Opinion
No. 36596-1-II.
November 4, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-2-09407-4, Rosanne Buckner, J., entered June 22, 2007.
Affirmed by unpublished opinion per Hunt, J., concurred in by Van Deren, C.J., and Quinn-Brintnall, J.
UNPUBLISHED OPINION.
Kenneth Johnson appeals his bench trial verdict in Sharon Pantaleo's civil assault and battery action against him. He argues that (1) the trial court never found that he committed a battery; and (2) substantial evidence does not support the trial court's findings that he assaulted or battered Pantaleo and that his actions caused her injuries. Holding that an "assault" is a "battery" and that the evidence supports the trial court's findings, we affirm.
FACTS I. Assault and Battery
On July 19, 2004, Kenneth Johnson went to Sharon Pantaleo's residence and gave her something to drink that caused her to pass out. He beat her while she was unconscious, causing injuries to her face, eye, head, ear, ribs, and right shin. According to Pantaleo, the beating also aggravated her preexisting breathing and mental health problems.
II. Procedure
On July 1, 2005, Sharon Pantaleo sued Kenneth Johnson for assault and battery based on this beating. Although the police investigated the State never charged Johnson with a criminal offense related to this incident. The case proceeded to a bench trial. Testifying in Pantaleo's case in chief were: Pantaleo, her "[o]ff and on" boyfriend Robert Skuza, Johnson, and Dr. Enrique Leon, M.D. Johnson was the sole defense witness.
A. Pantaleo's Testimony
Pantaleo testified that Johnson had called her on July 19, 2004, and asked to come over but she had told him no. But he came over anyway and arrived at her house as she was preparing for bed; she was already in her pajamas. She invited him in.
She denied being naked when Johnson arrived.
They watched some television and drank drinks Johnson had brought in Styrofoam cups; Pantaleo was not sure what the drinks contained. They also shared marijuana Johnson had brought. Pantaleo had previously consumed a couple of alcoholic drinks to help her sleep, but she could not recall whether she had taken any of her prescribed Valium that day.
The next thing Pantaleo remembered was waking up as Johnson was dragging her up the stairs; she looked down and saw blood on her leg. When she told Johnson that she was bleeding, "he took off out the [front] door" without saying anything. Report of Proceedings (RP) at 113. She did not remember Johnson hitting or punching her or how she was injured, but she testified that her side hurt and that it felt as though Johnson had lifted or grabbed her by the chest.
After Johnson left, Pantaleo crawled into the living room and called Robert Skuza.
Pantaleo told Skuza that she needed help, she was bleeding, and Johnson had been there and had just left her there bleeding. Pantaleo could not tell Skuza how she became injured, but she explained that she had regained consciousness as Johnson was dragging her up the stairs.
Before the beating, Pantaleo had suffered from severe emphysema, had only one lung, and needed to use oxygen. She was taking Valium and Paxil, prescribed for depression and anxiety. She also had a history of alcoholism.
Pantaleo testified that she suffered a large gash to her shin, injuries to her eyes, fractured facial bones and ribs, and brain trauma and that one side of her face was still numb. She further testified that since the incident, she suffered from increased anxiety, breathing had become more difficult for her, and she needed to use oxygen more frequently.
Pantaleo denied inviting Johnson over to her house or having sex with him on the night of the incident. She admitted that they had sexual relations once, about four years before the incident, but stated that Johnson had never been to her house before.
B. Skuza's Testimony
Skuza testified that immediately after Pantaleo's call, he had grabbed some first aid supplies and gone to Pantaleo's house, where he found her on the living room couch. He saw instantly that her leg was bleeding from a large gash and noticed black marks on her face, and took her to the hospital immediately.
While at Pantaleo's house, Skuza noticed that the hallway light was on, observed that the upstairs lights were on, and later found that a light and a fan were on in her upstairs bedroom. He was surprised to find the upstairs lights and the fan on because Pantaleo had severe breathing problems and was unable to go upstairs without assistance.
Skuza also found a puddle of blood at the bottom of the interior stairs next to the front door and skin on the first step, which appeared to have come from someone having scraped her skin against the step while going up the stairs. It also appeared someone had moved the heavy living room coffee table away from the couch. There were paper cups on the coffee table.
