Padilla v. Bydalek

Decision Date03 January 1973
Docket NumberNo. 334,334
Citation203 N.W.2d 15,56 Wis.2d 772
PartiesLucio PADILLA, Respondent, v. Frank M. BYDALEK, Appellant.
CourtWisconsin Supreme Court

Theodore W. Harris, Racine, for respondent.


The following issues are raised on this appeal:

1. Does plaintiff's complaint allege sufficient facts to constitute a cause of action in negligence?

2. Assuming that the complaint states a cause of action in negligence, should the trial court have sustained the defendant's demurrer on the grounds that, under the facts alleged, as a matter of public policy, the defendant should not be held liable?


The first four allegations of plaintiff's complaint are essentially devoted to the relationship between the parties and the events prior to the accident. Plaintiff was an adult employee of the defendant when he was asked by the defendant to go pheasant hunting with the defendant and his son. Despite the knowledge that plaintiff had had no experience with or equipment for pheasant hunting and had only been hunting a minimal amount as a boy, defendant convinced plaintiff to accept his invitation, promising to furnish everything needed for the hunt except the license which plaintiff would acquire.

The complaint further alleges that the defendant selected two of his hunting dogs for the hunt, and that he knew the dogs were 'largely untrained, difficult to control, and excitable by nature.' That during the hunt the defendant and his son killed birds, and at the suggestion of the defendant the parties crossed over from defendant's property to that of his son-in-law, Daryl J. Hackbarth, to show Hackbarth the birds. In the process of so showing the birds, defendant's son laid his loaded shotgun on the ground. It was at this time that one of defendant's dogs stepped on the safety and trigger of the shotgun on the ground, causing it to discharge and injure the plaintiff. We do not consider it necessary to set forth the allegations of negligence in detail.

When challenged by demurrer, 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. Wulf v. Rebbun (1964), 25 Wis.2d 499, 502, 131 N.W.2d 303; Superior Plumbing Co. v. Tefs (1965), 27 Wis.2d 434, 134 N.W.2d 430; Walley v. Patake (1956), 271 Wis. 530, 74 N.W.2d 130. This court, in Jennaro v. Jennaro (1971), 52 Wis.2d 405, 409, 190 N.W.2d 164, 166, recently stated:

'The litmus paper by which a complaint, attacked by means of demurrer, is to be tested in Wisconsin is that demurrer fails if the complaint, liberally construed, expressly, or by reasonable inference, states any cause of action. . . .'

In pleading negligence and in setting forth the facts which are alleged to constitute negligence, only ultimate, not evidentiary facts, are to be pleaded; and if the pleading fairly informs the opposite party of what he is called upon to meet by alleging the specific facts which resulted in injury, and there is included a general statement that defendant negligently performed the acts complained of, the pleadings are sufficient. Colton v. Foulkes (1951), 259 Wis. 142, 47 N.W.2d 901; Harte v. Eagle River (1970), 45 Wis.2d 513, 173 N.W.2d 683; Bembinster v. Aero Auto Parts (1959), 7 Wis.2d 54, 95 N.W.2d 778; Weber v. Naas (1933), 212 Wis. 537, 250 N.W. 436. However, a complaint must still allege acts sufficient to show an invasion of some protected interest to state a cause of action. A complaint may fairly inform an opposite party what he is called upon to meet and yet not state a cause of action. Wulf v. Rebbun, supra. Although it is generally said that the determination of negligence is a question for the jury, a court will not submit the issue to the jury where it appears the complaint fails to state a cause of action. Jones v. Pittsburgh Plate Glass Co. (1945), 246 Wis. 462, 17 N.W.2d 562.

Facts from which plaintiff's primary right and defendant's corresponding duty arise, must appear in the statement of facts of the complaint in a personal injury action, together with facts showing a wrong by the defendant. Miller v. Welworth Theatres (1956), 272 Wis. 355, 75 N.W.2d 286. This court, in Thomas v. Kells (1971), 53 Wis.2d 141, 144, 191 N.W.2d 872, 873, stated:

'To constitute a cause of action for negligence there must be: (1) A duty to conform to a certain standard of conduct to protect others against unreasonable risks; (2) a failure to conform to the required standard; (3) a causal connection between the conduct and the injury; and (4) actual loss or damage as a result of the injury. . . .'

The complaint states that defendant knew or had reason to know that his dogs were loose and excitable; that the guns were loaded; that the dogs would be excited by the birds and attracted to the area where loaded guns were present; and that, nevertheless, defendant exhibited the birds. The complaint continues to allege that:

'. . . thereupon, his son, Frank L. Bydalek, laid his gun upon the ground with its muzzle pointing towards plaintiff, which his father, Frank M. Bydalek, knew or reasonably ought to have known was fully loaded and operative and dangerous to plaintiff, and held up and exhibited the birds he had taken upon the hunt for Daryl J. Hackbarth to see, whereupon the defendant, Frank M. Bydalek's dogs, which he had negligently left untied or otherwise restrained, became excited, as defendant, Frank M. Bydalek knew or reasonably should have known they would, and ran across the gun, which Frank L. Bydalek had laid loaded upon the ground, triggering and discharging the same into plaintiff's leg and body, . . ..'

Drawing all reasonable inferences from the facts as alleged, and in giving the pleading a liberal construction, it appears that the defendant attracted his excitable dogs to the area where he knew or should have known there was a loaded shotgun, and that he failed to restrain his dogs when it became apparent to him that a loaded shotgun was lying on the ground with its muzzle pointing toward the plaintiff, and in a position where his dogs could step on it.

Whether plaintiff can prove the facts alleged upon trial is not the issue. Where a case, on appeal before this court is on demurrer, all facts set forth in the pleadings will be taken as true. Brown Deer v. Milwaukee (1956), 274 Wis. 50, 79 N.W.2d 340.

Defendant alleges that the complaint fails to state a cause of action against the defendant because it does not allege facts allowing an inference that harm was reasonably foreseeable as probable from defendant's acts.

Foreseeability is a fundamental element of negligence. 1 In Meihost v. Meihost (1966), 29 Wis.2d 537, 545, 546, 139 N.W.2d 116, 121, this court stated:

'In Wisconsin 'harm must be reasonably foreseen as probable by a person of ordinary prudence under the circumstances, if conduct resulting in such harm is to constitute negligence.' Accordingly, respondent was guilty of common-law negligence if harm, not necessarily the particular harm that actually occurred, could have been reasonably foreseen as probable by a person of ordinary prudence under like circumstances. The mere possibility of harm is insufficient to establish negligence. . . .'

This court has consistently adhered to these principles. 2

The ultimate question, therefore, is whether defendant could have reasonably foreseen probable harm as a result of his lack of control over his dogs. If he could, a duty would arise...

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