Personal Injury: § 9.08 Forms—Causes of Action

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3 Personal Injury--Actions, Defenses, Damages § 9.08

Copy Citation

Author

By 

Constance F. Fain, 

Earl Carl Professor of Law, 

Thurgood Marshall School of Law, 

Texas Southern University

§ 9.08 Forms—Causes of Action

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FORM 9:1 Cause of Action Against City Where Policeman Shot Plaintiff

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. [Allege giving of notice of claim or making of demand and rejection thereof, if and as required]

3. At all times hereinafter set forth and mentioned, one ________________ was employed by the defendant, the City of ________________, as a police officer, bearing Shield Number ________________ .

4. On [date], in the vicinity of ________________, the said ________________ (police officer) discharged a revolver.

5. The bullet or bullets so discharged from the revolver by said ________________ (police officer) struck the plaintiff.

6. At the time and place aforesaid, said ________________ (police officer) was in the employ of the defendant, the City of ________________, and was working for the city of ________________ , within the scope of his employment, and was acting in pursuance of the authority given to him by the defendant, the City of ________________.

7. In so discharging his revolver, the said ________________ (police officer) committed a willful, unlawful, and intentional assault upon the plaintiff.

8. The said assault on the part of the said ________________ (police officer) was unnecessary and unwarranted in the performance of his duties as a police officer of the City of ________________, and constituted an unreasonable, unwarranted, and excessive use of force.

9. [Allege injuries and damages] As a result of the aforesaid assault, the plaintiff sustained severe, painful, and permanent injuries, necessitating medical aid and treatment, and hospitalization and disabling him from his employment, all to his damage in the sum of  ________________ $.

[Prayer of demand for relief; signature of attorney; and verification where required]

Note: Adapted from Bynum v. City of New York, 255 N.Y.S.2d 652 (1964), courtesy of Austin Titus, Esq., Brooklyn, New York.

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FORM 9:2 Cause of Action Against Dentist for Assault

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegation, where required]

2. At all times hereinafter mentioned the defendant maintained an office in the Town of ________________, County of ________________, State of ________________ for the practice of dentistry and held himself out as a skilled dentist and dental surgeon in caring for the teeth of human beings. 

3. On ________________ [date], plaintiff consulted with the defendant because of a severe toothache in the upper left side of her mouth.

4. Defendant represented to plaintiff that she had an abscess under the gum and that it was necessary to give her anesthesia to clean out the abscess.

5. While plaintiff was under the influence of the anesthesia, defendant removed two of her teeth, to wit (describe teeth that were removed).

6. [Allege damages] Solely by virtue of the removal of the aforesaid teeth by the defendant, plaintiff suffered irreparable injury to the left side of her jaw consisting of a cosmetic deformity and an inability to obtain proper motion to eat, speak or otherwise use the jaw as she was able to do prior to her visit to the defendant on the ________________ [date].

7. Plaintiff did not give the defendant permission to remove any of her teeth and would not have given such permission if she had been requested to do so. Defendant never informed plaintiff of the possible complications of such a procedure, of the risk or peril in removing teeth where the surrounding area was so diseased, of the probability of permanent jaw damage or of the inherent danger to surrounding bone and tissue in such a procedure, all of which would have caused plaintiff to refuse to give her consent.

8. Solely by reason of the foregoing, plaintiff became incapacitated to perform her usual occupation, became and will continue to be disabled and has expended and will continue to expend large sums of money for medical, dental, drug and household care.

[Prayer of demand for relief; signature of attorney; and verification where required]

Note: Adapted from Bender’s Forms of Pleading. This form is based on assault and battery due to the failure of a patient to consent to a medical procedure. Allegation of negligence is not required.

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FORM 9:3 Cause of Action Where Patient Assaulted at Hospital by Employee

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegation, where required]

2. Upon information and belief, at all times hereinafter mentioned, the defendant was engaged in the business of operating a hospital at ________________ Street, ________________ County, in the State of ________________.

3. Heretofore and prior to ________________ [date], the plaintiff was a patient in the hospital of the defendant and as such was entitled to be protected by the hospital, its agents, and employees against [battery], assault and negligence.

4. Heretofore and on or about ________________ [date], the plaintiff was assaulted by and a [battery] upon her body and person was committed or perpetrated by an agent, or employee, of the defendant.

5. [Particularize negligence, if and as required; allege freedom form contributory negligence, if and as required] The occurrence and resultant injury and damage to the plaintiff were occasioned by the defendant’s sole negligence, causing or permitting the plaintiff to be moved without any proper instructions; in wrongfully dressing and placing the plaintiff in a wheelchair and removing the plaintiff from her bed and room; in taking the plaintiff to an unauthorized and improper area; in leaving the plaintiff with unauthorized and incompetent personnel in reckless disregard of the plaintiff’s safety; in failing to carry out the standing orders and instructions of plaintiff’s physician; in carelessly and negligently selecting and maintaining employees who were incompetent to perform their proper functions; and in failing to take any or adequate measures to prevent the happening of the incident complained of.

6. [Allege injuries and damages]

[Prayer of demand for relief; signature of attorney; and verification where required]

Note: Adapted from Conte v. Hospital For Joint Diseases, 31 A.D.2d 744, 297 N.Y.S.2d 342 (1969), courtesy of Fuchsberg & Fuchsberg, Esqs., New York, New York.

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FORM 9:4 Cause of Action Alleging Assault and Trespass Justifying Award of Punitive Damages

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegation, where required]

2. On or about ________________ [date], plaintiff was in actual and peaceable possession of a certain house and land located at ________________ Avenue, ________________ County, State of ________________, which house plaintiff, together with her three minor children, was then and there occupying as her home and domicile.

3. On said date, at approximately ________________, after plaintiff and her children had retired for the night, the defendants came to the house and began shouting and banging on the door, loudly demanding that plaintiff open the door and permit them to enter.

4. Plaintiff refused to open the door and ordered defendants to immediately leave the premises.

5. Defendants failed to leave the premises as ordered, but instead wrongfully and unlawfully began yelling and shouting and cursing at plaintiff and began pounding, banging, and kicking the house and the door. Defendants threatened to “break plaintiff’s neck” and inflict other physical violence and bodily injury upon her.

6. Defendants, then and there, unlawfully, maliciously, and with force, smashed through and broke open the door and broke into and entered the house.

7. The foregoing acts of defendants were committed in the presence of plaintiff and her minor children and were accompanied throughout by vile and obscene profanity, vulgarities, and threats shouted and hurled at plaintiff and her children by defendants.

8. Said acts and conduct were willfully, maliciously, unlawfully, and violently done by defendants, with a wanton disregard of the rights of plaintiff, wherefore, plaintiff demands exemplary and punitive damages against defendants.

9. [Allege injuries and damages] As a direct and proximate result of the aforesaid acts and conduct of the defendants, the plaintiff suffered the following damages.

(a) The plaintiff became sick, frightened, nervous, and upset and suffered, and will continue to suffer in the future, severe mental and physical pain and anguish, anxiety, embarrassment, and humiliation; further, plaintiff was caused to feel insecure and unsafe in her home and was caused to suffer and remain in a state of severe nervous shock. In addition, plaintiff’s peace of mind was disturbed and destroyed.

(b) Plaintiff’s minor children became frightened, nervous, and upset and were caused to suffer nervous strain and mental and physical pain and anguish, all of which contributed to, intensified, and aggravated plaintiff’s injuries as aforesaid.

(c) Plaintiff’s home was damaged, and she incurred expenses in repairing it; further, as a result of the damage to the door of her house and the fright and fear instilled in plaintiff and her children by defendants, plaintiff was obliged to incur additional expense to hire and pay a guard to protect her homez

[Prayer of demand for relief; signature of attorney; and verification where required]

Note: Adapted from Mendoza v. Farrell, 199 So. 2d 750 (Fla. Dist. Ct. App. 1967). The court held that the allegations of a complaint from which this form was adapted stated sufficient facts to justify the allegations of willfulness, wantonness, and maliciousness, and hence it was error to transfer the cause to a court of which the maximum jurisdiction did not exceed $5,000.

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FORM 9:5 Cause of Action for Assault, Threats, and Trespass

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegation, where required]

2. Upon information and belief, at all times hereinafter set forth, defendant was and still is a resident of the County of ________________ and State of ________________.