Skuza testified that the cups were "paper"; Pantaleo described them as "Styrofoam." This minor discrepancy is irrelevant to the issues on appeal.
Skuza also testified that Pantaleo's injuries aggravated her need for oxygen, due, at least in part, to the increased anxiety she suffered following the incident. Skuza explained that he had called Johnson from the hospital on the night of the incident and left a message on his (Johnson's) answering machine, commenting on how inappropriate it had been for Johnson to leave Pantaleo alone in her condition. The next day, Skuza had run into Johnson at the Eagles Club. When Skuza commented that it had been inappropriate for Johnson to leave Pantaleo alone, Johnson had pushed him out the door, punched him in the stomach, and told him it was none of his business.
C. Pantaleo's Injuries
Dr. Leon, who had examined Pantaleo two days after the incident, testified that when Pantaleo arrived in the emergency room on July 19, she had tested positive for benzodiazepine, commonly known as Valium, and that he had prescribed Valium and Paxil to treat her severe anxiety. She also tested positive for marijuana use and had a blood alcohol level of .25. He stated that he had previously advised her that she should not drink alcohol while taking the anxiety medications and testified that combining these drugs could lead to blackouts or memory loss. He also stated that he was aware that, despite his advice, Pantaleo was still using alcohol to help her sleep.
Dr. Leon also acknowledged that the emergency room monitored Pantaleo's blood alcohol level and stated that this was commonly done to ensure that the hospital could release the patient without concern that the patient would hurt themselves again due to intoxication.
Dr. Leon had diagnosed Pantaleo as an alcoholic, and he testified that alcoholics tend to be clumsier than non-alcoholics. He also noted that Pantaleo had other conditions that could have affected her stability, including back issues and Sjogren's disease, an autoimmune disorder. But his treatment records did not show any other injuries caused by prior falls.
The photographs of Pantaleo taken at the hospital show a large, open gash to Pantaleo's shin about 10 cm long; abrasions on the same leg near her knee; and significant, obvious bruising on one side of her face. Dr. Leon testified that blunt facial and head trauma could cause a person to be confused or to suffer memory loss. He could not say with reasonable medical certainty what had caused Pantaleo's memory loss about how she became injured, stating that it could have been the drugs and alcohol, the head trauma, or a combination of the two.
Dr. Leon further testified about Pantaleo's injuries and the potential cause of those injuries. Pantaleo had suffered significant bruising around her right eye; facial drop, possibly due to nerve damage; three small fractures in the bones near her nose and eye; a fracture to the wall that encases the eye; a broken nose; two rib fractures; and a laceration to her shin or leg. Pantaleo's rib fractures affected her breathing. According to Dr. Leon, "A patient with her emphysema condition many times needs to take fast, large breaths, and she wasn't able to do that. So she couldn't oxygenate her body requirements well enough." RP at 28.
Pantaleo had told Dr. Leon that at the time of the incident, she had been with a friend, she had been given some kind of drink and did not remember what happened after that, she had awoken with these injuries, and she thought she had been assaulted by an acquaintance. In Dr. Leon's opinion, the injuries to Pantaleo's right eye could have been caused by a minimum of two blows of a fist. He also testified that the injuries to Pantaleo's face could have been caused by one fall if "there were multiple strikes to that area on a fall," and that a fall could have broken her ribs. RP at 23. But he also stated that it would be "difficult" or unlikely for a single fall to have caused all of Pantaleo's injuries.
Dr. Leon further testified that the shin injury could have been caused by contact with something that had sharp corners, such a doggy door, and that it could not have been caused by a fist. He stated that Pantaleo did not know how the shin injury occurred, only that it occurred at the same time as her other injuries, and he opined that it appeared to be caused by a "semi-sharp object, scraping, abrading," where there was likely an impact and then a tear.
Dr. Leon further testified that he had referred Pantaleo to an ophthalmologist for her eye injury because he was concerned she might also have a detached retina he could not detect. RP Because of her preexisting lung issues, he had also referred her for follow-up treatment with a pulmonologist, and he had sent her to an "ENT" because of the facial fractures. He had referred her to counseling at the Child and Family Center because she was exhibiting signs of posttraumatic stress disorder that were "compounding on top of her anxiety, [and] depression."
