## Facts

- Barbara Baldinger (age 4), by a guardian ad litem, sued Allan Banks (age 6), by a guardian ad litem, for injuries allegedly caused when he pushed her.
- The incident occurred on a neighborhood lawn where a group of boys were playing “iron tag.”
- Barbara walked to the lawn but, based on credited proof, was not participating in the game.
- An argument arose between Barbara and another boy; Allan stated, “I’ll take care of Barbara,” and then pushed her hard enough to cause her to fall.
- Barbara fractured her right elbow, requiring unsuccessful closed reduction, then open reduction and insertion of a Kirschner wire.
- The injury left a large permanent postoperative scar and a slight deformity of the right arm.
- Barbara’s father asserted a derivative claim for medical expenses and loss of services.
- At trial, the negligence claim was dismissed at the close of plaintiffs’ case, and the claim against the parents was discontinued; the case proceeded solely on assault and battery against Allan.

## Issues

1. Whether a six-year-old who intentionally makes an offensive bodily contact is liable for battery when serious injury results, even without intent to cause bodily harm or foresee the injury.
2. Whether the child had sufficient capacity to form the intent required for battery.

## Decision

- The court denied the defendant’s motion to dismiss the assault and battery claim.
- The court found the infant defendant liable for battery.
- The court determined that the defendant intended to cause an offensive bodily contact and knew the act was offensive.
- The court held the push was the proximate cause of the plaintiff’s fall and resulting injuries.
- Judgment was entered for the child plaintiff on her injury claim and for her father on his derivative claim.

## Legal Principles

- Battery requires intent to cause a harmful or offensive bodily contact; intent to cause physical injury is not required.
- A defendant who intends an offensive contact is liable for injuries proximately caused by that contact even if the specific injury was not intended or foreseeable.
- Minors may be liable for intentional torts if they have the capacity to understand the offensiveness of the contact and to intend the contact.

## Conclusion

The court imposed battery liability on a six-year-old because the evidence showed he intentionally made an offensive contact and had the capacity to know it was offensive; lack of intent to injure and lack of foreseeability of the harm did not bar recovery where the injury was proximately caused by the intentional push.


Baldinger v. Banks, 201 N.Y.S.2d 629 (Sup. Ct. Kings Cnty. 1960)