concurring.
I concur in the majority's determination that the trial court did not err in refusing *202Wallace's battery instruction. I do so, however, upon different grounds.
Although, as quoted by the majority, Wallace testified that she slipped when touched by Rosen, during the same eross-examination she also testified as follows:
"Q Now were you pushed?
A And at that time ... [sic]
Q Let me ask you. Did you slip, or were you pushed?
A I was pushed. You can't help but slip when somebody pushes you. It's nothing to grab." Transcript at 127-128.
Additionally, the two other eye-witnesses, Wallace's daughter and the daughter's boy-friend, although perhaps not wholly objective, did testify that Rosen "grabbed" Wallace's arm or shoulder and "turned her around" (Tr. at 41-42, 91), and that when Wallace told Rosen she was a parent not a student, Rosen responded, "I don't care who you are," (Tr. at 91), telling Wallace "to move it," (Tr. at 42).
Although the evidence as to an arguable battery may be minimal at best, I am unwilling to state that as a matter of law, Rosen's touching was not rude, insolent, or angry. Given the fact that Rosen's touching was intentional, and despite the circumstances, it would not be wholly unreasonable for a jury to conclude that the scenario did not equate with the personal contact contemplated in Professors Pros-ser and Keeton's "crowded world."
In my view, and as thoroughly discussed by the majority, the trial court properly rejected the proffered instruction because the last portion, which instructed as to a "recklessly committed" battery, would have been misleading to the jury. The alleged battery here was either an intentional touching in a rude, insolent, or angry manner, or it was no battery at all. In this regard, I respectfully disagree that based upon case authority from a century and more ago,7 a reckless act which results in a touching may constitute an intentional touching. A touching which occurs through recklessness on the part of the actor is simply inconsistent with a touching which is intentional on the part of the actor.
Under Part II, the majority holds that the error, if any, in giving Rosen's incurred risk instruction, was harmless. In doing so, the lead opinion states that "[a] finding by the jury that Wallace was even the slightest bit negligent would have resulted in a verdict for Rosen and IPS." Op. at 200 (emphasis supplied). Judge Robb in her separate opinion states that "[blecause Wallace's cause of action was against a school, comparative negligence does not apply...." Op. at 204 (emphasis supplied). Both opinions in this regard are premised upon the conclusion that the suit falls under the Tort Claims Act. To the extent that the suit was brought against the school as a governmental enti*203ty and against Rosen as an employee of that entity, it is clear that the Tort Claims Act was applicable.
Wallace's complaint alleges that Rosen was in her capacity as a teacher at the time in question and was the agent of the school. It does not, however, specifically, assert that Rosen's alleged assault and battery was committed within the scope of Rosen's employment. In separate counts, the complaint also alleged that IPS was negligent in the employment and continued employment of Rosen, and that the continued employment served to ratify the acts of Rosen. Thus viewing the complaint in the context of Ind.Code § 34-18-3-5 (Burns Code Ed. Supp.2001), proceeding both against Rosen individually and against IPS was not precluded. See Bushong v. Williamson, 760 N.E.2d 1090 (Ind.Ct.App.2001).8
Under the facts as they unfolded at trial, it seems that Rosen was clearly acting within the scope of her employment. See Bushong, supra, (acts of the teacher not clearly shown to be authorized or unauthorized and that therefore, the issue of scope of employment was for the trier of fact). Nevertheless, that scenario merely brings I.C. § §4-13-3-5(c)9 into play. This provision of the statute requires the employer to pay a judgment against the employee when the acts of the latter were within the scope of employment. That burden falls upon the governmental entity whether or not the employee can or cannot be held personally Hable.
Be that as it may, there was not a verdict against either or both of the defendants. For this reason, the various permutations of the Tort Claims Act in situations of this nature are not of determinative consequence.
Subject to the above observations, I otherwise concur.
. In Kline v. Kline, 158 Ind. 602, 64 N.E. 9 (1902), there was no touching, and the court was considering the matter of an "assault" as an attempted battery rather than a battery. In Mercer v. Corbin, 117 Ind. 450, 20 N.E. 132 (1889), the court did indeed find that from a recklessly committed act which results in a touching, the requisite intent for battery may be inferred. In context, the court merely held that from a reckless act resulting in a touching, the requisite intent to cause the harm or injury may be inferred. (To the same effect is Reynolds v. Pierson, 29 Ind.App. 273, 64 N.E. 484 (1902)). Mercer did not go so far as to say that a recklessly committed act may constitute an intentional touching. One might argue that if civil liability may be found for a reckless touching as well as for an intentional or knowing touching, it is a distinction without a difference. Be that as it may, to the extent that the Mercer and Reynolds decisions may be read to equate reckless conduct with intentional conduct, I believe them to be mistaken.
. Insofar as Wallace's complaint alleges an assault and battery, it could be construed as an allegation of criminal conduct within the purview of IC. § 34-13-3-5(b) (under the current version of this statute this provision has been recodified as subsection (c)).
. Under the current version of the statute, this provision has been recodified as subsection (d).