3. In or about ________________ and ________________ [date] and on many and various previous occasions and occasions since said times, defendant willfully and maliciously and without any just cause of provocation ran toward plaintiff in a threatening manner in the street, on the sidewalk, in ________________ Terminal and in other public and private places, and in such places did make threatening gestures, grimaces, leers, distorted faces, and malign looks upon plaintiff, and further did make ridiculous utterances and laughs, all the time at a close proximity to plaintiff.

4. Further, defendant, at or about the times set forth herein before, and on several occasions, and while plaintiff was lawfully driving his automobile, and without any just cause or provocation, drove defendant’s automobile in a dangerous and threatening manner, following plaintiff’s automobile at a dangerously close distance.

5. Defendant, at or about the times set forth herein before and on several occasions and while the plaintiff was lawfully walking to his place of employment, and without any just cause or provocation, did follow plaintiff on foot at a close proximity to plaintiff, walking closely behind plaintiff, in front of plaintiff, or at the side of plaintiff in a threatening manner.

6. Upon information and belief, at or about the times herein before set forth and on many occasions and without just cause or provocation, defendant did unlawfully telephone plaintiff at his home and at his place of business, and upon plaintiff’s lifting the receiver to speak, either hung up or remained on the line without making any utterance.

7. The foregoing acts by defendant were willful and malicious and were intended to cause plaintiff physical, mental, and emotional illness, fright, fear, and shock.

8. [Allege injuries and damages] As a result of the foregoing, plaintiff was caused severe emotional and mental suffering and distress, sleeplessness, aggravation, all of which in turn caused plaintiff to become physically debilitated.

9. As a result of the foregoing, plaintiff has been damaged in the sum of $ ________________.

Note: Adapted from Flamm v. Van Nierop, 56 Misc. 2d 1059, 291 N.Y.S.2d 189 (Sup. Ct. 1968), courtesy of Rosenwasser & Halperin, Esqs., New York, N.Y.

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FORM 9:6 Cause of Action for Assault by Threatening with Knife

[Caption and Introductory Statement]

1. [Jurisdiction; venue; character or identification of the parties and capacity allegation, where required]

2. On or about ________________ [date], at ________________, defendant assaulted plaintiff by drawing a knife and threatening to take the life of the plaintiff and then and there, brandishing the knife, did chase plaintiff along the lands of defendant.

3. [Allege injuries and damages] By reason of the wrongful and malicious acts of defendant and of the fright caused plaintiff, plaintiff became sick and was confined to his home for a long period of time and was compelled to pay out large sums of money to cure himself of the sickness, suffered great pain in mind and body, and otherwise was injured, all to his damage in the sum of  ________________ $.

[Prayer or demand for relief, signature of attorney; and verification where required]

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FORM 9:7 Cause of Action for Assault by Discharge of Gun

Modify Form 9:6 supra by substituting the following paragraph:

2. On or about ________________ [date], at ________________, defendant assaulted plaintiff by willfully and maliciously pointing a loaded revolver at plaintiff and discharging the same at him.

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FORM 9:8 Cause of Action for Assault by Discharge of Gun—Another Form

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. At all times herein mentioned, plaintiff was a resident of No. ________________ Street, ________________.

3. Defendant was a resident of No. ________________ Street, which premises are directly opposite the residence of plaintiff.

4. On or about ________________ [date], the defendant willfully and maliciously assaulted plaintiff by wantonly, recklessly and unlawfully discharging a loaded gun frequently and at short intervals from a window in his residence toward a window in plaintiff’s apartment while plaintiff was therein.

5. As the defendant discharged his loaded gun directly at plaintiff’s window, the bullets broke the plaintiff’s windows and were striking within the room where plaintiff was, some bullets striking household articles and others penetrating deeply into the walls placing plaintiff in great fear of her life.

6. The lights were lit in plaintiff’s apartment so that defendant knew or should have known that the apartment was occupied.

7. A few moments before defendant commenced discharging his loaded gun, plaintiff had given birth to a child so that she lay on her bed helpless and unable to move.

8. [Allege injuries and damages] Plaintiff suffered extreme fright, nervous shock and hysteria and became delirious as a result of defendant’s wrongful acts, and has become greatly weakened in her bodily health and strength, and continues to be extremely nervous and hysterical as a further result, her breasts have been greatly affected so that she is unable to feed her child naturally and she is informed and believes that she may never be able to feed her present child or any future child naturally. The extreme fright and shock to plaintiff caused by defendant’s wrongful acts have resulted in a weakening of her heart, and she is informed and believes that this may result in her sudden death in the future.

[Prayer or demand for relief; signature of attorney; and verification where required]

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FORM 9:9 Cause of Action for Fright Based on Assault Upon Third Person

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. At all times herein mentioned, ________________ was married and residing with her husband ________________, at ________________.

3. On or about ________________ [date], plaintiff was walking along ________________ Street, ________________, when defendant came up to plaintiff’s husband from across the street.

4. Defendant then and there willfully, wantonly, maliciously and without regard of the rights of the plaintiff, did curse and abuse plaintiff’s husband and, drawing a pistol from his pocket, threatened to shoot and kill him.

5. Defendant continued to point the pistol at plaintiff’s husband for approximately 10 minutes, and during all of that time was continuously threatening to discharge the same at plaintiff’s husband.

6. The willful, wanton and malicious conduct of defendant caused plaintiff to become greatly terrified and frightened, causing the injuries hereinafter alleged.

7. [Allege injuries and damages] Plaintiff about six weeks previously had been confined in childbirth and was still, as a result thereof, in delicate health, all of which the defendant well knew. As a result of defendant’s wrongful and malicious acts, plaintiff fainted, was attacked by a nervous chill, and her nervous system gave way. Plaintiff was then confined to her bed for the greater part of two weeks, and ever since that time she has been in a highly nervous state so that she does not sleep well and is easily disturbed and frightened by any unusual noise or occurrence, all to plaintiff’s damage in the sum of ________________ $.

[Prayer or demand for relief; signature of attorney; and verification where required]

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FORM 9:10 Cause of Action for Assault and Battery Against Owner of Bar by Employee and Patron

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. On ________________ [date], at or about the hour of ________________ o’clock a.m., plaintiff A, ________________ , was employed at defendant’s bar as a barmaid and plaintiff B, ________________ , was a customer in the bar. On said date and at said time defendant entered the said premises, falsely accused plaintiff A, ________________ , of stealing from him and fired her, whereupon plaintiff A, ________________ , requested payment from defendant of the sum of $________________ which defendant owed her as wages for previous work done.

3. Defendant handed plaintiff A, ________________ , the $ ________________, he owed her and then suddenly without provocation or justification defendant attacked and beat plaintiff A, ________________ , violently about the head and face with his fists, meanwhile cursing, reviling, insulting and threatening her. During this time, plaintiff B, ________________ , begged defendant not to hit plaintiff A, ________________ , any more, but defendant’s response to this was to turn and hit plaintiff B, ________________, in her face in the area of the bridge of her nose and her eyes with such great force and violence that her head was knocked into a table and onto the floor, both which her head struck with sharp impact, all rendering her unconscious on the floor, where she remained in said state for a long time, defendant meanwhile returning immediately to continue beating plaintiff A, ________________.

4. Thereafter, when defendant had ceased beating plaintiff A, ________________, and learned that someone had called the police he left the premises. When the police arrived they took plaintiff B, ________________ , to ________________ Hospital in the City of ________________ where she was refused any treatment other than brief emergency care due to her ineligibility as a charity patient and her then lack of funds.

5. [Allege injuries and damages] As a consequence of said unlawful, unprovoked and vicious assault and beating inflicted upon plaintiff by defendant, plaintiffs were forced to seek the aid of private physicians and sustained the following injuries: 

Plaintiff A: (itemize).

Plaintiff B: (itemize).

[Prayer or demand for relief; signature of attorney; and verification where required]

Note: Adapted from Davis v. Pena, 222 So. 2d 595 (La. App. 1969), courtesy of Joseph B. Stahl, Esq., New Orleans, La.

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FORM 9:11 Cause of Action by Patron Against Employer and Employee for Assault and Battery with Gun by Employee

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. On or about ________________ [date], at approximately ________________ a.m. plaintiff drove his ________________ automobile into a public service station located at ________________ Highway, ________________, ________________ , owned and operated by ________________ Oil Company, defendant herein.

