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IN THE CIRCUIT COURT OF TUSCALOOSA COUNTY, ALABAMA
SARAH GRIMES,
PLAINTIFF,
VS.
KRISTEN SABAN,
DEFENDANT.
Case No.: CV-2012-900538
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
COMES NOWtheDefendant Kristen Saban, by and through her attorneys of record,and
pursuant to Rule 56(c) of the Alabama Rules of Civil Procedure moves this Honorable Court for
entry of summary judgment against Plaintiff Sarah Grimes. In support thereof Defendant states
as follows:
I. STATEMENT OF THE CASEThis case originated with the filing of the Complaint by the Plaintiff on June 26, 2012.
The Complaint contains various allegations all of which are incorporated into a single count for
assault and battery. The Complaint tends to allege, although never does so directly, two legal
concepts on which Plaintiff relies: first, that the Defendant committed an assault and battery on
the Plaintiff; second, the Defendant used excessive force in defending herself.
Under Alabama law an assault and battery occurs when there is Any touching by one
person of the person or clothes of another in rudeness, or in anger, or in a hostile manner....1As
part of her Answer to this Complaint, Defendant pled, inter alia, self-defense. For self-defense
to be proven, the finder-of-fact would have to reasonably conclude that the defendant did not
provoke or bring on the difficulty, that the defendant did not fight willingly but fought only to
1Alabama Pattern Jury Instructions 5.00.
ELECTRONICALLY FILED12/12/2013 3:41 PM
63-CV-2012-900538.00CIRCUIT COURT OF
TUSCALOOSA COUNTY, ALABAMAGARIA HAMNER BOBO, CLE
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repel or prevent an attack being made upon him and that the defendant did not use any more
force than was necessary to repel such an attack, and [t]he use of more force than was
necessary to defend oneself is an assault and battery even if the other party provoked the
difficulty.2
Defendant files this motion for summary judgment because the Plaintiff has not shown,
and cannot show by substantial evidence, that the Defendant committed an assault or battery on
the Plaintiff or that in defending herself, the Defendant used excessive force.
II. SUMMARY JUDGMENT STANDARDThe standard of review on a motion for summary judgment is well settled under Alabama
law. Pursuant to Alabama Rule of Civil Procedure 56(c)(3), summary judgment is proper if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law. Once the movant meets this burden, the
burden then shifts to the nonmovant to rebut the movant's prima facie showing by substantial
evidence. Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala. 1992). (S)ubstantial evidence
is evidence of such weight and quality that fair-minded persons in the exercise of impartial
judgment can reasonably infer the existence of the fact sought to be proved. West v. Founders
Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989) (Emphasis added).
Here, Defendant easily presents a prima facie showing that not only did Defendant not
assault or batter Plaintiff, it was the other way around, Plaintiff committed an assault and battery
on Defendant. Moreover, to Plaintiffs physical attack, Defendant used only a reasonable amount
of force in defense of herself. As the evidence proffered herein clearly shows, Defendant used
only the necessary amount of force required to repel Plaintiffs assault and battery on her.
2Alabama Pattern Jury Instruction 5.02
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The quality and quantity of evidence from all non-party witnesses renders it impossible
for Plaintiff to present substantial evidence of an assault and battery by Defendant, or that
Defendant did anything other than act reasonably when defending herself from Plaintiffs verbal
and physical attacks on her.
III. STATEMENT OF UNDISPUTED FACTS
1. On August 29, 2010, at about 2 a.m., Plaintiff Sarah Grimes, Defendant Kristen Saban
and their friends McKinnon Moultrie, Hannah Muncher, and Megan Williams were in the
kitchen of the Defendant's house. (Exhibit A: Grimes, Dep. 77:16-78:7). Plaintiff Grimes had
been drinking vodka that night and mixing it with prescription medication that did not mix well
with alcohol; it made her act strange.
Q. You're still drinking the vodka out of your purse?
A. With a Sprite from Rounders, which they're on the house. So it wouldn't --there wouldn't have been a tab for that. (Grimes, Dep. 86:9-14).
To the best of my memory, prescription medications taken within 24 hoursof assault were taken the morning of August 28, and include Amphetamine
Salts, Buspirone, and Metoclopramide.3(Exhibit B: Plaintiffs Response
to Defendants Interrogatory #4 dated 9/28/2012).
[Sarah] took migraine meds even before this incident. Alcohol doesn't mix well
with her meds and she knew that and she would sometimes get strange whendrinking. (Exhibit C: Affidavit of Courtney Reigel, p.3).
2. While the Plaintiff and Defendant were in the kitchen of Defendants house, Plaintiff
acted in a rude manner and yelled insults at the Defendant.
And finally I just said something to the effect of, shut up, we're tired of
hearing about it. (Exhibit A: Grimes, Dep. 106:3-5).(Emphasis added).
No one else was saying anything about Kristen talking about a boy or
shutting up or anything, Sarah just snapped and started yelling at
Kristen.(Exhibit D: Affidavit of McKinnon Moultrie,p.1). (Emphasis
added).
3These were potent prescription drugs, the names and nature of which will be provided to the Court at the summary
judgment hearing.
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3. In response, Defendant got up and went to her bedroom.
Kristen got her feelings hurt at Sarah and started walking back to her
room. (Exhibit E: Affidavit of Hannah Muncher, p.1).
And she went in her room. (Exhibit A: Grimes, Dep. 106:10).
4. As Defendant was retreating to her bedroom, Plaintiff called her crazy and told her she
was a psycho.
I may have told her in the kitchen you're crazy. (Exhibit A: Grimes,
Dep. 133:1-2). (Emphasis added).
Sarah called Kristen a psychoas she was walking to her room.
(Exhibit E: Affidavit of Hannah Muncher, p.1). (Emphasis added).
Sarah called Kristen psycho and crazy. (Exhibit D: Affidavit ofMcKinnon Moultrie,p.1). (Emphasis added).
5. As Defendant entered her bedroom, she shut and locked the door to get away from
Plaintiff.
So, [Kristen] went into her room and locked the door. (Exhibit C: Affidavit of
Courtney Reigel, p.1).
