(Paralegal) If An Aggressor Is Seriously Injured During A Fight, Who Sues Whom?

Case Study:

Teenagers Dan Daniels and Tom Thomas are in the same high-school class. Neither of them has gone through their growth spurt yet—both are about 5 feet, 5 inches tall and weigh about 140 pounds each. While walking home from a burger place one summer night, they are approached by Randy Roberts, another teenager they recognize as a football player from a rival school. He is about 5 feet, 11 inches tall and weighs well over 200 pounds. Randy begins yelling at Dan and Tom to get out of his neighborhood, screaming that Raiders do not belong there. Raider is Dan and Tom’s high-school mascot. Randy grabs Dan and punches him in the face. Dan tries to return the punch but is unable to get close enough to Randy to do so. Tom is weighing his options when he sees Randy pull something shiny out of his pocket. Thinking it is a knife, Tom rushes Randy, knocking him off his feet. Randy hits the ground head first and has a seizure. Panicking, Tom and Dan call the police. Randy is taken to the hospital and ends up with permanent brain damage. Randy’s family sues Tom and Dan who counter-sue Randy. What claims does each of the teenagers have? What defenses are available to each of them? Who is likely to prevail and why? Is there any criminal liability here? Discuss the intersection between criminal action and tort liability in this case.

Claims of each teenager:

Thomas and Daniels against Roberts: Assault (Roberts acted with intent to cause harm to Daniels and Thomas); intentional infliction of emotional distress (rRoberts was harassing Daniels and Thomas specifically because of their affiliation with a rival school; was a much larger teen who was threatening bodily harm to smaller teens).

Daniels against Roberts: Battery (to Daniels): acted with intent to cause harm and had harmful contact with Daniel’s face when he hit him. “Cause of action for assault and battery can be supported by even minimal touching” (O.C.G.A. § 51-1-14).

Roberts against Thomas: Unintentional battery when shoving Roberts. Not an intentional tort, as injury was accidental. Possibly not a reckless tort, as Thomas behaved in the heat of the moment in self-defense and to defend his friend Daniels. Likely to be a negligent tort, as Thomas’ shove was not pre-planned and not intended to maliciously injure Roberts, merely to protect Daniels and himself from Roberts’ aggression and what Thomas assumed to be Roberts’ pocket knife (Thomas was mistaken, Roberts was not carrying a knife). Roberts’ attorney will still likely try to claim it was a reckless tort, as that is punished more severely than a negligent tort, by saying that shoving Robnerts was an action committed without regard to outcome, but will have to prove satisfactorily that Thomas, as a reasonable person, could have predicted Roberts would fall and suffer a serious injury.

Roberts against Daniels: Unlikely to have any valid claim. Roberts, as aggressor, started the fight and Daniels attempted to respond with a reasonable amount of force to protect himself. Daniels is probably in the clear, as he neither directly contributed to Roberts’ injury nor instigated the conflict.


Thomas, mistakenly believing that Roberts was bringing a knife to a fist fight and shoving him, may be considered to have used unreasonable force (as aggressor Roberts was seriously injured when he fell and hit his head after being shoved), albeit in defense of himself and Daniels. Thomas can argue that he did not intend consciously to injure Roberts, merely to protect himself, and that shoving Roberts was not intentionally acting with conscious disregard or full awareness of potential risks shoving Roberts might have.

Thomas’ and Daniels’ lawyers might examine Georgia’s stance on a Common Law Provocation Mitigation Defense (NOTE: this is usually used with homicide / manslaughter cases, so application is limited here) has two-prong test: 1. Was defendant in fact provoked (a judge must decide, as this is subjective) and 2. Was that provocation such that a reasonable person is liable to act as defendant did in the same situation? Roberts will not be able to rely on this defense, as he was the aggressor. It is highly unlikely that “Thomas and Daniels were believed, correctly, to attend a rival school” will be considered sufficient provocation mitigation for Roberts’ bullying behavior that instigated the fracas and led directly to Roberts being seriously injured.

Robert’s lawyer can cite “Mere fact that defendant did not initiate fight does not necessarily show that he is not guilty of aggravated assault” (Ga. Code, § 26–1302(b)) and “[even assuming that] the victim initiated the “fight” […] the mere fact that the defendant did not initiate the fight does not necessarily show that he was not guilty of aggravated assault…” (Hooks v. State, 138 Ga.App. 539(1), 226 S.E.2d 765).

Roberts’ lawyer(s) may also try to claim the three boys were all in “mutual combat.” “A mutual combat situation arises when both parties are at fault and are willing to fight because of a sudden quarrel. To establish mutual combat, the mutual intention to fight need not be proved directly, but must be inferred by jury from conduct of parties. While mutual combat and self-defense are mutually exclusive by definition, where there is evidence of both the jury, as trier of fact, must select between the two propositions” (Ga. Const. Art. 1, § 1, Par. 11(a)).

Roberts’ lawyer may also try to cite Robinson v. Kroger Co., 268 Ga. 735, 736 (1) (493 SE2d 403)(1997), where a person voluntarily inserted himself into a fight as a peacemaker, though this dealt more with liability of a property owner who unwittingly had his property used as a site for a dispute. As such, it is not likely to be a compelling argument, even though the peacemaker lost in court. A better case might be Russell v. The State, 152 Ga.App. 693, 263 S.E.2d 689 (Dec. 4, 1979) (Certiorari Denied Jan. 25, 1980), as non-aggressor in a fight was still liable for aggravated assault; note, however, that defendant in Russell did not convince court that his actions were done in self-defense. Roberts’ superior size and instigator-aggressor status is likely to be a mitigating factor for Thomas.

