Brian Dailey (D) who was 5 years and nine months old pulled a chair out from under Ruth Garratt (P) as she began to sit down in the chair. P fell and broke her hip. P alleged that D did this act deliberately. P did not testify as to how she fell but another adult, Naomi Garratt did so. D testified that he picked up the chair and sat down in it, and then noticed that P was about to sit down where the chair had been, and he had tried to replace the chair but due to his small size and lack of dexterity was unable to do so. The trial court found that D did not intend to assault or batter P. Damages were found to be $11,000 just in case the trial court’s ruling on the matter were overturned. P appealed.