Baldinger v. Banks

• Decision Date: 14 April 1960
• Citation: 201 N.Y.S.2d 629,26 Misc.2d 1086
• Parties: Barbara Jane BALDINGER an infant under the age of fourteen years, by her guardian ad litem Stanley Baldinger, and Stanley Baldinger, v. Allan BANKS, an infant under the age of fourteen years, by his Guardian ad Litem Mildred Banks, Mildred Banks and Lawrence Banks.
• Court: New York Supreme Court

Page 629

201 N.Y.S.2d 629

26 Misc.2d 1086

Barbara Jane BALDINGER an infant under the age of fourteen years, by her guardian ad litem Stanley Baldinger and Stanley Baldinger, v. Allan BANKS, an infant under the age of fourteen years, by his Guardian ad Litem Mildred Banks, Mildred Banks and Lawrence Banks.

Supreme Court, Trial Term, Kings County, Part VI.

April 14, 1960.

Marvin G. Florman, New York City, for plaintiffs.

Bernard Helfenstein, by Isadore Halpern, Brooklyn, for defendants.

EDWARD G. BAKER, Justice.

Plaintiff, an infant, brings this action by her guardian ad litem to recover damages for personal injuries alleged to have been sustained by her as a result of having been pushed or shoved by the infant defendant. Her father asserts a claim for medical expenses and loss of services.

On the date of the incident which is the basis of the claims the infant parties were four and six years of age, respectively.

The infant defendant was one of a group of neighborhood boys who, on the day of the occurrence, were engaged in a game of 'iron tag' in and about the lawn area of one of the homes in the community. At about 4 p. m., the infant plaintiff walked from her home nearby to the lawn where the boys were playing. The credible evidence supports the claim that she was not a participant in the game.

Shortly after her arrival, an argument ensued between the infant plaintiff and one of the boys. The defendant said 'I'll take care of Barbara' whereupon he pushed her with force sufficient to cause her to fall to the ground. It is clear that the defendant had the capacity to know and did, in fact, know that his act was offensive.

The fall resulted in a serious injury. Plaintiff sustained a fracture of the right elbow. A closed reduction was attempted but was unsuccessful. An open reduction of the fracture was accomplished and a Kirschner wire inserted. There is a large disfiguring post-operative scar which is obviously permanent, and there is an obvious, though slight deformity of the right arm.

The complaint stated three causes of action. The second cause, based upon alleged negligence was dismissed, on defendants' motion, at the close of plaintiffs' case. The third, asserted against the child and his parents was discontinued at the opening of the trial. The trial proceeded and was concluded upon the first cause of action, for an alleged assault and battery. Decision on defendants' motion to dismiss this cause, made at the close of the proof, was reserved. That motion is now denied.

Defendant's intent to inflict upon plaintiff an offensive bodily contact, known to him to be offensive, has been established by the fair weight of the credible evidence. It was his intent to force her to leave the place where the game was in progress. The push, or the force intentionally exerted by him to that end, was the proximate cause of plaintiff's fall and the resulting injuries. For these...