Falk v. City of Whitewater

• Decision Date: 01 October 1974
• Docket Number: No. 226,226
• Citation: 65 Wis.2d 83,221 N.W.2d 915
• Parties: Donald A. FALK, by his gdn. ad litem, et al., Respondent, v. CITY OF WHITEWATER, Defendant, Richard E. Peck, Appellant.
• Court: Wisconsin Supreme Court

Page 915

221 N.W.2d 915

65 Wis.2d 83

Donald A. FALK, by his gdn. ad litem, et al., Respondent, v. CITY OF WHITEWATER, Defendant Richard E. Peck, Appellant.

No. 226.

Supreme Court of Wisconsin.

Oct. 1, 1974.

Godfrey, Neshek, Worth & Howarth, Elkhorn, for appellant.

Phil Elliott, Jr., West Allis, for respondent.

BEILFUSS, Justice.

The issue is--do the facts alleged in the amended complaint state a cause of action for negligence?

The specific contention of appellant Peck on this appeal is that the quoted portions of the complaint do not support a cause of action for negligence 'because the making of a fist in and of itself is an intentional act, and that any further act resulting therefrom is likewise intentionally done.'

The oft-repeated general rule regarding the construction of complaints when challenged by demurrer is that the pleadings:

'. . . are to be liberally construed with a view to substantial justice to the parties and are entitled to all reasonable inferences in favor of the pleadings which can be drawn from the facts pleaded . . . Where this court reviews an order overruling a demurrer made on the ground that the complaint did not state a cause of action, it gives the complaint a liberal construction in favor of stating a cause of action. . . .' Continental Bank & Trust Co. v. Akwa (1973), 58 Wis.2d 376, 384, 206 N.W.2d 174, 179. See also: Padilla v. Bydalek (1973), 56 Wis.2d 772, 203 N.W.2d 15; Walley v. Patake (1956), 271 Wis. 530, 74 N.W.2d 130; Libowitz v. Lake Nursing Home, Inc. (1967), 35 Wis.2d 74, 150 N.W.2d 439, 151 N.W.2d 680.

However, as stated in Jennaro v. Jennaro (1971), 52 Wis.2d 405, 409, 190 N.W.2d 164, 166, '. . . It is to be kept in mind that '(p)leadings are intended to fairly apprise the opposing party of the matters to be tried . . .' . . .'

In order to constitute a cause of action for negligence there must exist: (1) A duty of care on the part of the defendant; (2) a breach of that duty; (3) a causal connection between the conduct and the injury; and (4) actual loss or damage as a result of the injury. Thomas v. Kells (1971), 53 Wis.2d 141, 191 N.W.2d 872.

In light of these general rules, we believe the complaint does state facts sufficient to constitute a cause of action in negligence. In essence, the complaint alleges that the appellant struck the plaintiff Donald A. Falk with his fist, was negligent in so doing, and thereby caused the described injuries and damages. There is no allegation of intent on the part of the defendant, and in view of the rule that all inferences are to be drawn in favor of the pleadings, Continental Bank & Trust Co., supra, this court would be remiss in concluding that an inference of intent must be drawn.

Appellant cites Jennaro v. Jennaro, supra, for the proposition that 'facts are not to be added in the process of giving the pleading a liberal construction.' It is appellant, however, who urges the adding of a fact to the pleading, i.e., an allegation of intent.

The appellant argues that the making of a fist is an intentional act 'and that any further act resulting therefrom is likewise intentional.' Even assuming that the making of a fist is necessarily an intentional act, to reason that the striking of someone with that fist is therefore necessarily likewise intentional is a non sequitur. Almost all negligent conduct is composed of individual intentional components; to constitute an intentional tort, however, the actor must intend the consequences of his acts, or believe that they are substantially certain to follow. Restatement, 1 Torts (2d), p. 15, sec. 8A. While a driver may...