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Walker v. Kelly


    Citation. Walker v. Kelly, 6 Conn. Cir. Ct. 715 (Conn. Cir. Ct. Apr. 27, 1973)

    Brief Fact Summary. Plaintiffs appealed a judgment where the trial court found no willful and malicious intent on the part of a five-year-old who threw a rock that struck Plaintiffs’ minor child causing injury.

    Synopsis of Rule of Law. When a tort requires a particular state of mind, and an infant because of his age or mental capacity, is incapable of forming such a state of mind, he cannot be found guilty of the tort.

    Facts. Plaintiffs brought an action in connection with an incident when Sharon Kelly, the Defendant’s daughter, threw a rock at the son causing a laceration on his forehead. There was some testimony suggesting that the son was attempting to hit Kelly with a bicycle, but Kelly testified that she had no such intention. On appeal, Plaintiff claimed error in the court’s refusal to find intentional conduct, contending that a five-year-old could be held responsible for her conduct. He contended further that the daughter acted willfully and maliciously thus fulfilling the requirements of the statute.

    Issue. Were the actions of a five year-old child willful and malicious thus fulfilling the statutory requirements for a claim of assault?

    Held. The appellate court upheld the judgment in favor of Defendants, as it concurred in the trial court finding that the child did not act with willful and malicious intent.
    Concurrence. The concurring justice specifically wished to enter into the record a clarification of an incorrect statement of law, deemed as overly general, regarding reasonable expectations concerning the “standard(s) of conduct and maturity” of children. Absent a specific statute, a court must hold that such children may be held liable if, after an analysis of the totality of circumstances, they are judged to have formed the requisite state of mind for the tort in question.

    Discussion. With regard to young children, when a tort requires a particular state of mind it must first be determined that the child in question is capable of forming such a state of mind. Courts recognize that young children are often incapable of forming the requisite malicious intent, and thus cannot be found guilty of the tort. The court employs a useful maxim here: “A willful or malicious injury is one caused by design.” A court must then consider the surrounding circumstances, including the child’s age, experience and mental capacity to determine whether such a state of mind can exist. Absent such a finding, the child cannot be held liable.


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