Falk v. City of Whitewater

Decision Date01 October 1974
Docket NumberNo. 226,226
Citation65 Wis.2d 83,221 N.W.2d 915
PartiesDonald A. FALK, by his gdn. ad litem, et al., Respondent, v. CITY OF WHITEWATER, Defendant, Richard E. Peck, Appellant.
CourtWisconsin Supreme Court

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...

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15 cases
  • Coffey v. City of Milwaukee
    • United States
    • Wisconsin Supreme Court
    • November 30, 1976
    ...causal connection between the conduct and the injury; and (4) an actual loss or damage as a result of the injury. Falk v. Whitewater, 65 Wis.2d 83, 85, 221 N.W.2d 915 (1974); Padilla v. Bydalek, 56 Wis.2d 772, 776, 203 N.W.2d 15 On the face of the complaint and cross-complaint, it is readil......
  • Robinson by Robinson v. Mount Sinai Medical Center
    • United States
    • Wisconsin Supreme Court
    • April 1, 1987
    ...or otherwise, create or concede an affirmative defense fatal to its validity." (Footnote omitted.) See, also, Falk v. Whitewater, 65 Wis.2d 83, 87, 221 N.W.2d 915 (1974). The statute of limitations is an affirmative defense, Section 802.02(3), Stats., 10 which Defendant bears the burden of ......
  • Rockweit by Donohue v. Senecal
    • United States
    • Wisconsin Supreme Court
    • September 6, 1995
    ...a result of the injury. Coffey v. City of Milwaukee, 74 Wis.2d 526, 531, 247 N.W.2d 132, 135 (1976) (citing Falk v. City of Whitewater, 65 Wis.2d 83, 85, 221 N.W.2d 915, 916 (1974)). In Olson v. Ratzel, 89 Wis.2d 227, 251-52, 278 N.W.2d 238, 250 (Ct.App.1979), the court articulated Where th......
  • Thomas v. Benchmark Ins. Co.
    • United States
    • Kansas Supreme Court
    • March 28, 2008
    ...Expectations: A Primer of These (and Some Other) Insurance-Law Concepts, 2003 Utah L.Rev. 831, 846-47 (2003). See Falk v. Whitewater, 65 Wis.2d 83, 221 N.W.2d 915 (1974) (Almost all negligent conduct is composed of individual intentional components.). Accordingly, a distinction is drawn bet......
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