3. ________________ , defendant herein, was the attendant on duty at said service station on said date and was an employee of defendant ________________ Oil Company and was acting within the course of his employment at all times pertinent hereto.

4. ________________ (employee) put ________________ cents (________________) worth of gasoline into the gasoline tank of plaintiff’s automobile, then stopped when he learned that plaintiff intended to pay with a check.

5. Plaintiff informed ________________ (employee) that he would have to go home to get the cash to pay for the gasoline or that if ________________ (employee) desired he could call the local law enforcement officials.

6. The said ________________ (employee) refused to call the local law enforcement officials, and plaintiff had turned and was walking from the office of the service station toward his automobile when plaintiff was shot from behind by ________________ (employee).

7. Plaintiff believes and is informed and therefore alleges that he was shot with a .32 caliber pistol.

8. The action of ________________ (employee) in shooting plaintiff was unlawful, willful and unprovoked and without legal justification whatsoever, and constituted an unlawful assault and/or battery.

9. ________________ (employee) was the aggressor in said assault and/or battery.

10. If, alternatively, this (Court) should find that plaintiff was in any way the aggressor, which is specifically denied, then plaintiff shows that greater force than necessary was used by ________________ (employee).

11. [Allege injuries and damages] The bullet from the pistol struck plaintiff in the rear of his left upper leg and lodged therein and caused the following damage: (describe).

12. The acts complained of herein above were committed by ________________ (employee) while said defendant was acting within the course and scope of his employment with ________________ Oil Company, thus rendering said defendant company liable to plaintiff under the principle of respondeat superior by which ________________ Oil Company, as master and employer, was responsible for the acts of its servant and employee.

[Prayer or demand for relief; signature of attorney; and verification where required]

Note: Adapted from Jefferson v. Rose Oil Co. of Dixie, 232 So. 2d 895 (La. Ct. App. 1970), courtesy of Bobby L. Culpepper, Esq., Jonesboro, Louisiana.

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FORM 9:12 Cause of Action Against Limousine Company for Assault and Battery by One of its Drivers Upon a Motorist

[Caption and Introductory Statement] 

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. At all times material hereto the defendant, ________________, was, and still is, engaged in the business of operating automobile limousines and buses, and carrying passengers for hire within and about ________________ County, ________________, and principally between the airport and hotels and motels located in and around ________________, ________________, and in pursuance of that business maintained its various motor vehicles and limousines and employed various agents, servants and employees to operate its limousines and buses and to conduct its business of operating as a common carrier of passengers for hire.

3. On or about ________________ [date], the plaintiff was driving his car east on the Airport Expressway, when a bus of the defendant, ________________, and being driven by A, drove alongside the plaintiff’s automobile into the median strip of said Expressway by virtue of the said bus being driven closer and closer to the plaintiff’s automobile and into its lane of traffic. Thereafter, A maneuvered the said bus in front of the plaintiff’s automobile and stopped suddenly, causing the plaintiff to bring his car to a halt in order to avoid striking the bus, and drove it onto the median strip.

4. A, while in or as incident to, the course and scope of his employment by ________________, had been driving said bus from the airport to ________________ “on a job” and was working for said defendant at the time of the foregoing, and did get out of his vehicle and walk back to the plaintiff’s automobile, and while the plaintiff still remained strapped into his seat by his seat belt, A did then and there open the door on the driver’s side of the plaintiff’s automobile and, without provocation on the part of the plaintiff, did unlawfully and intentionally strike, beat and otherwise manhandle the plaintiff with force and violence in and about his face and body which resulted in plaintiff receiving various and sundry injuries on and about his body, all having occurred as aforesaid, while A was engaged as an employee in the business of  ________________ and as an incident of the course and scope of his employment.

5. [Allege damages]

[Prayer or demand for relief; signature of attorney; and verification where required]

Note: Adapted from Forster v. Red Top Sedan Serv., Inc., 257 So. 2d 95 (Fla. Dist. Ct. App. 1972).

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FORM 9:13 Cause of Action Against Supermarket for Assault and Battery Upon Minor Child

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. The plaintiff is a minor child residing with her parents and legal guardians in ________________ ,  ________________ County, ________________.

3. On or about ________________ [date], and at all times material herein, the defendant owned, operated, and controlled a supermarket located at  ________________  Avenue, ________________, ________________.

4. At all times mentioned and at all times material herein, the defendant acted by and through its agents, servants and/or employees, acting in the course and scope of their agency and/or employment.

5. On or about ________________ [date], the plaintiff, accompanied by her mother, A, was in and about the premises of the said supermarket, pursuant to making certain purchases therefrom, at which time certain agents, servants and/or employees of the said defendant, namely, B and C, while acting in the course and scope of their employment, did violently and repeatedly abuse, strike and assault the plaintiff upon her arms and body in a deliberate, willful, malicious and brutal manner, causing the plaintiff certain injuries as hereinafter more particularly alleged.

6. [Allege injuries and damages] As a direct and proximate result and consequence of the wrongful acts of the defendant, the plaintiff suffered the following damages:

(a) Injuries in and about her head, body, limbs and nervous system, and among them including, but not exclusively, the following: contusions; post traumatic neuroses; personality change; shock and damage to her nervous system and other injuries as yet undiagnosed.

(b) Great mental and physical pain and suffered embarrassment and humiliation and will in the future continue so to suffer; and has suffered great physical handicap and will in the future continue so to suffer.

7. Plaintiff was prevented from pursuing the normal pursuits of happiness and enjoying a normal life, and will be so prevented in the future.

[Prayer or demand for relief; signature of attorney; and verification where required]

Note: Adapted from Stevens Markets, Inc. v. Markantonatos, 189 So. 2d 624 (Fla. 1966). The jury returned a verdict in the amount of $5,000 punitive damages for the minor plaintiff, $1,000 compensatory damages for the minor’s father, and “No Dollars” to the minor as compensatory damages. The trial court resubmitted the verdict of “No Dollars” compensatory damages to the jury, but did not resubmit the other two verdicts. The Florida Supreme Court reversed, holding that it was error to resubmit only one of three verdicts to the jury.

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FORM 9:14 Cause of Action by Husband and Wife Against Owner of Trailer Park and Manager Thereof for Assault and Battery

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. At all times mentioned herein, defendant, C, was the owner and operator of the ________________ Trailer park, located at ________________ Highway, ________________ , ________________  County, ________________, and defendant, D, was employed by defendant, C, to manage said trailer park. 

3. On or about ________________ [date], at approximately ________________ m., defendant, D, acting within the scope of his employment as manager of said trailer park on behalf of defendant, C, viciously, maliciously, willfully, wantonly, and without legal justification or excuse, assaulted and battered plaintiff, A, by repeatedly striking him in the head and face with a metal jack, inflicting a brain concussion on plaintiff, knocking out his teeth, dislocating his eye, and fracturing almost every bone in said plaintiff’s face, including his nose, both cheekbones, and jaw.

4. Said defendant’s conduct was so vicious, willful, wanton, and malicious as to justify the imposition of punitive damages.

5. [Allege injuries and damages] As a direct result of said defendant’s outrageous conduct, plaintiff, A:

(a) Was rushed to the emergency room of ________________ Hospital, where he presently is and will in the future be under the care of doctors and nurses. Plaintiff has been required to undergo surgery to repair the damage to his head and face, and will require surgery in the future;

(b) Has suffered exquisite pain and suffering, and will continue to so suffer in the future;

(c) Has lost earnings and will lose earnings in the future;

(d) Has been permanently disabled;

(e) Has suffered a permanent impairment of his earning capacity;

(f) Has incurred and will continue to incur expenses for the services of doctors and nurses, as well as hospital and drug bills.

(g) Is and will be permanently disfigured;

(h) Has been and will be humiliated and embarrassed.

Note: Adapted from Dye v. Reichard, 183 So. 2d 863 (Fla. Dist. Ct. App. 1966). Based upon the complaint in this case, the plaintiff recovered a judgment against both defendants for $30,000 compensatory damages and $30,000 punitive damages.

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FORM 9:15 Cause of Action Against Store for Assault and Battery in Connection with Charge of Having Stolen Goods in Which Separate Count for Negligence in Hiring Employees is Alleged

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. On or about ________________ [date], plaintiff was lawfully in the store of said defendant as a customer for the purpose of purchasing goods and wares sold therein.

