Walker v. Kelly - 6 Conn. Cir. Ct. 715, 314 A.2d 785 (1973)

Rule:

Ordinarily, tort liability attaches regardless of age where the nature of the act is such that children of a like age would realize its injurious consequences. However, where a tort requires a particular state of mind, and an infant because of his age or mental capacity, is incapable of forming such state of mind, he cannot be found guilty of the tort. Accordingly, although an infant of quite tender years may be held liable where the only intention necessary to the commission of a tort is the intention to perform the physical act in question such an infant cannot be held liable where malice is the gist of the tort and he is too young to formulate the necessary malicious intention. The statutory requirement in Conn. Gen. Stat. § 52-572 is that the act must be done "wilfully or maliciously" if recovery is to be successful. A wilful or malicious injury is one caused by design. Willfulness and malice alike import intent. Its characteristic element is the design to injure, either actually entertained or to be implied from the conduct and circumstances. Willfulness and malice import intent. Intent is a question of fact, the determination of which is not reviewable unless the conclusion drawn by the trier is one which could not reasonably be drawn.

Facts:

The plaintiff, on behalf of himself and his minor son, Michael Walker, brought the present action under Conn. Gen. Stat. § 52-572 against the defendants, parents of Sharon Kelly, their minor daughter. The plaintiff alleged that Sharon willfully and maliciously assaulted Michael, causing a laceration over his right eye. The defendants in their answer denied the alleged assault and in a special defense alleged that Sharon was five years of age and incapable of acting deliberately, willfully and maliciously. The court concluded that (1) Sharon did not intend to strike Michael; (2) Sharon was too young and immature to appreciate the risk involved in throwing a rock at Michael's bicycle; (3) Michael's injury was not inflicted willfully or maliciously. The plaintiff alleged error in the failure to find intentional conduct. 

Issue:

Could a five-year old child be held liable for willful and malicious conduct under Conn. Gen. Stat. § 52-572? 

Answer:

No.

Conclusion:

The appellate court affirmed the finding of the trial court. While Sharon’s testimony was conflicting on whether she intended to hit Michael, a credibility determination was for the trial court, which would not be reversed on appeal. The court averred that a young child could not be held liable for malice although he could be held liable for a physical act itself. Thus, because the statute required willful and malicious conduct, Sharon was too young to have such a mental state. That conclusion in turn led to a rejection of the plaintiff’s final argument. Sharon did not act in a willful and malicious manner.