Q. But you do agree she was inside a locked door?
A. She was (Exhibit A: Grimes, Dep. 411:2-4).
6. McKinnon Moultrie, Courtney Reigel and Plaintiff Grimes went to Courtney Reigel's
room, which was right across from the Defendants room. Thirty minutes later, Hannah Muncher
went to Defendant's room to check on her. After Hannah entered Defendant's room she also
locked the door after herself. (Grimes, Dep. 125:1-4, 129:12-14).
7. While in her room, at some point Defendant put a post on her Facebook page which
stated: No one likes Sarah, yay. (Grimes, Dep. 129:15). When Plaintiff saw the post on her cell
phone, despite being told not to go by her friend, she immediately advanced to the Defendant's
locked bedroom door, but not before telling her friend, if she touches me I will kill her.
(Grimes, Dep. 145:12-13, 373:1-375:3).
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8. Approaching Defendants bedroom, where Plaintiff knew Defendant had retreated thirty
minutes earlier to get away from Plaintiffs insults and yelling, Plaintiff started a second
altercationwith Defendant.
Q. She [Defendant] retreated?
A. Yes.
Q. She got away from the situation?A. Yes.
Q. Okay. Y'all are not arguing during that thirty minutes?
A. Correct.Q. You see the Facebook post, you get up and you go towards her room.
Don't you know that an argument is fixing to start?
A. A verbal argument, probably, yes. (Grimes, Dep. 156:6-17).
9. In addition to admitting she was the aggressor of the second altercation, Plaintiff also
admitted that there would have been nofight but for her initiating the second argument.
Q. Yeah. Well, would it be a fair statement at that point to say that youwere the aggressor?
A. For the verbal altercation, yes, I went to Kristen's door . (Grimes,
Dep. 156:20-22-157:3-4). (Emphasis added).
Q. If you had walked away when she was inside with the door locked,
[the fight] wouldn't have happened?
A. Yes, I've taken responsibility for verbal. (Grimes, Dep. 409:9-13).(Emphasis added).
10. Plaintiff started loudly banging on Defendant's locked bedroom door screaming and
cursing at Defendant.
Q. You got up, though; right?
A. Yes.
Q. And went to the door. She said you started yelling and screaming. Did
you do that?
A. My voice was raised when I was banging on Kristen's door, yes.
Q. Well, would that be a yell?A. I suppose you could call it a yell, yes.
Q. A scream?
A. Possibly. (Grimes, Dep. 401:13-23-402:1-2). (Emphasis added).
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11. Banging on the Defendants locked bedroom door and attempting to open it, Plaintiff
Grimes screamed "Take it off", "Open the fucking door you crazy bitch", "I'm going to kill you,
you crazy bitch." (Exhibit E: Affidavit of Hannah Muncher, p.1). (Emphasis added).
She tried to open it but the door was locked. She was screaming at
the top of her lungs, open the fucking door before I kill you. She was
mad and shaking.(Exhibit C: Affidavit of Courtney Reigel, p.2).(Emphasis added).
I remember sitting on the end of Courtney's bed and the next thing Iknow Sarah is screaming and yelling to Kristen for her to open this
door right now or I swear to God I'm going to kill you! Sarah was
very angry and out of control.(Exhibit D: Affidavit of McKinnon
Moultrie, p.1). (Emphasis added).
12. Defendant took the post off and opened the door to show Plaintiff that the post was off.
Q. When Kristen opened the door, who spoke first, you or her?
A. She took her phone. She had it in her hand. And I believe she had
taken the status off of Facebook. I didn't look at the phone to even see.She said, I took it off, I took it off -- (Grimes, Dep. 151:9-16). (Emphasis
added).
13. As Defendant opened the door showing Plaintiff her phone, Plaintiff continued to yell at
Defendant, calling her crazy.
A. She said, I took it off, I took it off --
Q. Uh-huh.A. -- in reference to the Facebook status.
Q. Uh-huh.
A. And I said something to the effect of, I don't care, okay, but we'redone, and I called her crazy. (Grimes, Dep. 151:15-23). (Emphasis
added).
14. At that point, as Plaintiff testified, it did not matter to Sarah Grimes whether the post was
taken off, anger had built up inside her for other reasons.
Q.She took thepost off, as far as you know. She saidshe did. She's trying to
show it to you.Why wouldn't that be mission accomplishedand you turn around
and walk off?A. I think at that point there had been so much of a buildupthat that was the
surmise (sic) of our friendship at that point --
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Q. Okay.
A. -- regardless of whether it had been taken off. (Grimes, Dep. 153: 13-23-154:1). (Emphasis added).
15. Defendant was not screaming back at Plaintiff, but was upset, scared and crying because
of the Plaintiffs yelling, cursing and banging on Defendants bedroom door.
At that point, Kristen opened the door and looked scaredbecause ofSarah's yelling and pounding on her door. Kristen was not yelling and did
not raise her voice. (Exhibit C: Affidavit of Courtney Reigel, p. 2). (Emphasis
added).
Kristen was not yelling back, but she was crying and upset. (Exhibit E:
Affidavit of Hannah Muncher, p.1). (Emphasis added).
16. Again, Plaintiff Grimes admitted that she was the aggressor.
One thing for certain, Sarah did not walk away at any point, and had she notbeen cussing and yelling and pounding on Kristen's door, none of this would have
happened. (Exhibit C: Affidavit of Courtney Reigel, p.2).
Q. Okay. But -- so you were willing to engage in a verbal altercation --
A. Yes.
Q. -- right? Okay. To that extent, you were the aggressor; right?
A. Verbally.
Q. Okay. Are you agreeing with me?
A. Yes.
Q. Okay. So you bang on the door, she comes, she shows you the phone, and
she says, it's off; correct?
A. (Witness nodding head affirmatively.) (Grimes, Dep. 158:4-18). (Emphasisadded).
17. At that point, as a result of the Plaintiffs continuing threats and insults aimed at
Defendant and because Plaintiff advanced to within inches of Defendants face, a scared but
justified Defendant, in an effort to remove Plaintiff from getting so close to Defendants face,
pushed Plaintiff away.
Q. So, now, what changed you say, you're crazy. How far apart were y'all at
that point?