3. At the said time and place an employee, agent or servant of defendant, while acting within the scope of his authority and employment and in behalf of defendant, roughly and violently grabbed and seized the plaintiff with force and arms and charged her with having stolen goods from the said defendant and forced her to go into a room in the said store, and plaintiff was there detained by force and threats against her will and consent.

4. Plaintiff did not steal any goods or things from defendant and she then and there so stated and demanded to be released.

5. [Allege injuries and damages]

Note: Adapted from Jefferson Stores, Inc. v. Caudell, 228 So. 2d 99 (Fla. Dist. Ct. App. 1969).

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FORM 9:16 Cause of Action by Member of Club for Assault by Club’s Employee

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. At all times hereinafter mentioned, plaintiff was and still is a resident of the City of ________________, County of ________________, and State of ________________ .

3. Upon information and belief, at all times hereinafter mentioned, defendant ________________ Club, Inc., was and still is a domestic corporation, doing business in the County of ________________, State of ________________ . 

4. Upon information and belief, at all times hereinafter mentioned, defendant ________________ was and still is a resident of the County of ________________, State of ________________ . 

5. Upon information and belief, at all times hereinafter mentioned defendant ________________ owned, operated, managed, and controlled certain premises located in ________________ Beach, County of ________________ , State of ________________ , known as ________________ Club, comprising in part certain real and personal property, of which a certain building, with dinning room, entry way and various other rooms contained therein, was a part. Said real and personal property aforementioned is for convenience hereinafter referred to as the“club.”

6. Upon information and belief, at all times hereinafter mentioned, defendant ________________ was in the employ of and was the agent and servant of the defendant ________________ Club, and at all times hereinafter mentioned acted within the scope of his said employment and for and on behalf of his said employer.

7. At all times hereinafter mentioned, plaintiff was a member of the defendant-club, and as such entitled to the use of the facilities, appurtenances, rooms and equipment of said club.

8. On or about [date], plaintiff was lawfully and properly upon the club premises by virtue of his status as a member thereof, seeking to and utilizing the facilities, appurtenances, rooms, and equipment of the said club.

9. On or about ________________ [date], and at or about ________________ p.m., of that day, and while plaintiff was lawfully and properly upon club premises as aforementioned, defendant ________________, acting for and on behalf of the defendant ________________ Club and within the scope of his employment, as aforementioned, maliciously and intentionally, without just cause or provocation and solely with intent to inflict bodily harm upon plaintiff, did assault, batter, beat, and strike plaintiff.

10. [Allege injuries and damages] By reason of the foregoing, plaintiff was rendered sick, sore, lame, and disabled, sustained serious and grievous injuries to his head, brain, ears, body, and limbs, and suffered pain, distress, and shock, some of which injuries plaintiff was informed and verily believes will be permanent in nature.

11. As a result of the foregoing, plaintiff incurred and, upon information and belief, will hereafter incur expenses for his medical care and treatment, and has been and will in the future continue to be hindered and impeded in the performance of his vocation, with consequent loss of earnings.

Note: Adapted from Reiback v. Malibu Shore Club, Inc., 23 A.D.2d 829, 259 N.Y.S.2d 261 (1965). This form was prepared by Harry H. Lipsig, Esq., New York, N.Y. and supplied courtesy of Copal Mintz, Esq., New York, N.Y.

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FORM 9:17 Cause of Action for Assault and Battery—Tenant Against Landlord and Rental Agent Based Upon Negligent Retention of Violent Janitor

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. At all times herein mentioned, defendant  ________________ was the owner of the ________________ Apartments in , ________________ and defendant ________________ was engaged in the property management business in that City and was employed by ________________ to manage the ________________ Apartments, including hiring of all employees required to maintain the same, and plaintiff was a tenant in the building.

3. In the course of management of the ________________ Apartments, defendant, ________________, hired ________________ to work as a janitor therein.

4. On or about ________________ [date], ________________, while so employed by defendant, ________________ came in an intoxicated condition upon the premises leased by plaintiff and requested a loan from plaintiff in an angry manner. When plaintiff refused the loan, ________________ knocked plaintiff down, jumped on top of him and beat him about the head and body, inflicting upon him the injuries hereinafter alleged.

5. ________________ at times during his employment by defendants had exhibited to other tenants of the defendants traits of dissipation and irresponsibility and was addicted to periods of drunkenness while on the premises of defendants. While under the influence of intoxicants ________________ was of a quarrelsome nature and possessed a violent temper and was unsuited to the employment assigned to him by defendants ________________ had physically assaulted and abused another tenant of defendants, of which actual notice had been given to defendants.

6. The injuries sustained by plaintiff resulted from the negligence of the defendants in retaining in their employ ________________, a violent and unsuitable employee.

7. [Particularized negligence, if and as required] The negligence of the defendants, in addition to that herein above alleged, consisted of retaining ________________ in their employ, after actual notice had been given and they knew or should have known that ________________ was of a violent nature, that he was addicted to the use of intoxicants and would be a person likely to commit an assault upon others rightfully upon the defendant’s premises, and that he had upon a previous occasion committed such an assault upon one actually a tenant thereof.

8. [Allege freedom from contributory negligence, if and as required] As a result solely of the negligence of the defendant and of the acts of ________________ as above alleged and without any negligence on the part of plaintiff contributing thereto, plaintiff was caused the injuries hereinafter alleged.

9. [Allege injuries and damages]

[Prayer or demand for relief; signature of attorney; and verification where required]

Note: Adapted from La Lone v. Smith, 39 Wash. 2d 167, 234 P.2d 893 (1951).

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FORM 9:18 Cause of Action Against Municipality for Assault and Battery by Employees

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. At all times herein mentioned, ________________ Street in the defendant city was a public street in common use and had been taken into the physical possession of the employees of defendant for the purpose of making repairs thereto.

3. On or about ________________ [date], at about ________________ m., plaintiff was lawfully upon ________________ Street and was driving a truck owned by him over and along the same about 200 feet south of its intersection with ________________ Street.

4. The defendant’s employees attempted to prevent plaintiff from driving along the street and attempted to take possession of plaintiff’s truck and to cause the truck to be driven over and along a portion of the street where plaintiff’s truck was likely to be damaged.

5. At that time and place, defendant’s employees, including one ________________ , assaulted and beat plaintiff and struck plaintiff with a shovel causing plaintiff to sustain the injuries hereinafter alleged.

6. At that time and place, the defendant’s employees were acting within the scope of their employment and their acts hereinafter alleged.

7. [Allege giving of notice of claim and intent to sue and/or making of demand and filing of claim and rejection thereof, if and as required]

8. [Allege injuries and damages]

[Prayer or demand for relief; signature of attorney; and verification where required]

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FORM 9:19 Cause of Action Against State for Assault Based Upon Rape of Infant Student at State Training School

[Caption and Introductory Statement]

1. [Jurisdictional, venue; character or identification of the parties and capacity allegations, where required]

2. [Allege giving of notice of claim or making of demand and rejection thereof, if and as required] 

3. This action is for damages suffered by the plaintiff, ________________ by reason of the negligence and misconduct of the State of ________________, its officers, agents, or employees, in connection with the failure to properly protect and supervise the custody of the plaintiff while she was lawfully in the care and control of the State of ________________ through its employees in the ________________ State ________________ Training School for girls, in the vicinity of the City of ________________, in the County of ________________, in the State of ________________.

4. The plaintiff was injured by an assault upon her while she was a student at the school, and the assault took place during the month of ________________ [year], which assault was made upon her by one of the supervisory employees of the State of ________________ who was charged at the time with the duty of protecting and caring for claimant while she was in the State’s custody. 

5. As a result of the assault by a supervising person, plaintiff became pregnant on ________________ [date]; the plaintiff ________________ was discovered in a pool of blood and unconscious on the floor of her residence; the plaintiff, ________________, was immediately rushed in an emergency condition to the ________________ Hospital, ________________, ________________, where she was treated and admitted as a patient; on [date] ________________, the doctors at the hospital informed the plaintiff ________________, that the plaintiff, ________________ , had been approximately ________________ (________________) months pregnant and had suffered a miscarriage of the baby; at that time ________________ informed ________________ of the assault; the plaintiff remained a patient in the hospital until the ________________ [date]. 

6. [Particularize negligence, if and as required] The assault and resulting injuries occurred because of the negligence and misconduct of the State of ________________, and its failure to properly protect and care for plaintiff while she was in the lawful custody of the State.

