|Kevin Kelly worked for the Monmouth County (NJ) Buildings and Grounds Department. When delivering a package to the reclamation center, he was met by the supervisor, Alain Fortier, who offered his right hand for a handshake.
While shaking hands, Fortier commented that Kelly had "a good grip" and he squeezed Kelly's hand even harder. In response, Kelly tightened his grip. Fortier then said, "you got some kind of handshake" and "you are some kind of man."
What happened next is disputed. According to Fortier, he attempted to loosen Kelly's grip by extending his left hand toward Kelly's lower body. By contrast, Kelly says that the handshaking had become a "testosterone type thing" and that Fortier attempted to grab at Kelly's crotch.
Feeling injured by the incident, Kelly sued the County and Fortier for assault and battery. However, because the County's liability was limited to workers' compensation, the case quickly focused on Fortier's liability for the handshaking incident.
In his defense, Fortier pointed out that he and Kelly were simply co-workers shaking hands, which led to them playing around. Fortier argued that because Kelly engaged in "horseplay," he assumed the attendant risks and could not later complain that he didn't consent to the contact.
However, the Court noted that while "a greeting between the parties would fall within the scope of Fortier's employment ... it is arguable that when this handshake evolved into a 'testosterone type thing,' it exceeded the scope of employment."
The Court wrote that employees may be liable for assault and battery, even if what they intended was "only a joke." The Court observed that Kelly "consented to shake Fortier's hand and, perhaps, consented to firmly shake Fortier's hand. But it does not follow ... that by agreeing to shake hands Kelly intended to extend his consent to being touched by Fortier to areas below his waist or to otherwise expand the zone of consensual touching beyond a traditional handshake."
Because "the alleged touching of ... genitals represents a similar type of contact that constitutes a battery in the absence of consent," the Court ruled that a jury should decide whether or not Kelly's claim of assault was valid. [Kelly v. Monmouth (NJ 2005) no. A-4178-03T3]
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