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Banks v. Shivers

Utah Supreme Court
432 P.2d 339 (1967)


Facts

Artie Banks (plaintiff) and Roy Shivers (defendant) attended the same college in Utah. One night, Shivers went to Banks’s dorm on campus to cook chicken. Shivers and Banks exchanged disagreeable words with each other, and Shivers violently clapped his hands in front of Banks’s face while telling her he was going to knock her upside the head. Banks then told Shivers to leave, but Shivers refused to leave until his chicken was cooked. Banks hit Shivers, and Shivers claimed he then pushed her down and stood over her. Banks and Shivers both brought suit for assault and battery. The trial court instructed the jury on the definition of assault, stating that an assault occurs if (1) there is an unlawful attempt and (2) a present ability to injure another. The jury found there was no cause of action for assault or battery and Banks appealed.

Rule of Law

Issue

Holding and Reasoning (Henriod, J.)

Dissent (Ellett, J.)

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