The person I meant to hit ducked! What now?

So this article is a bit of fun to discuss a hypothetical situation that seems, often enough, to be real.  Imagine two people arguing with each other.  One of those two people gets upset enough that he or she tries to throw something at the other person.  Either through bad aim or the other person ducking, the thrown projectile--whether a beer bottle, shoe, fist, or other object--instead of making contact with the intended target ends up hitting an uninvolved innocent by-stander.   This scenario is more common that you might expect and I know in my firm we have had this kind of case several times in the circumstance of bar patios and thrown beer bottles.

So, the question I want to address today is what is the legal position of the person who intended to hit a particular victim but unintentionally, or without intent, hit another person and caused them injury.   Does intent matter in a civil context?  Should the person who threw the projectile be liable for the injuries or damages caused regardless of what they meant to do?

The answer, or at least an answer, comes to us from the case of Carnes v. Thompson (1932), 48 S.W. 2d 903.  In that case a farmer was trying to evict a former employee and his wife from a house that was located on the farm property.  The farmer and the former employee became angry and at one

point the farmer threw a pair of pliers that he had handy at the former employee.  The ex-employee, seeing the pliers coming ducked.  The pliers then flew through the air and struck the ex-exmployee's wife who was standing near her husband.  The facts are clear that the farmer did not intend to strike the wife and that he had no desire to cause her harm. In fact the farmer testified that he was never even close enough to the ex-employee to strike him.

The case proceeded to a jury and the finding was ultimately for the wife/plaintiff and the defendant farmer appealed.  The Court in reviewing the facts made this finding and stated this general principle of law.  "That if one person intentionally stirkes at, throws at, or shoots at another, and unintentionally strikes a third person, he is not excused, on the ground that it was a mere accident, but it is an assault and battery of the third person.  The defendant's intention, in such a case, is to strike an unlawful blow, to injure some person by his act, and it is not essential that the injury be to the one intended ... ."

This case is interesting as it deals with the issue of intent and in the context of an intended illegal act it is clear that intent does not matter.  I wonder, if the case might be useful in the context of a "friendly tussle" or rough housing or even a consensual fight between two people.  If in the context of that interaction, something gets thrown or another person is injured when the intended "victim" ducks is there still liability on the part of the person who caused the injury?  Or is it possible that the person who caused the injury could escape liability because it was an accident?  Certainly, I would expect that liability would follow even in such a case but it is interesting that in this precedent that the underlying intention to commit an illegal act factors so prominently in visiting civil liability on the farmer.

Michael K. E. Thiele
Ottawa Lawyers