In 1948, the Supreme Court of Nebraska held in Newman v. Christensen that an injury occasioned by horseplay gave rise to a cause of action in negligence rather than battery, thus affording plaintiff a longer statute of limitations. In so doing, the court adopted the minority definitions of both assault and battery which require an intent to injure to be proved. This is an element of criminal law which is usually not carried over into tort law. This article compares intentional tort and negligence, showing that the "horseplay" case is and has been capable of being analyzed as a civil battery. The article also considers the practical differences in liability between intentional tort and negligence, concluding that although they might not be sufficient in Nebraska to require distinction between intentional tortious battery and negligence in this peculiar situation, the Nebraska plaintiff is denied a legitimate cause of action in the "horseplay" case.
Ronald J. Dolan,
Intent in Civil Assault and Battery in Nebraska,
46 Neb. L. Rev. 862
Available at: http://digitalcommons.unl.edu/nlr/vol46/iss4/7