THOMAS v. KELLS

ROBERT W. HANSEN, J.

Putting aside for the moment the question of whether the third-party complaint itself establishes an affirmative defense, it is to be noted that nowhere in this case is it contended that such third-party complaint fails to state a cause of action. It clearly does.

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.1 The third-party complaint, particularly in its paragraph 3,2 does allege a cause of action and does adequately apprise the opposing party of the matters to be tried.3

All this is prologue, necessary prologue, but prologue. For the trial court here sustained the demurrer, holding, that even if the third-party complaint otherwise stated a cause of action, it levelled what it had erected by also establishing an affirmative defense to its allegations. While a complaint need not specifically deny the existence of any and all affirmative defense,4 it can, by inadvertence or otherwise, create or concede an affirmative defense fatal to its validity. Does the third-party complaint here do this?

The trial court appears to have found that it did by finding in it an inescapable conclusion that the accident occurred "in the home" of the parents as well as "in the ordinary course of taking care of children and maintaining a family." That conclusion requires re-examination. The trial court correctly cites Goller v. White5 as abrogating the general parental immunity in negligence cases in Wisconsin. It correctly notes two specific exceptions to the abrogation.6 It states the reason for abrogation of general immunity by this court to be, ". . . primarily because it wanted to take from the parents immunity for any negligence on their part which occurred outside of the home and outside of their ordinary supervision in the exercise of parental authority. . ."

However, we are here required to deal with what the court did, rather than with reasons suggested for the result reached. Parental immunity was abolished in negligence cases in Wisconsin with two specific exceptions. The sole question on this appeal is whether the third-party complaint places this case as to the demurring third-party defendant within the rule or the exceptions to it.

Cases since Goller have dealt with the two exceptions to the ending of parental immunity in negligence actions,7 but neither Goller nor the subsequent decisions have answered all questions about the exact meaning and outer limits of the two exceptions.

As one writer has commented, ". . . many questions are left unanswered and many problems remain in the area of parental immunity. . . ."8 One such is the reference in the second exception to "an exercise of ordinary parental discretion" with respect to the provision of "housing." Does such reference under all circumstances include a basement to attic stairway used in common with other tenants and not under the parents' control? Is it material whether or not the stairway is an only or an alternative method of ingress and egress to the parental premises? Is a rear stairway part of the parental home only as to that portion that leads to the outside door of the duplex? Or, is the portion of the stairway leading to the apartments of other tenants or to the attic also to be included in the definition of parental home or housing? If so, what are the limits, if any, to the "exercise of ordinary parental discretion" in parental permission allowing a three-year-old to proceed down a defective stairway?9 Does the availability of additional routes of ingress or egress narrow or affect the area of parental discretion? Is choosing or continuing to live in a building where it is necessary or convenient to use a defective stairway "an exercise of ordinary parental discretion" with respect to the providing of "housing" for one's child?

The invitation is clear and the temptation strong to deal with these questions in this case. But we are brought up short, at the demurrer stage, by the fact that the third-party complaint and the demurrer to it do not give the essential facts required to determine the applicability of the Goller v. White rule or exceptions.

For example, as to the locale or place of injury, the third-party complaint refers only to the place of injury being ". . upon premises owned by the defendant, Harold C. Kells. . . ." This falls short of the exactitude as to place of injury and completeness of circumstances required to determine whether the Goller rule or exceptions govern. It is true that the amended complaint of the plaintiffs is more specific as to the place of injury.10 However, a demurrer raises only the sufficiency of allegations contained in the pleading demurred to.11 Even if all pleadings could be considered by the trial court in determining if an affirmative defense was clearly established, the broader view would here make no difference because the complaint's allegation as to where the injury was sustained, is, upon information and belief, denied in the answer. If the original complaint were considered, the answer to it would have to be considered. Under either approach and any view of the pleadings, we find that the affirmative defense of coming within the exceptions to the Goller v. White abrogation of parental immunity is not established at the demurrer stage by the third-party complaint or even by all pleadings in this case.

It follows that the demurrer here cannot be sustained and the granting of such demurrer by the trial court must be reversed.

By the Court.—Order reversed.