7. [Allege freedom from contributory negligence, if and as required]

8. [Allege injuries and damages] As a result of the assault, the plaintiff sustained the above injuries described and suffered severe mental shock and nervous disorder and was caused to be quite ill and sick for approximately three weeks after her release from the hospital, and as a result of the aforesaid assault, the plaintiff was compelled to incur medical expenses in the amount of ________________.

[Prayer or demand for relief; signature of attorney; and verification where required]

Note: Adapted from Foster v. State, 57 Misc. 2d 281, 292 N.Y.S.2d 269 (Ct. Cl. 1968), courtesy of John J. Galvin, Esq., Albany, New York.

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FORM 9:20 Cause of Action for Assault and Battery Based on Rape

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. On or about ________________ [date], at ________________ the defendant with force and against the consent of plaintiff assaulted her and then and there ravished and carnally knew her (whereby she became pregnant with child), although plaintiff resisted such acts of defendant to the utmost of her ability.

3. [Allege injuries and damages] As a result of these wrongful and malicious acts of defendant, plaintiff has suffered greatly in mind and body (and has given birth to a child and has been put to great medical expense therefore) and has otherwise been greatly injured, to her damage in the sum of  ________________ $.

[Prayer or demand for relief; signature of attorney; and verification where required]

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FORM 9:21 Cause of Action for Assault Where Patient at State Hospital was Beaten by Attendant

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. Plaintiffs reside in the City of ________________, County of ________________, State of ________________, and their post office address is ________________.

3. At all times herein mentioned, the ________________ State Hospital was and is an institution located in the County of ________________, City of ________________ and State of ________________, and is maintained by the State of ________________.

4. ________________ State Hospital is maintained by the State of ________________ for the observation, treatment, and care of persons who are mentally deranged, disturbed, temporarily insane, or temporarily unbalanced mentally.

5. Prior to ________________ [date], the above-named ________________ , was admitted and received by said ________________ State Hospital as a patient and so continues to this date.

6. Upon information and belief, sometime between the ________________ and ________________ day of ________________ [year], while said ________________ was an inmate of the aforesaid institution, he was assaulted and beaten by an attendant or guard in the employ of the ________________ State Hospital and assigned for duty on the floor where ________________ was a patient and where he sustained the injuries hereinafter alleged.  

7. At all times aforesaid, the guard or attendant who so assaulted and beat plaintiff ________________ was the agent, servant, representative, and employee of the ________________ State Hospital and the State of ________________, and was acting as the agent, servant, employee, and representative of the ________________ State Hospital and the State of ________________ within the scope of his employment.

8. [Allege freedom from contributory negligence, if and as required] Solely by reason of the negligence of defendants, the plaintiff, ________________, has suffered injuries as hereinafter alleged.

9. [Allege injuries and damages]

10. [Allege giving of notice of claim or making of demand and rejection thereof, if and as required]

Note: Adapted from Sarlat v. State, 52 Misc. 2d 240, 275 N.Y.S.2d 293 (Ct. Cl. 1966), courtesy of Rivkin, Leff & Sherman, Esqs., Freeport, N.Y.

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FORM 9:22 Cause of Action for Assault and Battery under Federal Tort Claims Act—Hospital Patient for Acts of Another Patient Based upon Negligence in Supervision of Patients

[Caption]

1. This action is brought under the Federal Tort Claims Act, 28 U.SC §§ 1346(b), 2671 et seq., as hereinafter more fully appears. Plaintiff is a citizen of the United States.

2. At all times herein mentioned, the Surgeon General of the United States of America was an agency of the defendant, duly organized and existing pursuant to statute.

3. The Surgeon General was authorized by law to provide for the confinement, care, protection, treatment and discipline of persons addicted to the use of habit-forming narcotic drugs, who voluntarily submitted themselves for treatment.

4. The defendant through the Surgeon General maintained and controlled a certain hospital at ________________, ________________ , known as the Public Health Service Hospital, for the purpose of providing for the confinement, care, protection, treatment and discipline of persons addicted to the use of habit-forming narcotic drugs, who voluntarily submitted themselves for treatment, as authorized by law.

5. The defendant, by its Surgeon-General, and its agents and servants, controlled and supervised such persons as were confined at the Public Health Service Hospital, at ________________ .

6. Plaintiff was a person lawfully admitted to the Public Health Service Hospital, at ________________, ________________ , and confined therein.

7. On or about ________________ [date], while plaintiff was lawfully confined within the hospital, he was set upon and assaulted by another person confined therein, one ________________, who willfully and wantonly beat plaintiff about his head and shoulders with his fists, and plaintiff was thereby caused to sustain the injuries hereinafter alleged.

8. This occurrence was caused by the negligence of the defendant, and its agents and servants, in that defendant failed to provide proper and adequate supervision and control of and for the persons confined in the hospital.

9. [Particularize negligence, if and as required] The negligence of the defendant, in addition to that herein above alleged, consisted of: (1) failure to provide sufficient guards or attendants within the area where plaintiff was confined at the time he met with his injuries; (2) locking of the area in which plaintiff was confined without any guards or attendants present so that assistance could not be summoned; and (3) failure to properly supervise the movements and activities of the persons confined in the hospital.

10. [Allege freedom from contributory negligence, if and as required] Plaintiff was caused the injuries hereinafter alleged as a result solely of the negligence of the defendant and of the acts of ________________, as above alleged, and without any negligence on the part of plaintiff contributing thereto.

11. [Allege injuries and damages]

[Demand for relief; signature of attorney]

Note: Adapted from Panella v. United States, 216 F.2d 622 (2d Cir. 1954).

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FORM 9:23 Cause of Action by Employee Against Co-Employee for Injuries Sustained From Friendly Unsolicited Hug

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. During all the times herein involved, plaintiff was in the employ of ________________ Company, as a ________________, and her immediate supervisor was the defendant.

3. [Particularize negligence, if and as required] On or about ________________ [date], at the ________________ Company located in ________________ , ________________ , the plaintiff,  ________________ sustained an injury while engaged in the performance of her duties as a ________________  At the time and place alleged the said plaintiff was seated at a table when the defendant, ________________ without cause, justification or provocation, unlawfully, wrongfully, unjustly and willfully made an attack upon the plaintiff by seizing her around the neck and head with his arm and forcefully and violently jerking her up and down and to and fro several times.

4. [Allege freedom from contributory negligence, if and as required]

5. [Allege injuries and damages]

[Prayer or demand for relief; signature of attorney; and verification where required]

Note: Adapted from Bender’s Florida Forms.

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FORM 9:24 Cause of Action for Assault and Battery by Kissing and Embracing

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. At all times herein mentioned, defendant was engaged in the practice of dentistry at ________________, and maintained in connection with his dental office a laboratory, bedroom and other rooms.

3. Plaintiff was employed by defendant as an attendant and was required as a part of her duties to care for defendant’s office and other rooms connected therewith.

4. On or about ________________ [date], while plaintiff was in the performance of her duties, defendant assaulted and forcibly laid his hands on her person and forcibly kissed and embraced her against her will.

5. [Allege injuries and damages] By reason of these wrongful acts of defendant, plaintiff was rendered ill and suffered great pain in mind and body and was otherwise injured, all to her damage in the sum of ________________ $.

[Prayer or demand for relief; signature of attorney; and verification where required]

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FORM 9:25 Cause of Action for Assault and Battery—Patient Against Physician for Operation Other than that Agreed Upon

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of parties and capacity allegations, where required]

2. Defendant is a duty qualified and acting physician and surgeon in ________________, ________________, and makes a specialty of eye, ear, nose, and throat diseases.

3. During the month of ________________ [date], plaintiff was examined by defendant in his professional capacity and defendant advised plaintiff that it was necessary for him to have an operation performed upon the septum of his nose, and plaintiff then and there employed defendant in his capacity as a physician and surgeon to perform the operation. 

4. On or about ________________ [date], plaintiff, at the special instance and request of defendant, went to the ________________ Hospital to have the operation performed, and, while under an anesthetic, defendant, instead of operating upon the septum of plaintiff’s nose, removed plaintiff’s tonsils, causing the injuries to plaintiff hereinafter alleged.

5. [Allege injuries and damages]

[Prayer or demand for relief; signature of attorney; and verification where required]

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FORM 9:26 Cause of Action for Assault and Battery—Patient Against Physician for Operation Contrary to Instructions

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. On or about ________________ [date], plaintiff employed defendant as a physician to examine her and to ascertain the nature of a stomach disorder from which she was then suffering.