Thomas and Daniels’ lawyer(s) may counter: “[a] defendant is engaged in “mutual combat” with other party, only if there is mutual intent to fight on part of both parties; such intent may be manifested by acts and conduct of parties, as well as by circumstances leading up to and culminating in their combat” (O.C.G.A. § 16-3-21(b)(3)). Roberts was seeking a fight, not Thomas or Daniels.

Thomas and Daniels’ lawyer(s) will also plead self-defense: per Ga. Code Ann., § 16-3-21, “use of force in defense of self or others, including justifiable homicide” can be justified “to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force.” This does not excuse death or great bodily harm, such as Roberts’ injury, but that presumes that Thomas could reasonably predict that his shove could cause serious damage to Roberts, which is unlikely, or, at least, debatable and possibly is a matter for a judge and/or jury to determine. Daniels’ lawyer(s) could point out that Roberts’ battery of Daniels is not covered under that same code, as Roberts “initially provoked” the fight as the aggressor.

Thomas’ lawyer(s) should cite O.C.G.A., § 16-2-2: “[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.  The Georgia Supreme Court has held that ‘Accident’ is an affirmative defense whereby it must be established a defendant acted without criminal intent, was not engaged in a criminal scheme, and was not criminally negligent, i.e., did not act in a manner showing an utter disregard for the safety of others who might reasonably be expected to be injured thereby” (see also: Wilson v. State, 279 Ga. 104, 105(2), 610 S.E.2d 66 (2005)).

None of the teens or their lawyers will be able to drag any parents into the dispute, per Saenz v. Andrus, 195 Ga. App. 431 (April 23, 1990): “Unless common law is changed by statute, parents are not liable in damages for torts of their minor children merely because of parent-child relationship.”


Although Roberts is the most severely injured party, and unable to provide his version of events due to his injury, it is unlikely Roberts will prevail in court. If awarded damages from Thomas, they are likely to be symbolic rather than severely punitive.

Daniels, as another injured party, did not directly fight with Roberts but was a victim of assault and battery and, arguably, intentional infliction of emotional distress by Roberts. He is not likely to be found liable for any wrong-doing.

Thomas and Daniels can pursue the injured Roberts for the damages outlined above, but are likely to do so only in response to a suit from Roberts, as a counter-suit.

That all three parties are assumed to be below the age of majority will also influence the cases, if any, as there will have to be a discussion about whether or not any of the parties’ actions should be treated with the same severity as they would be treated if the parties were legally adults. Generally, children and minors involved in disputes are treated somewhat more gently and leniently by the courts, as long as their actions are considered appropriately reasonable for their age(s).


Saenz v. Andrus, 195 Ga.App. 431 (April 23, 1990).

Lau’s Corp. v. Haskins, 261 Ga. 491, 405 SE2d 474 (1991).

Robinson v. Kroger Co., 268 Ga. 735, 736 (1), 493 SE2d 403 (1997).

Sailors v. Esmail Intl., 217 Ga. App. 811, 813 (1), 459 SE2d 465 (1995).

Driver v. Leicht, 215 Ga. App. 694, 695, 452 SE2d 165 (1994).

Ga. Code Ann., § 16-3-21.

Ga. Code Ann., § 16–5–23.1.

Ga. Code, § 26–1302(b).

O.C.G.A., § 51-1-14.

O.C.G.A., § 16-3-21(b)(3).

O.C.G.A., § 16-2-2

15 A.L.R. 4th 118

18 Ga. Jur. Criminal Law § 6:71

Lawson v. Bloodsworth, 313 Ga.App. 616 (Jan. 18, 2012). [Assault and battery case. Headnote: “High school student filed suit against his teacher, asserting claim for assault and battery based on alleged incident in which teacher threw a chair at student, which hit his leg.” Student eventually prevailed, was awarded damages for emotional distress upon appeal.]

Simonton v. Sauls, 74 Ga.App. 3 (June 13, 1946). [Assault and battery case. Headnote: “Suit by Jurelle Sauls against Odessa Simonton to recover damages for alleged assault and battery, wherein defendant filed a cross-action for damages for an assault and battery allegedly committed upon the person of defendant by plaintiff.”]

Wilson v. The State, 279 Ga. 104, 105(2), 610 S.E.2d 66 (2005).

Strong v. The State, 264 Ga. 837, 838(2), 452 S.E.2d 97 (1995).

Walden v. The State, 267 Ga. 162, 163(2)(a), 476 S.E.2d 259 (1996).

Russell v. The State, 152 Ga.App. 693, 263 S.E.2d 689 (Dec. 4, 1979) (Certiorari Denied Jan. 25, 1980). [Excerpt: “The Court of Appeals, Shulman, J., held that: (1) mere fact that defendant did not initiate fight did not necessarily show that he was not guilty of aggravated assault…”]

Simmons v. The State, 172 Ga.App. 695 (Nov. 21, 1984).

Frasier v. The State, 295 Ga.App. 596 (Jan. 20, 2009).

Ga. Const. Art. 1, § 1, Par. 11(a).

Sailors et al v. Esmail International, Inc., 217 Ga. App. 811, 459 SE2d 465 (1995). [Assault and battery case. Sailors voluntarily joined an ongoing altercation while legally drunk and engaged in mutual combat while ignoring uninvolved witnesses who urged all the fighting parties to cease and desist, was wounded by a knife, sued owner of property where injury occurred. Sailors lost.]

Hansen et al v. Etheridge et al, 232 Ga. App. 408, 501 SE2d 517 (1998).

George E. Guay III & Robert Cummins, Tort Law for Paralegals, (2010). Retrieved from http://digitalbookshelf.southuniversity.edu/#/books/0558542700/pages/48710147 (January 25, 2013).

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