Dr. Leon stated that he had reviewed these professionals' treatment of Pantaleo and that believed the treatments were medically necessary and that their bills were reasonable.
D. Johnson's Testimony
Johnson testified that he had known Pantaleo and Skuza for several years through their association with the local Eagles Club. On July 18, 2004, Pantaleo and Skuza had seen Johnson at an Eagles picnic. According to, Johnson, (1) he had talked to Pantaleo at the picnic; (2) she had given him her telephone number and "kind of invited [him] over"; (3) she had called him the next day and invited him over to her house that evening; (4) when he arrived, she was either naked or wearing only a robe; and (5) they had consensual sex on the living room couch within five minutes of his arrival.
Johnson later contradicted this testimony when he testified that he could not recall if Pantaleo was wearing pajamas that night.
According to Johnson, Pantaleo had been drinking vodka when he arrived and she was slurring her words by the time they had finished having sex.
He denied having brought any beverages to her house and stated that he had refused her offer of marijuana.
Johnson claimed that although Pantaleo had not expressly invited him over for sex, he knew they would have sex because they "just kind of read each other's mind, kind of a wink and a nod." RP at 109. Although he had not seen Pantaleo for several years before running into her at the picnic, he and Pantaleo had had sexual relations approximately four times over the course of their acquaintanceship; that this had occurred every time they got together; and that he had been to Pantaleo's house several times before the night of the incident.
According to Johnson, after having sex, he and Pantaleo watched a ballgame on television. When he got up to leave after the ballgame was over, Pantaleo followed him into the front foyer near the interior stairs to lock the front door behind him, tripped over a "doggy door," and fell to the ground. He later stated that the "doggy door" was a plywood board that was lying on the floor in the foyer area and that he assumed Pantaleo used the board to block the foyer doorway to keep her dog from going out the front door. The lights in this area were not working and he had to find a flashlight so he could assist Pantaleo.
In contrast, Pantaleo testified that she and her guests rarely used the front door and that the front door locks automatically when it closes.
Curiously, although Johnson testified that he thought Pantaleo used this board to contain her dog, he also testified that he never saw a dog in Pantaleo's house and that Pantaleo never talked about having a dog. Both Skuza and Pantaleo testified that although Pantaleo owned a dog, there was no dog door anywhere in the house.
Johnson testified that after Pantaleo's fall, he helped her to the couch and examined her using the flashlight. Pantaleo had a bloody nose, which was the only injury observed. He specifically denied having seen any injury to Pantaleo's eye, stating that he examined her "real good with a flashlight" and that her skin was clear and white. He left 10 to 15 minutes after helping Pantaleo staunch the flow of blood from her nose and she had appeared to be "all right" at that time.
Johnson admitted that even after hearing about Pantaleo's injuries, he never attempted to contact her to see how she was doing. He thought it best to avoid contacting her after Skuza had accused him of beating her.
III. Verdict
The trial court entered a verdict for Pantaleo. It found that although Pantaleo could not recall Johnson's beating her, his explanation of the events that evening was not credible given the medical evidence. The trial court found that Johnson "assault[ed]" Pantaleo and ruled that he was liable for $28,000 in medical damages and $50,000 for pain and suffering. RP at 159. The trial court entered the following written findings of fact and conclusions of law:
FINDINGS OF FACT
. . . .
3. The Plaintiff proved beyond a preponderance of the evidence that an assault occurred.
4. Mr. Johnson's testimony was not believable. He testified that he only saw injury to the Plaintiff's nose. At Tacoma General Hospital, the police photographed severe injuries to Plaintiff's right eye and leg which Mr. Johnson should have seen.
5. Mr. Johnson testified that Plaintiff received injuries from a single fall. Dr. Leon testified that injuries to the Plaintiff's eye required two to three blows.
6. Mr. Johnson testified that Plaintiff tripped over a doggie door, but that it was so dark in the hallway he couldn't see anything. Defendant went out of the room first and did not trip over it. The Plaintiff had lived in her house for over 40 years and tripped over the unseen doggy door according to the Defendant. This explanation of Plaintiff's injuries is not plausible.