3. On or about ________________ [date], plaintiff on the advice of defendant went to the ________________ Hospital and stayed there for ________________ days for the purpose of enabling defendant to better examine her.

4. On or about ________________ [date], defendant informed plaintiff that he had discovered a lump in her abdomen but that he could not determine its exact character and nature without an examination under ether.

5. Plaintiff consented to be placed under ether so that defendant could make a thorough examination and ascertain the disorder from which she was suffering, but plaintiff notified defendant that he was not to operate upon her for any reason whatever and defendant agreed that he would not operate upon her.

6. On or about ________________ [date], defendant, after having placed plaintiff under the influence of ether, willfully and maliciously, and without her consent as herein before alleged, assaulted plaintiff and operated upon her and removed a tumor from her abdomen, causing injuries to plaintiff hereinafter alleged.

7. [Allege injuries and damages]

[Prayer or demand for relief; signature of attorney; and verification where required]

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FORM 9:27 Cause of Action for Assault and Battery by Collectors Employed by Defendant

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. At all times herein mentioned, defendant was engaged at ________________ in the business of selling various household articles on the installment plan.

3. On or about ________________ [date], ________________ , plaintiff’s husband purchased certain merchandise from defendant on the installment plan.

4. Defendant has in his employ ________________ and ________________ whose duties were to collect money due on installment for goods which had been purchased from defendant and also to obtain the possession of such goods so purchased on the installment plan, where the purchaser defaulted in payment or installments.

5. On or about ________________ [date], in pursuance of their duties of employment,  ________________ and ________________ as the agents and servants of defendant and in the scope of their employment, wrongfully and forcibly entered upon the premises of plaintiff and into her dwelling house to remove the goods purchased by ________________ and did so remove them. 

6. Then and there and while removing the goods, ________________ and ________________ did assault and strike plaintiff upon the head, neck, breast, arm and other parts of her person in a deliberate, malicious, and brutal manner and did thereby do her great bodily injury as hereinafter alleged. 

7. [Allege injuries and damages]

[Prayer or demand for relief; signature of attorney; and verification where required]

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FORM 9:28 Cause of Action for Assault and Battery—Automobile Driver against Bus Line for Acts of Bus Driver

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. On or about ________________ [date], plaintiff was driving his automobile in a southerly direction on U.S. Highway ________________ in ________________, when plaintiff’s automobile met a passenger bus owned by defendant and then being driven in a northerly direction along the same highway by its servant, ________________ .

3. As the two vehicles passed each other, they collided slightly, but plaintiff was unaware that a collision had occurred and continued to drive south on the highway.

4. After this collision had occurred, ________________, acting as servant of defendant, and within the scope of his employment, turned the bus around and proceeded in a southerly direction for the purpose of overtaking plaintiff.

5. As such servant of defendant, ________________ was under the duty, among others, to protect from harm defendant’s bus and to investigate any accident involving the bus and to secure and transmit to defendant the names of any person or persons causing harm to the bus. The purpose of ________________ in overtaking plaintiff’s automobile was to fulfill this duty to defendant and to ascertain the name of the plaintiff and such other details as would provide information to defendant in ________________’s report of the accident.

6. Within a short time after turning his bus around, ________________ overtook plaintiff and drove in front of plaintiff’s automobile in such a manner to block its passage. ________________ then demanded information from plaintiff in respect to his name and otherwise concerning the collision and demanded that plaintiff fill out an accident report card. While making these demands, as servant of defendant, ________________ , without provocation, violently abused and struck plaintiff with his fists about his head and shoulders and other parts of plaintiff’s body, as a result of which plaintiff was seriously and permanently injured, as hereinafter alleged.

7. [Allege injuries and damages]

[Prayer or demand for relief; signature of attorney; and verification where required]

Note: Adapted from Joyce v. Southern Bus Lines, Inc., 172 F.2d 432 (5th Cir. 1949).

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FORM 9:29 Cause of Action for Assault and Battery—Passenger against Bus Company for Act of Bus Driver, Based on Breach of Contract

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. At all the times herein mentioned, defendant was a common carrier and operated over the streets of the City of ________________, and in particular over ________________ Street, motor-buses for the transporting of passengers for hire to various parts of the City.

3. On or about ________________ [date], at about  ________________ m, plaintiff became a passenger for hire upon one of the buses operated by defendant which was passing  ________________ Street. The defendant, for the fare paid to it by plaintiff, accepted plaintiff as a passenger on its bus and thereupon undertook and agreed to transport the plaintiff safely to his destination and to protect plaintiff against any injury from misconduct of its servants.

4. At the time above mentioned, and while plaintiff was on the defendant’s bus, the defendant through its employee, ________________, in violation of the terms of its contract with plaintiff, willfully and maliciously assaulted and beat the plaintiff and threw him off the bus causing the injuries hereinafter alleged.

5. [Allege injuries and damages]

[Prayer or demand for relief; signature of attorney; and verification where required]

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FORM 9:30 Cause of Action for Assault and Battery—Non-Paying Passenger (Trespasser) against Railroad Company for Use of Unnecessary Force by Conductor

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. On or about ________________ [date], plaintiff was upon one of the passenger cars operated by defendant.

3. While the train was passing over the railroad between the stations of ________________ and ________________ and at a dangerous place, he was wantonly and violently assaulted and beaten by ________________, conductor of the defendant in charge of the train, ________________ then and there acting as defendant’s agent and within the scope of this authority.  

4. Plaintiff was violently and forcibly ejected from the car by the conductor with unnecessary force and violence not rendered necessary or justifiable by any act on plaintiff’s part. The conductor struck plaintiff with his fist and kicked plaintiff although plaintiff was then leaving the train, causing the injuries to plaintiff hereinafter alleged.

5. [Allege injuries and damages]

[Prayer or demand for relief; signature of attorney; and verification where required]

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FORM 9:31 Allegations of Ratification of Assault and Battery by Servant

In addition to allegations of assault:

1. On the date above alleged, ________________ did not hold any commission as a public officer of any kind, but at the inquest held over the body of ________________, on [date], ________________ the defendants falsely claimed and represented to the coroner’s jury and the public that  ________________ was on the date above alleged a lawfully commissioned game warden, in an effort to protect and shield him from the consequences of his prior unlawful conduct.

2. Since the killing of ________________ as above alleged, and with full knowledge thereof, defendants have kept ________________ in their employ at ________________ .

3. Defendants, by their conduct as alleged in paragraphs 1 and 2 above, ratified the acts of ________________ in committing the fatal assault upon ________________.

Note: Adapted from Estridge v. Hanna, 54 Ga. App. 817, 189, S.E. 364 (1936).

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FORM 9:32 Cause of Action for Assault and Battery—Patron Against Restaurant for Acts of Another Patron Based upon Negligence in Supervision of Patrons—Death Action

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. At all times herein mentioned, the defendant operated and controlled a restaurant at No ________________ Street, ________________ , known as the ________________ Restaurant, to which the general public was invited for the purpose of obtaining meals and alcoholic beverages for compensation to be paid to defendant.

3. On or about ________________ [date], ________________ was a patron in defendant’s restaurant and engaged in eating a meal served to him for compensation.

4. At that time and place, ________________, then in a highly intoxicated condition, willfully and maliciously assaulted and beat ________________ and struck him repeatedly on the head and body with a chair and inflicted upon him injuries from which he thereafter died.

5. The assault upon ________________ by ________________ was caused by the negligence of defendant in failing to exercise proper supervision and control over admission of patrons and their conduct in the restaurant.

6. [Particularize negligence, if and as required] The negligence of defendant, in addition to that herein above alleged, consisted of: (1) admitting and inviting to the ________________ Restaurant and permitting to remain there, ________________ a person known to defendant to have vicious, vile and disorderly propensities; (2) permitting ________________ to remain there in a highly intoxicated condition (3) failing to provide an employee or employees to maintain proper order and to exercise reasonable care for the safety of patrons.

7. [Allege decedent’s freedom from contributory negligence, if and as required] ________________ died on ________________ [date], as a result solely of the negligence of the defendant and the acts of ________________, as above alleged, and without any negligence on the part of ________________ contributing thereto.

