence of diminished capacity. See Allstate Ins. Co. v. Vose, 2004 VT 121, ¶ 20, 177 Vt. 412.

                                                                                                                 4
        Finally, Plaintiff insists in a footnote that it is unlikely the evidence presented by
Defendants would survive a Daubert review. See V.R.E. 702; Daubert v. Merrell Dow
Pharmaceuticals Inc., 509 U.S. 579 (1993); see also State v. Brooks, 162 Vt. 26, 30 (1993)
(adopting Daubert as the standard for reviewing expert testimony). This approach is inadequate
to the presentation of a Daubert challenge in connection with the current motion in limine.

                                            Order

      For the reasons discussed in this opinion, the Court DENIES Defendant’s Motion in
Limine.

       Dated at Bennington, Vermont on October 25, 2013


                                                           John P. Wesley
                                                           Superior Court Judge




                                                                                                 5