A. We were fairly close. I'm not sure an approximate distance.(Exhibit A: Grimes, Dep. 158:19-23). (Emphasis added).
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Sarah is continuing to yell at Kristen at this point and got within inches of
herface. (Exhibit C: Affidavit of Courtney Reigel, p. 2). (Emphasis added).
Once Sarah got close to Kristen, Kristen pushed Sarah out of the way to get
her out of her face. (Exhibit C: Affidavit of Courtney Reigel, p. 2). (Emphasis
added).
18. The push did not cause Plaintiff to fall or hit anything.
Q. Okay. You didn't fall down, did you?
A. No. (Grimes, Dep. 162:8-10).
[Kristen] didn't push her hard enough to hurt her and Sarah did not hit the
wall or the doorframe because of Kristen's push. (Exhibit C: Affidavit of
Courtney Reigel, p.2).
19. Instead of the argument being over because the Facebook post had been removed and
Plaintiff was no longer in the Defendants face, Plaintiff advanced to Defendant again, this time
she grabbed Defendant's throat and shoved her. With Plaintiffs hand(s) around her throat,
Defendant hit at Plaintiff, striking her face. From that point on, it was mostly pushing, pulling,
scratching and pulling of hair by both Plaintiff and Defendant.
A. And I grabbed her like this (indicating) and I shoved her back.Q. And grabbed her where?
A. One hand on her throat, one hand on her chest (Grimes, Dep. 160:16-
20). (Emphasis added).
Sarah then put her hand on Kristen's throat and at that point was when
Kristen hit her. I only saw one punch. Kristen told me later that Sarah was
coming for her throat and that's when she hit her. That matches with whatI saw. (Exhibit C: Affidavit of Courtney Reigel, p. 2).
Kristen defended herself and landed a punch on Sarah's nose or eye(Exhibit E: Affidavit of Hannah Muncher, p.1).
Both of them were throwing punches but it was more of a cat fightthan anything else. Not many punches were landed, they were mainly just
scratching and pulling hair. (Exhibit E: Affidavit of Hannah Muncher,
pp.1-2).
I only saw a punch or two and both girls were swinging. It was mostly
pushing and pulling and some scratching and hair pulling. It was more or
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less a cat fight and a pretty even one from what I saw. (Exhibit D:
Affidavit of McKinnon Moultrie, p.1).
20. After the girls were separated, Defendant went to her room, fell to the floor and started to
cry. Again, Plaintiff followed Defendant into her bedroom. This time she got on top of
Defendant.
We finally got them apart and Kristen went to her room and she kind of
collapsed on the floor and was bawling crying. (Exhibit F: Affidavit of
Beth Terry, p.2).
I then walked into Kristen's room and Sarah was sitting on top of
Kristen. (Exhibit G: Affidavit of Megan Williams, p.1).
21. With Plaintiff sitting on top of the Defendant, Defendant stated that Plaintiff threatened to
kill her and grabbed her throat and only then did she strike at Plaintiff.
I then walked into Kristen's room and Sarah was sitting on top of Kristenand both of them were crying. Kristen was saying you threatened to kill
me,you came at me. (Exhibit G: Affidavit of Megan Williams, p.1).
(Emphasis added).
A. I just wanted her (Kristen) to look at my face. And I said, I would never do
this to you.
Q. Yeah. And what did she say?
A. She (Kristen) immediately said, you grabbed my throat. (Grimes, Dep. 184:5-10).
22. Even though Plaintiff was drunk and her injuries were minor, Plaintiff insisted on
going to the emergency room to document her injuries for her car accident case pending in
Florida.
Sarah kept saying that she needed to go to hospital to document this for
her car wreck case. (Exhibit E: Affidavit of Hannah Muncher, p.2).
Sarah was just drunk. (Exhibit E: Affidavit of Hannah Muncher, p.1).
I did not think Sarah needed to go to the hospital at the time.
Sarah was insisting on going to the hospital, so I went took her since she
was in no shape to drive. (Exhibit C: Affidavit of Courtney Reigel, p.2).
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23. Shortly thereafter, Plaintiff and her mother attempted to extract money from Kristens
family, not Kristen. Sarah Grimes asked her mother, Tina Grimes, to talk to Defendants mother,
Terry Saban, for two reasons: to make things right financially" and "so it wouldn't happen
again," not for compensation of any injuries.
A. I asked my mother to go sit down and talk with her [Defendantsmother].
Q. For what purpose?
A. I assume that they would be able to somehow make the situation right.Q. To make a settlement?
A. I'm not even sure if that's why. I just thought that it would have been
taken care of.
Q. Taken care of monetarily for your bills?
A. For my hospital bills --Q. Yeah.
A. -- possibly. And -- making sure it didn't happen again.
Q. Okay. So two reasons. One to make things right financially, and,
two, so it wouldn't happen again; right?
A. Yeah. (Grimes, Dep. 222:9-23-223:1-8). (Emphasis added.).
24. When Plaintiff was unable to obtain a settlement from the Defendant's parents, she filed
this lawsuit on June 26, 2012.
A. I just -- I thought it would be able to be resolved just through them
talking, and it wasn't.
Q. Uh-huh.
A. And I'm not sure why that was. I'm not saying I know why it was, but itwasn't.
Q. But when you say it resolved, but it had two parts, as you said?
A. (Witness nodding head affirmatively.) (Grimes, Dep. 224:20-23-225:1-7).
A. Why did I wait so long to file a Complaint? Because, obviously, I was
hoping this would have been resolved without needing to file a lawsuit.Q. And by "resolved," that's the two things we've covered, money and
A. Right..(Grimes, Dep. 366:11-17).
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IV. ARGUMENT AND MEMORANDUM OF LAW
In the case sub judice, the undisputed facts4 firmly establish that on August 29, 2010,
Plaintiff Sarah Grimes, a guest at Defendants house, while under the influence of alcohol and
prescription drugs which rendered her too drunk to drive a car, initiated an altercation with
Defendant in the Defendants house. Thirty minutes later, Plaintiff assaulted Defendant in the
doorway of the Defendants bedroom, positioning herself within inches of Defendants face,
forcing Defendant to defend herself from Plaintiffs aggressive acts of threatening, then choking
Defendant. The undisputed facts also establish that Plaintiff filed this suit only because she
sought, but was unable to obtain, a monetary settlement from the Defendants parents. As
discussed infra, the undisputed evidence shows that there are no genuine issues of material fact
and Defendant Kristen Saban is due to be granted summary judgment on Plaintiffs claim for
assault and battery.
