This piece is a continuation from my torts reading and lecture yesterday. We spent some time focusing on Garrett v. Dailey, Wagner v. State, and Ranson v. Kitner. However, the lecture yesterday only discussed Garratt and today will finish the other cases I had read. Additionally, today we will cover McGuire v. Almy, and Talmage v. Smith to continue our discussion of intentional torts.

Reading Notes

McGuire v. Almy

Supreme Judicial Court of Massachusetts, 1937. 297 Mass. 323, 8 N.E.3d 760.


Legal Question

How liable is an insane person for torts?


Yes, an insane person is liable for torts when they have intent.


For an insane person to have liability from intent, they need to:

  1. entertain the idea of intent (and be capable to do so)
  2. and Entertained it in fact (acted upon that intent)


Plaintiff was a nurse. Defendant was an insane patient. Plaintiff had taken care of patient for several months, slept in a next door room, and would lock the patient in the patient’s room. One day, she woke up while the patient was violent and breaking furniture. She entered the room to remove the broken objects so the defendant wouldn’t hurt herself and the defendant struck. The court is now asked to determine the liability of an insane person.


The court says why you should give liability to insane people. They make four points that reflect the purpose of torts in the first place. 1. Imposing liability tends to make watchful parties more careful. 2. If an insane person can pay for their support, they should also pay for their liability. 3. For those defendants who have the wealth, they should need to pay for their damages so the victim doesn’t bear the burden unaided. 4. Finally, the courts are averse to reviewing the mental capacity of insane people.

So, the court imposes a rule similar to the rule of children. If they entertain the idea of intent and carry out that action, they can be found liable for a tort.

Why should we care?

Insane people are treated similar to children legally. They fall under similar rules and standard and are liable for their actions.

Talmage v. Smith

Supreme Court of Michigan, 1894. 101 Mich. 370, 59 N.W. 656.


Plaintiff is Talmage. Smith is the defendant.

Legal Question

If the tort occurs against a party for which it was not intended, does that party still have a claim?




The fact that the injury results from “another other than was intended was does not relieve the defendant from responsibility.”


The plaintiff went to his shed and found several boys upon it. He told them to get down, threw a stick at one of them, missed, and struck another boy (apparently out of sight) partially blinding him. When reading the instructions, the judge gave 3 scenarios:

  1. If the defendant threw the stick intending to frighten Smith (the targeted boy), the plaintiff (Talmage) could not recover.
  2. If the defendant threw the stick intending to hit one of the boys, the plaintiff could not recover if the force was reasonable and not excessive.
  3. However, if the defendant threw the stick, intending to hit Smith, but the force was excessive, the act was unlawful and the plaintiff could recover.

Jury found a verdict in favor of the plaintiff.


The court sees nothing wrong with the analysis of the trial court. The intention of the defendant was to hit somebody and to inflict injury upon someone. So, he is liable for the action.

Additional Notes

We begin by looking at Wagner v. State, Wagner first sued the state instead of Mr. Giese because Mr. Giese was probably not a “judgement worthy” defendant. However, the state is immune to battery suits so they want the court to give a battery ruling. Wagners want a negligent ruling.

Why there was immunity

Going back to England, the king set up courts, but didn’t want anyone to sue the king. So, there was sovereign immunity. You could not sue unless you had consent to sue. When common law came over to the states, many jurisdictions kept that sovereign immunity. Therefore, there are certain torts that you can’t sue a state over.

Intent in Wagner

So, the plaintiff wants to show that there isn’t battery. They say that he was not even capable of having the intent to commit the act. Therefore, it can’t be battery (because intent in necessary to determine battery).

There are two parts of this rule. He has the intent to make contact, but no intent to cause harm or offend (even though it does). This concept is called “dual intent”.

We want to explore the interest of both the offending party and the offended party. For the offender, we want to encourage good actions. However, we want to protect the interest of the offended and protect them from harm. For the court to find intent, the action must be offensive to a reasonable person.

The majority of the time, the court will say if the offender intended contact and that contact caused harm, they would be guilty of an intentional tort. On the other had, if the offended intended contact, but only offended (no harm) the offendee, the court may be more lenient.


In Ranson v. Kitner we learn more about a mistake. A mistake is where you intended to do what you acted to do (you shoot at an animal, you hope to hit the animal) but you were mistaken of the authority you had to perform that act.

Transferable Intent

When the intent by party A designed for party B but committed a tort against party C.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

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Categories: 1L Fall, Torts

Will Laursen

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