7. The testimony of Robert Skuza, the Plaintiff, and Dr. Leon were all consistent, whereas Mr. Johnson's testimony was inconsistent with facts and was not credible.
CONCLUSIONS OF LAW
. . . .
3. Plaintiff's medical bills were incurred as a result of Defendant's actions.
4. The Defendant intentionally assaulted the Plaintiff causing her injuries.
5. Plaintiff is entitled to an award of special damages of $28,000.
6. The Plaintiff is entitled to general damages for pain and suffering in the amount of $50,000.
7. The Plaintiff is entitled to costs in the amount of $1,960.38 (see attached itemization of costs as Exhibit A) and Statutory Attorney's fees in the amount of $200.00. 8.
The Court determined the tort of assault had occurred and awarded judgment to the plaintiff.
CP 60-61 (emphasis added).
Johnson appeals.
ANALYSIS
Johnson argues that (1) the trial court did not find that he committed a "battery," (2) the evidence did not support the trial court's findings that he committed assault or battery against Pantaleo, and (3) the evidence did not establish that he had caused Pantaleo's injuries. We disagree.
In his assignments of error and issue statements, Johnson also appears to challenge the trial court's award of special damages and, possibly, the amount of damages. We do not address these issues because Johnson fails to present any relevant argument or briefing. RAP 10.3(a)(6); State v. Tinker, 155 Wn.2d 219, 224-25, 118 P.3d 885 (2005) (court does not consider issues that lack adequate argument and briefing) (citing Schmidt v. Cornerstone Inv. Inc., 115 Wn.2d 148, 160, 795 P.2d 1143 (1990)).
I. Standard of Review
When the trial court has weighed the evidence, our review is limited to determining whether substantial evidence supports the trial court's findings and, if so, whether the findings in turn support the conclusions of law and the judgment. City of Tacoma v. State, 117 Wn.2d 348, 361, 816 P.2d 7 (1991) (citing Morgan v. Prudential Ins. Co. of Am., 86 Wn.2d 432, 437, 545 P.2d 1193 (1976)). Substantial evidence is evidence sufficient to persuade a fair-minded person of the truth of the finding. Fred Hutchinson Cancer Research Ctr. v. Holman, 107 Wn.2d 693, 712, 732 P.2d 974 (1987) (citing Nichols Hills Bank v. McCool, 104 Wn.2d 78, 82, 701 P.2d 1114 (1985)). We do not weigh evidence or render judgments on witness credibility because these issues are the exclusive province of the trier of fact. Ives v. Ramsden, 142 Wn. App. 369, 382, 174 P.3d 1231 (2008) (citing Affordable Cabs, Inc. v. Dep't of Employment Sec., 124 Wn. App. 361, 367, 101 P.3d 440 (2004)).
When interpreting a trial court's findings of fact and conclusions of law, we must consider them as a whole. State v. Hinds, 85 Wn. App. 474, 486, 936 P.2d 1135 (1997) (citing In re Pers. Restraint of Hews, 108 Wn.2d 579, 595, 741 P.2d 983 (1987)). We may also resort to the trial court's oral decision to interpret written findings of fact and conclusions of law to the extent the oral decision does not contradict the written findings. Hinds, 85 Wn. App. at 486 (citing State v. Moon, 48 Wn. App. 647, 653, 739 P.2d 1157, review denied, 108 Wn.2d 1029 (1987)).
II. Assault and Battery
Johnson first contends that (1) the trial court found he had "assaulted" Pantaleo and not that he had committed a "battery," and (2) the evidence does not support a finding that he committed assault because there was no evidence he caused an apprehension of battery. We hold that the trial court's finding that Johnson "assaulted" Pantaleo necessarily includes a finding that he committed a battery on her. Thus, Johnson's argument fails.
A battery is "[a] harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff or a third person to suffer such a contact, or apprehension that such a contact is imminent." W. Page Keeton et al., Prosser and Keeton on Torts § 9, at 39 (5th ed. 1984). An assault is any act of such a nature that causes apprehension of a battery. See Keeton § 10, at 43.