A. PLAINTIFF GRIMES WAS THE INITIAL AGGRESSOR WHO INITIATED
ALTERCATIONS WITH DEFENDANT AND FORCED DEFENDANT TO
DEFEND HERSELF FROM PLAINTIFFS MULTIPLE ATTACKS.
On August 29, 2010 Plaintiff Sarah Grimes, while under the influence of alcohol and
prescription drugs, initiated several altercations with Defendant in the Defendants house. When
they were sitting in the kitchen, Plaintiff initiated the first altercation by yelling to Defendant
Shut up, we are tired of hearing about it. Plaintiffs yelling hurt Defendants feelings. She got
up and retreated to her bedroom. As Defendant was retreating to her room, Plaintiff, called her a
psycho; Plaintiff admitted calling Defendant crazy. Defendant then entered her bedroom and
4All facts in this motion are either admissions of the plaintiff or testimony of eyewitnesses, or both; no fact is fromDefendants testimony. The only fact the Plaintiff refused to admit was that the fight was a draw (as every witness
testified) with neither sustaining injuries that warranted a trip to DCH Regional Medical Center. Significantly,
Plaintiff admits saying she needed to get the event documented because of her already pending personal injury suit
in Florida. Her inflated description of beating in her Complaint is belied by every eyewitness affidavit, all of
which are attached hereto. Even if Plaintiff attempted to suggest she was not the aggressor or that Kristen Saban wassomehow excessive in her defense, her biased testimony does not rise to the level of evidence needed to defeat
summary judgment. See Walsh v. Douglas, supra.
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locked the door to get away from Plaintiff. While in her room Defendant posted No one likes
Sarah, yay on her Facebook page. Plaintiff saw the post and immediately went to Defendants
bedroom door. This time, Plaintiff admitted to being the aggressor when she went to Defendants
door, started loudly banging on the door, attempted to open it and demanded entry, yelling
obscenities and threats on Defendants life.5The actions by Plaintiff, without a doubt, scared and
upset Defendant. When Defendant finally opened the door to show Plaintiff that the Facebook
post had been removed, Plaintiff continued yelling, and cursing Defendant, and in a provoking
manner, got within inches of the Defendants face while Defendant was standing in her bedroom
doorway. Having the drunk, angry, yelling and threatening Plaintiff in her face and with nowhere
to retreat, the Defendant was justified in using a sufficient amount of force to repel her
aggressorshe pushed Plaintiff away from her face in a defensive move. SeeAla. Code 13A-3-
23 ([a] person is justified in using physical force upon another person in order to defend
herself.from what he or she reasonably believes to be the use or imminent use of unlawful
physical force by that other person.). Indeed, under similar circumstances, the court in Harris
v. Lombardi granted summary judgment to a defendant who pushed plaintiff away in a defensive
move when he got in the defendants face shouting threats. Harris v. Lombardi, 897 So.2d 1136,
1138 (Ala.Civ.App.,2004).
Plaintiff admitted that the second altercation, the one on which she sued, would have
been over if Plaintiff had simply walked away after her demand to have the Facebook post
removed was accomplished. However, the Plaintiff did not walk away; her aggression towards
Defendant continued and escalated. She lunged at the Defendant and began choking her in the
doorway of the Defendants bedroom. Certainly, Defendant was legally entitled to repel this
5Plaintiff attempts to dilute this fact by describing herself as only the verbal aggressor, but the aggressor,
nonetheless. (Undisputed Facts, 16).Alabama law recognizes no such distinction.
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attack also, and had no other choice but to defend herself from Plaintiff. Defendant only hit at
Plaintiff as a direct result of Plaintiffs choking Defendant.6Both parties then started pushing,
scratching, swinging fists and punching at each other. Obviously, had Plaintiff not been choking
the Defendant, the remainder of this altercation would not have occurred.
These undisputed facts show that Plaintiff Sarah Grimes was the initial aggressor who
provoked Defendant to act in self-defense. [Self-defense] is complete in the [civil] class of
cases, if it appears that the defendant did not provoke the difficulty, and did not fight willingly,
but only to repel or prevent an attack upon him, and that in doing this, he used only such force as
was reasonably necessary to that end. Greenwood Cafe v. Walsh, 15 Ala.App., 519, 74 So. 82
(Ala.App. 1917).
The facts described above establish that Defendant did not provoke the difficulty and did
not fight willingly. In fact, the evidence shows that it was Plaintiff who started all the
altercations. First, Plaintiff yelled insults to Defendant in the kitchen of Defendants house which
made Defendant retreat to her bedroom. Second, Plaintiff advanced to Defendants door, cursing
and threatening to kill Defendant. Next, Plaintiff virtually invited Defendant to act in self-
defense when she aggressively moved to within inches of Defendants face in the doorframe of
Defendants own bedroom. Fourth, when Defendant justifiably moved her back from her face
with a push not hard enough to injure Plaintiff or to disturb Plaintiffs balance, Plaintiff tried to
follow through with her drunken promise of if she touches me I will kill her. Having been
touched by Defendant, Sarah Grimes immediately retaliated with excessive force by choking the
Defendant. From that point on, the facts show Defendants additional defensive actions were
6All witnesses stated this was the only hit that landed. Plaintiffs description of the altercation from this point on
differs from all witnesses. However, that is of no consequence since the physical encounter in which they bothparticipated had begun and because Plaintiffs unsupported version does not have enough substance to be of the
necessary weight and quality of evidence necessary to defeat summary judgment.
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reasonably necessary to repel the attack by Plaintiff. The facts of this case clearly and
convincingly establish that Plaintiff Sarah Grimes was the initial aggressor who provoked the
Defendant into acting in self-defense. Her act of self-defense was to apply only a reasonable
amount of force necessary to repel Plaintiffs multiple attacks. Because Defendants actions were
in self-defense, they are a complete bar to this civil action for assault and battery; Plaintiff Sarah
Grimes cannot recover in this suit7.
