Robert Duffield sued George Chui and Matthew Methvin after Chui punched Duffield in the jaw, causing Duffield to sustain a serious injury.1 The case was tried by a Fulton County jury, which returned a defense verdict, and the court below entered judgment upon the verdict for Chui and Methvin. Duffield appeals from the judgment for Chui,2 contending that the trial court erred when it charged the jury on negligence principles, rather than the law of battery. We agree, and we reverse the judgment below as to Chui and remand for a new trial. A trial court must instruct a jury on the law “as to every controlling, material, substantial and vital issue in the case.” Berger v. Plantation Pipeline Co. , 121 Ga. App. 362, 364 6 173 SE2d 741 1970 citations and punctuation omitted; Gurin v. General Motors Corp. , 171 Ga. App. 159, 160 1 318 SE2d 830 1984 “The trial court is obligated to instruct the jury on all legal theories and issues raised by the parties and supported by the evidence.”. The failure to charge on a properly asserted and legally cognizable theory of recovery, “whether requested or not, or attention be called to it or not,” is harmful as a matter of law. Tempo Mgmt. v. Lewis , 210 Ga. App. 390, 391 1 436 SE2d 98 1993. Here, the trial court refused to charge the jury on battery, and it charged the jury only on negligence, because Duffield, the court said, alleged negligence in his complaint and mentioned “duty” and “breach of duty” —concepts that generally are associated with the law of negligence —in the proposed pretrial order. Even so, Duffield also asserted a distinct claim for battery in his complaint,3 and he explained in the proposed pretrial order that “this case involves an intentional tort.”
Moreover, throughout the charge conference, Duffield repeatedly urged the court to charge on the law of battery, noting at one point that “this is a case about intentional conduct, not about negligent conduct,” and explaining at another that “this case is not about negligence on Chui’s part. . . . It’s an intentional tort.” Later, Duffield argued yet again that “this case is about an intentional act. It wasn’t a negligent act. It wasn’t about I made a mistake. I messed up. He intended to do what he did. It takes his, it takes Chui’s, conduct out of negligence.” And when the court asked Duffield about which charges were appropriate, Duffield responded: It’s not a negligence case. . . . It’s a battery. The jury should be charged on whether or not there was a battery committed. Okay. Then they have to figure out if the battery was justified. They’ve admitted they intentionally —Chui admitted he wasn’t negligent about doing it, he did it on purpose. So I would ask the Court to charge on battery as it relates to Chui’s conduct. In addition, Duffield submitted written requests to charge on battery.4
