Defendant maintains that the complaint does not sufficiently allege a cause of action for attractive nuisance; and, that its negligence, if any, is superseded by an independent, intervening force.
The plaintiff concedes that the complaint does not state a cause of action for attractive nuisance as that phrase is legally understood, but contends the allegation of attractive nuisance is merely descriptive of a negligent act of the defendant.
When challenged by a demurrer, the complaint is to be given a liberal construction with the view to permit all reasonable inferences to be drawn in favor of finding that a cause of action is stated.
With the allegation of attractive nuisance removed, we find that the complaint alleges merely that the construction site was not barricaded or guarded so as to prevent unauthorized persons from coming onto such area; that the failure to guard was negligence, which resulted in objects being thrown from the construction area down onto respondent's property; that plaintiff was damaged as a result of such negligence.
The complaint is defective in that facts alleging a breach of duty have not been pleaded. The allegation of failure to guard the premises has not been related to a showing of facts and circumstances which would demonstrate that there was a
The ultimate inquiry is whether defendant should have foreseen the reasonable probability of persons coming upon the construction site and committing tortious acts. This is a question of fact.
We consider the matter of intervening force to the extent that such consideration will clarify the negligence question.
"`An intervening force is one which actively operates in producing harm to another after the actor's negligent act or omission has been committed.'" Merlino v. Mutual Service Casualty Ins. Co. (1964), 23 Wis.2d 571, 579, 127 N.W.2d 741.
In Merlino v. Mutual Service Casualty Ins. Co., supra, at page 579, the following statement appears:
"`If the effects of the actor's negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person's innocent, tortious or criminal act is also a substantial factor in bringing about the harm does not protect the actor from liability.'"
In Restatement, 2 Torts, p. 1202, sec. 449, it is said:
"If the realizable likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby."
It is evident that the complaint is inadequate. Plaintiff should have the opportunity to plead over if it determines that
By the Court.—Order reversed. Plaintiff-respondent shall have twenty days from the date our remittitur is received by the clerk of the county court in which to serve an amended complaint, failing therein judgment to be entered dismissing the complaint.