B. THE FACTS OF THIS CASE SHOW THAT IT WAS PLAINTIFF WHO
ASSAULTED AND BATTERED DEFENDANT.
Plaintiff claims she was assaulted and battered by Defendant. However, the facts showit
was Plaintiff who committed the assault and battery, not Defendant. In a case very similar
to the case at bar, the following rules were applied concerning what constitutes an assault and
battery:An assault consists of . . . an intentional, unlawful, offer to touch the person of another
in a rude or angry manner under such circumstances as to create in the mind of the party alleging
the assault a well-founded fear of an imminent battery, coupled with the apparent present ability
to effectuate the attempt, if not prevented. On the other hand, a show of force accompanied by an
unlawful or unjustifiable demand, compliance with which will avert the threatened battery, is an
assault. Holcombe v. Whitaker, 294 Ala. 430, 318 So.2d 289 (Ala. 1975) (citing1 Harper &
James, The Law of Torts, at 223 (1956)). [T]he defendant is not free to compel the plaintiff to
buy his safety by compliance with a condition which there is no legal right to impose. Id. at
294. The evidence from the plaintiff was that the defendant was pounding on her door making
every effort to get into the apartment, and threatening to kill her if she persisted in taking him to
7See Ala.Code 1975 13A-3-23: A person who uses force, including deadly physical force, as justified and
permitted in this section [in self-defense] is immune from criminal prosecution and civil action for the use of such
force
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court. We cannot say, as a matter of law, that this was not sufficient to arouse an apprehension
of harm or offensive conduct.Id.
Here, Plaintiff assaulted Defendant when Plaintiff intentionally went to Defendants
bedroom door and started loudly banging on it, attempting to open it and threatening to kill
Defendant if she did not open the door. As stated in Holcombe, such an unlawful and unjustified
demand by Plaintiff, compliance with which would avert the threatened harm to Defendant,
constitutes an assault. Therefore, in the case sub judice,Plaintiffs banging on Defendants door,
an attempt to enter Defendants bedroom and the yelling of threats to kill Defendant if she did
not open the door, constitutes an assault of Defendant by Plaintiff Sarah Grimes.
The second act of assault of Defendant by Plaintiff Sarah Grimes occurred when
Defendant opened the door to show Plaintiff the Facebook post had been removed. However,
instead of looking to verify the post was gone, Plaintiff began yelling and cursing at Defendant,
and then aggressively advanced to within inches of Defendants face while Defendant was
standing in the doorframe of her own bedroom. This intentional and unlawful act by an
obviously intoxicated, angry and rude Plaintiff constituted the most important and obvious act of
assault of Defendant by Plaintiff Sarah Grimes. This act of unprovoked aggression by Plaintiff
was met, appropriately enough, with a push-away act of self-defense.
When Defendant, acting in self-defense, moved Plaintiff away from her face with a
push not hard enough to injure Plaintiff or to disturb Plaintiffs balance, Plaintiff retaliated
with excessive force by choking the Defendant. This act, without a doubt, constituted an assault
and battery of Defendant by Plaintiff Sarah Grimes. The Plaintiffs aggressive actions towards
Defendant preclude any recovery Plaintiff seeks. SeeBynum v. Jones, 177 Ala. 431, 59 So. 65
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(Ala. 1912) (in an action for assault, where it appears that the plaintiff first attacked the
defendant who fought in self-defense, plaintiff cannot recover).
Incredibly, that was not the last unlawful touching of Defendant by Plaintiff. After they
were pulled apart, Plaintiff followed Defendant to her bedroom. Seeing the Defendant lying on
the floor crying, Plaintiff went over to Defendant and sat on top of her. This unwanted touching
of Defendant by the intoxicated Plaintiff restricted Defendants movement and constituted
another act of battery of Defendant by Plaintiff. As such, Plaintiff cannot continue the
prosecution of this action under Alabama law.
C. THE GREAT WEIGHT OF THE EVIDENCE SHOWS THAT THEDEFENDANT USED ONLY REASONABLE FORCE TO REPEL THE
PLAINTIFF.
Concerning the degree of force, Defendant Kristen Saban used (in defense of herself), the
following salient facts exonerate Defendant. First, taking only Plaintiffs version of events:
Plaintiff was sitting on the bed with Courtney Reigel when she noticed on her cellphone that Defendant had posted on her Facebook page that Nobody likes Sarah,
yay.
Plaintiff immediately got up and headed towards Defendants locked bedroomdoor informing Courtney that if Defendant touched her, she would kill her.
Plaintiff proceeded across the hall and began banging on Defendants door usingprofanity and threats.
When Defendant opened the door to show her that the post had been taken down,
the Plaintiff called the Defendant crazy and got in close proximity to
Defendant. While eye-witnesses say Plaintiff got within inches of Defendants
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face, Plaintiff reluctantly conceded: We were fairly close. Im not sure of an
approximate distance; we were closer than that (an arms length).
Defendant pushed her away then Plaintiff grabbed Defendants throat. Accordingto the Plaintiff, during the shove she hit the door frame of Kristens room striking
her head on the door. However much that fact was stretched, Plaintiff was willing
to admit she did not fall down and at no time lost consciousness.
After that, a physical altercation began with the next thing happening from thePlaintiff, .I shoved her back, (Grimes Dep. 160:17), actually, she began
choking Defendant. Then, Plaintiff says Defendant starts punching me
(Grimes, Dep. 163:5-6). According to the Plaintiff, the Defendant hit her in her
face, (Grimes, Dep. 164:5).
Plaintiff could not remember how many blows there were after that. However,she was able to remember she did not swing back and lifted her arms only to
defend herself, (Grimes, Dep. 164:10-12).
Plaintiff says the Defendant pulled her hair, (Grimes, Dep. 164:13), and sheconfirms that neither one of them was on the ground during the fight, (Grimes,
Dep. 165:18-20). She does not remember if Defendant actually hit her arm or not,
(Grimes, Dep. 168:12-15). She claims that she got hit more than five times, but
does not remember a specific number, although she did say the most it could have
been was seven or eight, yet she could not state where any of them landed.