McKinney v. City of Tukwila, 103 Wn. App. 391, 408, 13 P.3d 631 (2000). Johnson contends that, in this context, (1) "assault" is limited to those acts that cause an "apprehension" of battery; (2) there was no evidence he created any apprehension of battery; (3) a mere apprehension of battery alone could not have caused Pantaleo's injuries; and (4) therefore, he is not liable. This argument also fails.
Although an "assault" can be "any act of such a nature that causes apprehension of a battery," McKinney, 103 Wn. App. at 408, this is not the sole definition of "assault." At common law an "assault?' is
"(1) an attempt, with unlawful force, to inflict bodily injury on another [attempted battery]; (2) an unlawful touching with criminal intent [battery]; or (3) [intentionally] putting another in [reasonable] apprehension of harm, whether or not the actor actually intends to inflict or is incapable of inflicting that harm."
State v. Madarash, 116 Wn. App. 500, 513-14, 66 P.3d 682 (2003) (quoting State v. Russell, 69 Wn. App. 237, 246-47, 848 P.2d 743, review denied, 122 Wn.2d 1003 (1993)) (emphasis added; bracketed material in original).
Given this common law definition of "assault," it is clear from the context of our case, the trial court's oral ruling, and the court's findings of fact and conclusions of law as a whole, that the trial court's finding Johnson had "assaulted" Pantaleo included a "battery."
III. Substantial Evidence A. Battery
Johnson next argues that the record does not support the trial court's finding that he "assaulted" Pantaleo because Pantaleo was likely incoherent at the time of the battery and, therefore, there was no evidence of that she apprehended a battery. As we explain above, Johnson's narrow definition of "assault" is legally incorrect. Contrary to his assertion, there is ample evidence in the record to support the trial court's finding that Johnson assaulted and battered Pantaleo and that his beating of her caused her injuries.
Additionally, the record supports the conclusion that a battery occurred. As we state above, "battery" requires? 'harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff or a third person to suffer such a contact, or apprehension that such a contact is imminent.'" McKinney, 103 Wn. App. at 408 (quoting Prosser and Keeton on Torts § 9, at 39 (5th ed. 1984)). Here, the trial court specifically found not credible Johnson's testimony about the events of the evening in question, a conclusion that we do not second-guess on review. Ives, 142 Wn. App. at 382. In addition, the following circumstantial evidence supports Pantaleo's claim that Johnson beat her while she was incoherent and that this contact was "harmful or offensive": (1) evidence that Pantaleo was not injured when Johnson arrived at her home; (2) undisputed evidence that Johnson was at Pantaleo's home at the time of her injures; (3) Pantaleo's testimony that when she regained her senses, Johnson was in the process of pulling her up the stairs and she discovered that she was injured; (4) Pantaleo's testimony that Johnson left immediately after she regained consciousness and did not stay to assist, despite her obvious injuries; (5) evidence that Pantaleo's injuries, including the large gash to her shin and considerable facial bruising, were extensive, obvious, and inconsistent with Johnson's assertion that Pantaleo merely had a bloody nose; and (6) Dr. Leon's testimony that Pantaleo's diverse injuries were inconsistent with and not likely the result of a single act or a single fall, as Johnson reported, and that her eye injuries required a minimum of two blows from a fist. Furthermore, the diversity and number of Pantaleo's injuries were sufficient to establish that Johnson had acted with intent to injure her.
B. Causation
Johnson next argues that (1) because the trial court found that he had committed assault, which requires a mere apprehension of battery, the evidence does not support a finding that he caused Pantaleo's injuries; and (2) even if the trial court found that he had battered Pantaleo, there was insufficient evidence of causation because it was just as likely that the inebriated Pantaleo fell down the stairs and caused her own injuries. This argument similarly fails.
Because we conclude that the trial court necessarily found Johnson had committed battery, Johnson's first argument clearly lacks merit. Second, the circumstantial evidence we discuss in the preceding section of this analysis, including the timing and nature of Pantaleo's injuries, is clearly sufficient to support a finding that Johnson caused the injuries, especially in light of the trial court's finding Johnson's explanations to lack credibility.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, J. and DEREN, C.J. concur.