8. [Allegations as te next to kin and facts upon which damages can be based]

[Prayer or demand for relief; signature of attorney; and verification where required]

Note: Adapted in part from Peck v. Gerber, 154 Or. 126, 59 P.2d 675 (1936), 106 A.L.R. 996 (1937).

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FORM 9:33 Cause of Action for Assault and Battery—Passenger Against Street Railway Company for Acts of Another Passenger Based Upon Negligence in Supervision of Passenger

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. At all times herein mentioned, defendant ________________, operated over the streets of the City of ________________, and in particular over ________________ Street, street cars for the transporting of passengers for hire to various parts of the City.

3. On or about ________________ [date], at about ________________, plaintiff was lawfully a passenger for hire upon a street car of defendant ________________, which car was passing ________________ Street. Plaintiff had paid his fare and was conducting himself in a quiet and orderly manner.

4. The defendant, ________________, at the same time and place, was also a passenger upon the street car.

5. At the time and place above alleged, defendant ________________ assaulted and struck plaintiff with his fist and pushed him from the seat in which he was sitting.

6. Thereupon plaintiff complained to the motorman ________________, in charge of the car, who was then and there the agent of the defendant ________________, acting within the scope of his authority. Plaintiff demanded that the motorman protect him from further assault by the defendant ________________, but the motorman negligently failed and refused to protect plaintiff or to take any steps for plaintiff’s protection.

7. The defendant, ________________, continued to assault and strike plaintiff and despite plaintiff’s demand that the motorman protect him, the motorman negligently wholly failed and refused to take any steps whatsoever for plaintiff’s protection.

8. Thereupon, defendant ________________, again assaulted and struck plaintiff and knocked him to the floor of the car, kicked him and walked upon him, causing the injuries herein alleged.

9. [Particularize negligence, if and as required] The negligence of defendant, ________________ , in addition to that herein above alleged, consisted of: (a) failure to personally attempt to prevent defendant, ________________, from striking plaintiff; (b) failure to stop the street car and seek the assistance of public officers to prevent defendant, ________________ , from striking plaintiff; (c) failure to stop the street car and eject defendant, ________________; (d) failure to properly supervise its passengers.

10. [Allege freedom from contributory negligence, if and as required] As a result solely of the negligence of the defendant, ________________ , and of the acts of defendant, ________________ , as above alleged, and without any negligence on the part of plaintiff contributing thereto, plaintiff was caused the injuries hereinafter alleged.

11. [Allege injuries and damages]

[Prayer or demand for relief; signature of attorney; and verification where required]

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FORM 9:34 Cause of Action for Assault, Slander and False Imprisonment—Customer Against Store Owner and Employee for Acts of Employee

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. At all the times herein mentioned, defendant ________________ was the owner and in control of a certain store for the sale of ________________ at ________________ and defendant ________________ was a floorwalker in the employ of defendant ________________ in the store.

3. On or about ________________ [date], plaintiff was lawfully in the store of defendant ________________ as a customer for the purpose of purchasing goods there sold and was conducting himself in a proper manner.

4. At that time and place the defendant ________________, acting as agent and in behalf of defendant ________________ within the scope of his employment, in the presence and hearing of one ________________ and several other persons whose names are unknown to plaintiff, seized plaintiff and maliciously spoke of and concerning the plaintiff the false and defamatory words,“You are a thief; you have been picking up things off of the counters.”

5. Defendant ________________ forced plaintiff to go into a room in the rear of the store and was there held and detained against his will for approximately one hour. While plaintiff was being so detained, defendant ________________, still acting as agent and in behalf of defendant ________________ within the scope of his employment, assaulted plaintiff and struck him in the face and forcibly removed the clothing from his body and compelled him to submit to a search of his person by defendant. 

6. [Allege injuries and damages] As a result of the acts of the defendants, plaintiff was greatly humiliated, injured in his reputation, became sick, sore, and disabled, and has suffered great pain and mental anguish, all to plaintiff’s damage in the sum of $ ________________

7. [Prayer or demand for relief; signature of attorney; and verification where required]

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FORM 9:35 Cause of Action of Parent for Assault and Battery on Child

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. At all times herein mentioned, ________________ was an infant under the age of ________________ years and the son of plaintiff with whom the infant resided at ________________.

3. [Set forth facts of the assault and battery] On or about ________________ [date], at ________________, defendant willfully and maliciously and without provocation assaulted and beat ________________, plaintiff’s child, by striking him about the head and shoulders with a large stick. 

4. [Allege injuries and damages of parent] By reason of the foregoing, plaintiff has necessarily paid and become liable to pay for medical and hospital attendance, physicians, nurses and medicine for his infant son in excess of the sum of $ ________________ and plaintiff will hereinafter necessarily incur further expenses of a similar nature. Plaintiff has also been deprived of the services of his son and the comfort and happiness of his society, and plaintiff is informed and believes that impairment and injuries to his son will necessarily continue permanently, all to plaintiff’s damage in the sum of $ ________________.

[Prayer or demand for relief; signature of attorney; and verification where required]

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FORM 9:36 Cause of Action of Husband for Assault and Battery on Wife

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. On ________________ [date], plaintiff and ________________ were married and cohabited as husband and wife.

3. Ever since the marriage of plaintiff and ________________, plaintiff has been a householder in the city of ________________ and has supported and provided for his wife. Prior to the time hereinafter mentioned, plaintiff’s wife was in good health and fully capable of performing the duties of housekeeping for plaintiff in his dwelling and did perform such household duties and cared for and managed plaintiff’s children without requiring servants to aid her in performing the said work. 

4. [Set forth facts of the assault or assault and battery] On or about ________________ [date], at ________________, defendant willfully and maliciously assaulted and beat ________________, plaintiff’s wife, by striking her with his fist and kicking her.

5. [Allege injuries and damages of husband] By reason of the wrongful and malicious conduct of defendant, plaintiff’s wife was rendered sick, sore, lame and disabled, and unable to perform her duties as housekeeper for plaintiff in his said dwelling and in caring for and managing plaintiff’s children. Plaintiff for a period of ________________ months was deprived of the society of his said wife and of her services and was compelled to and did expend sums of money amounting to $ ________________ for nursing and medical attention in curing his wife of her injuries and or assistance in the performance of her housekeeping duties, all to plaintiff’s damage in the sum of $ ________________.

[Prayer or demand for relief; signature of attorney; and verification where required]

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FORM 9:37 Cause of Action for Unprovoked Battery Committed Upon Plaintiff

[Caption and Introductory Statement]

1. [Jurisdictional; venue; character or identification of the parties and capacity allegations, where required]

2. On or about ________________ [date], at or about ________________ P.M., defendant, , committed an act of battery on plaintiff, .

3. The said defendant, ________________, struck plaintiff, ________________ , several times about his face, head, and neck, knocking plaintiff into an automobile and down to the ground, and despite plaintiff’s efforts to ward off the blows, the said defendant continued to violently pommel plaintiff, causing him to suffer injuries as hereinafter set forth.

4. [Allege injuries and damages] As a result of the unlawful attack on plaintiff he suffered a fractured nasal bone with marked deviation of the nasal septum; bruises over the right eye, causing an accumulation of blood in the left nasal chamber, ecchymoses in the right periorbital area and the right cheek and both infraclavicular areas; and abrasions of the chin.

5. As a result of these injuries, a submucous resection had to be performed and much of the cartilage removed from the nasal tip, and he had to be hospitalized and subsequently had to remain under medical treatment for a period of four months, and was obliged to pay the doctor and medical expenses which amounted to the sum of $ ________________; suffered a loss of wages during the course of the injury in the sum of $ ________________, and that in addition to the loss of wages, plaintiff suffered from the injuries above set forth and continues to suffer therefrom, and that he values the pain, suffering, humiliation, future pain and disfigurement at the sum of $ ________________.

[Prayer or demand for relief; signature of attorney; and verification where required]

Note: Adapted from Ebert v. Macaluso, 248 So. 2d 355 (La. Ct. App. 1971), courtesy of Charles E. Cabibi, Esq., New Orleans, La.

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FORM 9:38 Cause of Action Against a Corporation for a Battery Committed by an Employee

[Caption]

To the Honorable Court:

Plaintiff ________________ , a resident of ________________ County, Texas complains of ________________, defendant, a domestic corporation and resident of ________________ County, Texas, and ________________, defendant, a resident of ________________ County, Texas, and states:

1. On the [date of incident] defendant ________________, acting within the course and scope of his employment for [corporate defendant] attacked and bet up the plaintiff.