(Grimes, Dep. 169:1-4, 7). The Plaintiff admits that she was scratching the
Defendant during the altercation, (Grimes, Dep. 407:20-21).
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Plaintiff claims she sustained head injuries, had repeated night terrors, anxiety, physical
trembling, fears of dying from brain injuries, trouble sleeping, and intrusive recollections of the
event. She also says she had an increase in her migraine headaches since this incident. Because
the following evidence from all eye-witnesses shows these claims to be false in their entirety,
Defendant pretermits her argument that these injuries were pre-existing from Plaintiffs earlier
car wreck. Moreover, because Plaintiff brought any injuries she sustained on herself during her
assault and battery of Defendant, she cannot receive any compensation for her injuries.
Next, contrary to the Plaintiffs biased testimony, each and every witness who actually
saw the assault, all of whom acknowledged being friends with both parties, testified
completely opposite from all of the Plaintiffs material allegations. Courtney Reigel, who was
seated on the bed in her room located across the hall from the Defendants room and could
clearly see the events as they unfolded, stated in her affidavit that the Plaintiff got within inches
of the Defendants face and when the Defendant pushed her out of the way to get her out of her
face, she did not push her hard enough to hurt her and Sarah did not hit the wall or the door
frame because of Kristens push. Sarah then put her hand on Kristens throat and at that point is
when Kristen hit her. She only saw one punch. From that point on, the altercation amounted to
scratching at each other and pulling hair. Concerning the Plaintiffs injuries, Courtney stated I
did not think Sarah needed to go to the hospital at the time and I still do not think she needed to
go to the hospital. Her face was a little bit swollen and her nose was a very small amount of
blood on it. Both Sarah and Kristen had scratch marks and blood on them. She was with Sarah
the whole time at the hospital and was there when the doctors were talking to the Plaintiff. She
stated in her affidavit: They checked her out and told her she was fine. They never mentioned
she had a concussion The doctors told her that she looked ok and gave her some pain
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medicine. There was no mention of nerve damage, needing follow up care, or anything like that.
She also stated that the Plaintiff took lots of medicines for anxiety and for pain prior to this night
and the altercation with the Defendant. She added that the Plaintiff took medicines to wake up
and to go to sleep. She took migraine meds even before this incident. The next day after this
event, Sarah was fine except there was a small bruise on her cheek. Sarah never slowed down
with going to parties, football games, swaps. She and I went together to the Penn State game on
September 11, 2010 and she showed no effects whatsoever of this event. I have noticed no
difference in Sarahs health or well-being since this incident. Her personality seems the same,
there is no difference in appearance once that bruise went away in a couple of days, and she only
complained about arm for about 1 week after the event.
Hannah Muncherwas in the room with Kristen when Sarah Grimes was pounding on
Kristens door and yelling obscenities. She had a birds eye view of the entire incident. She
stated in her affidavit: When Kristen opened the door, Sarah immediately came at her throat and
was punching at Kristen. Kristen defended herself and landed a punch on Sarahs nose or eye.
Both of them were throwing punches, but it was more of a cat fight than anything else. Not many
punches were landed, they were mainly just scratching and pulling hair. At some point, Kristen
fell back and hit her head on either the bed or the dresser. Sarah was on top of her at that point
(Emphasis added). At the end of it all, Kristens nose was bleeding and she had scratches on her
back and Sarah had a puffy eye. From what I saw, it was pretty much an even fight. Neither got
the better of the other. Her eye was swollen and was a little red and I could see where she
would be a little concerned, but I just didnt think it was bad enough to go to the hospital. Sarah
kept saying that she needed to go to hospital to document this, for her car wreck case and that
she needed to get it checked out because what if this hurts my head even worse?
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McKinnon Moultrie was also a witness to this altercation. She stated that the fight
didnt last more than a few seconds. I only saw a punch or two and both girls were swinging.
It was mostly pushing and pulling and some scratching and hair pulling. It was more or less a cat
fight and a pretty even one from what I saw. After the fight ended Sarah goes back over to
Kristen and is screaming and yelling in her face that she needed to go to the Emergency Room. I
laughed when I heard that because neither of them needed to go to the ER and I told Sarah that
she didnt need to go to the ER. They both had some minor scratches and bruises on them, but
there certainly were no pools of blood in the floor or blood running down Sarahs chest
Sarahs temple was a tad puffy, but thats it. I remember seeing just a drop or two of blood on
the floor. McKinnon stated that she did not stay long at the ER because she didnt think she
(Sarah Grimes) needed to go in the first place. While she was there, however, I didnt hear
the doctors or nurses telling her anything at all about her injuries. There were certainly no life-
threatening injuries to either girl. From what I saw of the scuffle between her and Kristen, I
dont think Kristen caused her to have nose surgery or give her a concussion. I have been
around Sarah lots of times since this fight. Ive never heard her mention any nightmares or fears
of dying after this fight. I never heard her complaining about being hurt or having any headaches
or saw any evidence of any injuries at all.
Finally, Megan Williamswho was outside when the altercation began, came back in and
heard Kristen Saban say to Sarah Grimes, You threatened to kill me, you came at me and
Sarah said, Kristen we are best friends, we need to talk about all this, but I need to go to the
hospital. Sarah was saying how she needed to go and get checked out to make sure this hasnt
made my head injury worse. She was talking about how she had migraines all of the time from
that wreck and was afraid that this altercation with Kristen could make it worse. (Emphasis
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added). Megan testified that what she saw was nothing like what Plaintiff Grimes had described:
She had just a little blood on her nose and her eye was a little puffy. I didnt think she needed to
go to the hospital. Kristen had scratches all over her back. I have seen Sarah out a couple of
times since this night. She acts and looks the same.
