Appellate Division, Fourth Department
Child Abuse – Identity of Issues
Robert v. Sterling
Appealed from Supreme Court, Monroe County
Background: The plaintiffs commenced an action for civil battery for injuries sustained when the defendant allegedly intentionally touched their child in an offensive manner. In an earlier criminal action, the defendant acknowledged that he had touched the child’s buttocks and pleaded guilty to endangering the welfare of a child. The plaintiff moved for partial summary judgment with respect to the civil battery because the defendant had pleaded guilty to sexually abusing the child. The defendant appealed from the grant of summary judgment.
Ruling: The Appellate Division reversed. The court held that the identity of issues required for the application of collateral estoppel is lacking. To recover damages for battery founded on bodily contact, the plaintiff must prove that there was bodily contact, that the contact was offensive and that the defendant intended to make the contact without the plaintiff’s consent. The plea colloquy only established that contact had been made.
Patrick J. Brown of Losi Gangi for the defendant-appellant; Jason E. Abbott of Fitzsimmons, Nunn & Plukas for the plaintiffs-respondents