2. As a proximate result of the attack, plaintiff suffered severe and permanent injuries consisting of ________________, and has lost and will continue to lose time from his work and has incurred reasonable and necessary medical expenses in the amount of ________________, damages for all of which exceed the minimum jurisdiction of the court.

[Prayer]

[Signature, etc.]

Note: F. Elliott & J. Hadley Edgar, Jr., West’s Texas Forms 211 (West 2d ed. 1989).

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FORM 9:39 Battery Resulting From a Sports Injury

[Caption]

NOW COME ________________ and, ________________  his wife, Plaintiffs herein, complaining of ________________ SPORTS INCORPORATED, a California corporation, owning and operating a professional basketball team known as “[name of team]” Defendant, and for original petition would show the Court the following:

1. Plaintiffs are resident citizens of ________________, ________________ County, Texas. The Defendant is a corporation duly incorporated under the laws of the State of California and has its principal place of business in the State of California. It is anticipated that effective service can be obtained on Defendant at [place and address]. The Defendant has purposely done and is doing business in the State of Texas, in that it operates a basketball team which plays at least two games a year in Houston and at least two games per year in San Antonio and, further, said Defendant sends its key employees into Texas and regularly transacts business with Plaintiff ________________’s employer, ________________ Inc., a Texas corporation. Defendant has not designated or maintained an agent for service in Texas, so Plaintiffs pray the Clerk of Court to prepare process for service upon the Defendant by serving ________________, who, at the time of service, is and will be in charge of the business in which the Defendant is engaged in Texas, all as authorized by Sec. 2 of Article 2031 b of the Revised Civil Statutes of Texas. The incident and transaction made the basis of this suit, arose out of and was directly connected with the business done by Defendant in the State of Texas; namely, the engaging for economic reasons in the sport of professional basketball in Texas cities and other contractually designated cities operated by or under the aegis of the National Basketball Association, including, in this instance, ________________ , California, where Plaintiff, ________________ and his assailant, ________________ , a basketball playing employee of Defendant, were required to perform their services for their respective employers and the National Basketball Association, just as they are required to do when scheduled games and contests are conducted in Houston and San Antonio.

Alternatively, and in addition to the above method of service, Plaintiff prays that process be prepared for service upon defendant by serving Honorable ________________, Secretary of State of Texas as the statutorily designated agent for service pursuant to V.T.C.A., Civ. Prac. & Rem. Code 6 17.044. In addition to doing business in Texas in the manner described in this State by entering into a contract, or contracts with a resident, or residents of Texas namely, [name of plaintiff’s employer], Houston Rockets, Inc., and/or Plaintiff ________________ through the Stipulation and Settlement Agreement of [date] also known as the “Oscar Robinson Agreement” incorporating the “NBA Uniform Players Contract,” and by entering into other contractual and consensual agreements to be performed in whole or in part of this State, as described in V.T.C.A., Civ. Prac. & Rem. Code 17.042 and further, the incident and transaction arose out of or was directly connected with such business in Texas, as set forth in 12.043 of said statute.

2. Plaintiff ________________ is a professional basketball player employed by the ________________, Inc., a Texas corporation having its principal place of business in ________________, Texas, and owning the rights to a professional basketball player for the ________________ team. Plaintiff ________________ plays the position of forward and said Plaintiff, prior to the events complained of herein, had extraordinary and unique skill and ability as a basketball player, was the leading scorer and captain of the ________________ and enjoyed an excellent and valuable national reputation as a professional basketball player.

3. At all material times, ________________ was a professional basketball player, playing for and employed by Defendant ________________ Sports Incorporated, a California corporation owning and operating a professional basketball team known as “________________,” also a member of the National Basketball Association.

4. On or about [date] in ________________, California, the [name of plaintiff’s team] with Plaintiff ________________ playing forward, were engaged in a professional basketball game against Defendant’s [name of defendant’s team], for whom [name of player] was playing forward.

5. At said time and place, [name of defendant’s player] was a key player, was a paid employee and agent of the Defendant, and at all times on said night, said player acted in the course and scope of his said employment and agency with the Defendant’s basketball team.

6. Plaintiffs incorporate by this reference the previous allegations set forth above and rely upon the same as though fully set forth and repeated word for word herein.

7. At all times pertinent hereto, the defendant has been engaged in the business of drafting, trading, employing, training, disciplining and compensating professional basketball players for the purpose of presenting to the paying public and television public professional basketball games in competition with other professional basketball teams, including the [name of plaintiff’s team].

8. From prior to the time that the Defendant hired ________________ to the time of the incident hereinafter described, Defendant’s team had actual knowledge that players possessing extraordinary talents in the sport of basketball, including players such as Plaintiff ________________, implicitly relied upon and were dependent upon Defendant to employ, train and discipline professional basketball players in such a manner as not to physically endanger or injure those extraordinarily talented players in their careers and livelihoods.

9. From prior to the time that Defendant hired ________________ to the time of the incident hereinafter described, Defendant had actual knowledge that its inadequate training or inadequate disciplining of those of its basketball players having reputations or propensities for unsportsmanlike conduct or vicious physical violence could reasonably be expected to result in serious injuries to athletes on other teams whose careers and livelihoods depended upon their physical well-being and health and upon playing basketball in an environment free of unprovoked, vicious and violent conduct and attacks.

10. From prior to the time that Defendant hired and employed ________________ to the time of the incident hereinafter described, Defendant knew or had reason to know that ________________ was known as a so-called“enforcer,” and that he had a reputation or propensity for unsportsmanlike conduct or vicious physical violence, which propensity should reasonably be expected to result in serious injuries to other professional athletes.

11. At all times pertinent hereto Defendant owed a duty to Plaintiffs to exercise ordinary or extraordinary care in the selecting, employing, training and disciplining of its basketball players, including ________________, and to manage and conduct the activities of its basketball team with ordinary prudence and skill so as to reasonably protect the lives and safety of others, including Plaintiff ________________.

12. Defendant’s team breached its aforesaid duties in numerous respects, including, but not limited to, the following:

(a) Selecting, hiring and employing ________________, although Defendant knew or should have known of his reputation as an “enforcer” and his propensities for brutality and physical violence.

(b) Failing to train its players, including ________________, so as to discourage and prevent vicious attacks on other professional athletes, including Plaintiff ________________.

(c) Failing to discipline its players, including ________________, so as to prevent vicious attacks upon other professional athletes, including Plaintiff ________________.

(d) Failing to immediately remove ________________ from the playing floor at least after he had been ejected from the game and prior to the incident described in the next paragraph.

13. As a direct and proximate result of the aforesaid negligence and breaches of Defendant, ________________ intentionally, willfully, and maliciously struck Plaintiff ________________ in the face with his fist.

14. As a result of being so struck in the face, Plaintiff ________________ fell to the floor and struck his head, all resulting in the most serious and painful injuries and damages more fully set forth and claimed below.

15. The assault and battery described above was committed with malice and with intent to inflict serious bodily injuries upon Plaintiff ________________, and was committed without any provocation by said Plaintiff.

16. Defendant authorized, permitted, approved, sanctioned or ratified the aforementioned assault and battery committed by ________________.

17. As a direct and proximate consequence of the aforementioned negligence of Defendant, and of the conduct of ________________ acting on behalf of Defendant, Plaintiff  ________________ sustained the following injuries and damages for which claim is hereby made: fractures of the nose, jaw and skull; facial lacerations and a brain concussion; loss of blood and leakage of spinal fluid from the brain cavity; extensive and expensive hospitalization, surgery, medical procedures and therapy; wiring shut of said Plaintiff’s jaw for a long period of time, with concomitant loss of weight and strength; permanent impairment of the sense of small, permanent difficulty in normal breathing; permanent scarring and disfigurement, and intermittent but painful headaches; lost income, impairment of earning capacity and impairment and loss of business opportunities in the way of promotion fees and commercial endorsements, as well as other damages which will be later alleged with more particularity as their extent becomes reasonably known.

WHEREFORE, as the damages greatly exceed the minimum jurisdictional limits of the Court, Plaintiff ________________ prays that a jury be empaneled herein to fairly decide his actual damages, plus a separate and additional substantial sum as punitive or exemplary damages, plus pre-judgment and post judgment interest, costs and attorney’s fees most wrongfully sustained.