Plaintiff has the burden of coming forward with substantial evidence. Plaintiff has the
burden of proof at trial8to clearly show an act of assault and battery was administered to her by
Defendant through admissible evidence. Here, her facts of assault do not even approach our
required substantial evidence standard. Substantial evidence is evidence of such weight and
quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the
existence of the fact sought to be proved. West v. Founders Life Assurance Co. of Florida, 547
So. 2d 870, 871 (Ala. 1989) (Emphasis added). However, [m]ere conclusory allegations or
speculation that fact issues exist will not defeat a properly supported summary judgment motion,
and bare argument or conjecture does not satisfy the nonmoving party's burden to offer
substantial evidence to defeat the motion. Blackburn v. State Farm Auto. Ins. Co., 652 So. 2d
1140, 1142 (Ala.1994). See also Ex Parte Nail Air Freight, Inc., 690 So. 2d 1219 (Ala. 1997)
(Hooper, C.J. dissenting) (The only evidence offered to show that the plaintiff did not make the
bomb threats was the plaintiff's own testimony . . . . I am not satisfied that the plaintiff's own
testimony is substantial enough to meet the burden the plaintiff must meet to defeat the
defendant's motion for summary judgment).
In Mitchell v. Torrence Cablevision USA, Inc., 806 So. 2d 1254 (Ala. Civ. App. 2000)
the court held that the plaintiffs own testimony did not present substantial evidence that she
exercised reasonable care when she tripped and fell over a coaxial cable in her yard. 806 So. 2d
8Plaintiff also has the burden of coming forward with substantial evidence to rebut Defendants prima facie
evidence at summary judgment.
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at 1259. The court found the record devoid of any evidence supporting the plaintiffs claim that
she exercised reasonable care. Id.
As shown above, it is not uncommon that a partys own testimony does not rise to the
level of substantial evidence in order to defeat a partys properly supported motion for
summary judgment, especially when the partys affidavit merely parrots the allegations
contained in the Complaint.9 See Walsh v. Douglas where the Court held that a summary
judgment against a nonmovant was proper because the nonmovant's own testimony was
unsupported and directly conflicted with testimony of the movant and other witnesses. Walsh v.
Douglas, supra(citingHurst v. Alabama Power Co., 675 So.2d 397, 400 (Ala.1996)).
That is exactly the situation that exists in the case sub judice. There is no corroborating
evidence to support the naked allegations of an obviously biased Plaintiff. When an objective
evaluation is conducted on these facts, one has to be impressed with the lack of weight and
quality surrounding Plaintiffs rendition of the facts of this case vis--vis the facts as described
byallof the eye witnesses. Significantly, every witness to this event says they are friends with
both Plaintiff and Defendant. All say, in some form or the other, that Plaintiff was drunk, out of
control, aggressive, insulting, rude and threatening. All describe the altercation in the same way:
a Facebook posting; a demand to take it down; it is taken down; Plaintiff is told and shown it has
been taken down; Plaintiff does not return to the other room; Plaintiff continues to yell at
Defendant getting within inches of Defendants face; Defendant pushes Plaintiff away from her
face; in response to the push-away by Defendant, Plaintiff begins choking Defendant; Defendant
strikes at Plaintiff landing one hit; the altercation from that point is wild swinging, pushing,
9As reported inEx ParteKenneth P. Quinlan, 922 So. 2d 914 (Ala. 2005), it can be enough so long as the
Complaint is more than conclusionary and the affidavit shows sufficient facts on firsthand knowledge, and otherwise
rises to the substantial evidence level.
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scratching, and hair pulling, all done by both parties; the fight ended in a draw with no one
suffering serious injuries.
Momentarily setting aside Plaintiffs motive for filing this suit, her embellished, biased,
stretched, self-serving testimony amounts to no more than fiction. The Plaintiffs facts were
made up in hopes the Defendant (rather her family) would not let the mention of these potentially
embarrassing allegations see the light of day, appear on the broadcasters script or become part
of the printers ink. Now that they have, the light cast on Plaintiffs false allegations (illuminated
by the truth as spoken by each witness) makes them disappear like a magicians ink. When our
Appellate Courts speak in terms of substantial evidence being evidence of such weight and
quality necessary to defeat summary judgment, it is no coincidence they marry the words
genuine with issue, material with fact, and reasonably with infer.
Yes, Plaintiff offers her testimony as evidence in an attempt to prop-up her claim. But
does her unsupported testimony rise to the level that creates a genuine issue of a material fact?
And most importantly, is her evidence substantial? Is it the type evidence that is of such weight
and qualitythat fair-minded jurors in the exercise of impartial judgment can reasonablyinfer the
existence of the fact sought to be proved? Her facts, which she seeks to show solely by her
own testimony, are noticeably void of Kristen Saban offering to touch her in an intentional,
unlawful, rude or angry manner to such an extent that Plaintiff had a well-founded fear of an
imminent battery. Nowhere in her deposition does Plaintiff recount any type of threat made by
Kristen Saban. The most she can come up with is a lame Facebook posting of Nobody likes
Sarah, yay! Plaintiff does not even attempt to describe an offer from Kristen Saban to harm her
in any way, much less in an intentional, rude or angry manner. Plaintiff made such an overture
to Defendant, but Defendant never made one to Plaintiff. Accordingly, Plaintiff could not have
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reasonably been placed in fear of a battery. As direct evidence she did not experience fear,
Plaintiff charged Defendants locked room with no consideration of fear. On the contrary, she
was mad, hostile and ready to battle. Moreover, her uncorroborated testimony omits the very
core element of an assault - an offer to touch Plaintiff, a threat, something that puts fear in the
Plaintiff. An assault this was not.
Even though Plaintiff was the assaulter, Plaintiff could attempt to assert that Defendants
physical response somehow offended the rules of fair play and teetered over into the area of
excessive force. Stated differently, Plaintiff could say Defendant used more force than was
necessary to defend herself. Plaintiff could attempt to do this by trying to establish her
unsupported conclusions such as Defendant beatme, as she states in her Complaint, or this
paraphrased version from her deposition of how she was struck several times, yet only held her
arms up in a defensive posture, never taking a swing at Kristen. (Grimes, Dep. pp. 164-167).
However, Plaintiff admits to being intoxicated, admits to shouting at Defendant while pounding
on Defendants locked door demanding entry or else, then moving her face and body to within
inches of Defendants face. When Defendant justifiably pushed Plaintiff away, Plaintiff
retaliated by attempting to strangle Defendant with her bare hands.
Simply stated, her fairytale story defies common sense. What juror, using impartial
judgment would reasonably infer the existence of that fact - that she never swung at or hit the
Defendant - even without considering all the direct evidence from all witnesses to the contrary?
To do so, the juror would have to conclude that this drunk, belligerent, threatening Plaintiff
suddenly morphed into a passive victim, who rope-a-doped while Defendant beat her with
numerous blows to the head. The obvious answer is this - none would. On the other hand, if
those same jurors believed that both parties hit, pulled, pushed, and scratched, and both received
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expected minor injuries from that type affray, then Defendant did not exceed the expected,
reasonable amount of force applied back to Plaintiff.
Equally persuasive is this analysis: even if a reasonable juror somehow ignored his life
experiences and common sense and weighed the evidence on this issue (the amount of self-
defense used by Defendant), he or she would be left, on the one hand, with the naked,
unsupported version from a Plaintiff motivated by the hope of hush-money from Kristen Sabans
parents, and on the other hand, with every eyewitness, each in close proximity to the event, each
friends with both parties, each telling it exactly opposite from Plaintiff. Every witness said it was
Plaintiff, not Defendant, that issued threats, started the fight, and then complained that it might
interfere with her already-pending lawsuit in Florida for the same type injuries she so needed to
document. They all say the fight was a draw, a tie, with neither landing punches and both
using the same fighting techniques: pushing, pulling, scratching and hair-pulling. Plaintiffs
version of the facts is simply not of the weight and quality to be considered substantial
evidence. This case is due to be summarily ordered out of court.
V. CONCLUSION.
What does it mean when our Appellate Courts opine that evidence must be of such
weight and quality to create a reasonable inference of a fact? Obviously, not any evidence will
do. The evidence has to be adequate to support a conclusion when viewed by a reasonable
mind.10
To be of such weight, the evidence must be persuasive in comparison with other
evidence.11
To be of such quality, the evidence must have a particular character or property,
often essential for a particular result.12
10Blacks Law Dictionary 580 (9th ed. 2009).11Id.at 1588.
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How can any reasonable person (juror) view Plaintiffs evidence and be persuaded by
its weight and quality that Defendant assaulted and battered Plaintiff? Even by Plaintiffs story,
Defendant never threatened to do anything to Plaintiff, much less be violent towards her.
Plaintiff is left clinging to a hope that the struggle between the parties somehow
constituted a battery on the Plaintiff. The problem with that hope are all the admissions Plaintiff
made concerning the events leading up to the first touching. Plaintiff admits advancing to the
Defendant; she admits pounding on Defendants door demanding entry; she admits the event
which made her angrily approach Defendant had been remedied (Facebook post removed); she
admits then moving towards Defendant and getting pretty close to Defendants face, still
issuing threats. She says Defendant pushed her away. Justified? If so, the case is over, assuming
Defendant did not use excessive force in defending herself from Plaintiffs assault and battery on
her.
First, all eye witnesses say Plaintiff got very close to Defendants face within inches.
Significantly, Plaintiff does not deny this. Much like the patron who will admit to two beers
when pulled over for driving intoxicated, Plaintiff says she does not remember, but it was pretty
close and less than an arms length. On a college girl that is around twenty inches measuring
from the upper torso. When someone is threatening you and mad, that is way too close prevent
the other person from fearfully reacting. Defendant does react to this situation by pushing
Plaintiff back. What other reasonable option did she have? She was in her own bedroom making
it impossible to retreat. There is no dispute about what happened next Plaintiff grabbed
Defendants throat. Defendant pushed Plaintiff and swang at Plaintiff, and the cat fight began.
Plaintiff does not claim Defendant used any weapon or even object to battle her. Nor does she
say Defendant got her down on the ground. Where is the excessive force by Defendant? Plaintiff
12Id.at 1255.
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admits they got into a physical fight; fights are physical. Defendant fought back swinging,
scratching, pulling. Plaintiff even admits to scratching and hair pulling. She just denies throwing
any punches. There it is - the point of departure on the facts of the fight. The Plaintiff says she
did not throw any punches. She says she only held her arms up to keep from getting hit. The
Defendant says Plaintiff did throw punches. Hannah Muncher and McKinnon Moultrie all say
Plaintiff threw punches. Common sense says Plaintiff threw punches. The circumstances say
Plaintiff threw punches. So could a reasonable person he persuaded that Plaintiff did not throw a
punch in this melee? Is Plaintiff credible? We know she is biased. We know she was intoxicated.
Is this singular proffer of evidence of the weight and quality that amounts to substantial evidence
and able to defeat summary judgment? The question is rhetorical.
In summary, the undisputed facts show that: 1) Plaintiff Sarah Grimes was the initial
aggressor who forced Defendant to act in self-defense; 2) Defendant did not provoke the
difficulties; 3) Defendant did not fight willingly but had to apply reasonable force to repel the
attacks by Plaintiff; 4) Ironically, it was Plaintiff Sarah Grimes who assaulted and battered the
Defendant, 5.) Kristen Saban was forced to act in self-defense and she did so in a reasonable
manner.
Because Plaintiff Sarah Grimes was the initial aggressor who initiated the altercations,
forced Defendant to act in self-defense, assaulted and battered Defendant, Plaintiff cannot
recover in this suit as a matter of law.
THEREFORE, THESE PREMISES CONSIDERED, Defendant Kristen Saban
respectfully asks this Honorable Court to enter an order: 1) granting Defendants Motion for
Summary Judgment against Plaintiff on all claims; and 2) granting Defendant such further relief
as the Court deems just and proper.
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Respectfully submitted,
/s/Robert F. Prince (PRI-011)
/s/Joshua P. Hayes (HAY-059)
Prince, Glover & Hayes
1 Cypress Point701 Rice Mine Road North
Tuscaloosa, Alabama 35406
Phone: (205) 345-1234Fax: (205) 752-6313
Email: [email protected]
CERTIFICATE OF SERVICE
I hereby certify that the foregoing document filed through the Alabama Judicial System
will be sent electronically to the registered participants as identified on the Notice of Electronic
Filing and paper copies will be sent to those indicated as non-registered participants.
Stephen A. Strickland, Esquire
This the 12th
day of December, 2013.
/s/Robert F. Prince
Of Counsel