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.
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.
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. White
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,
As one writer has commented, ". . . many questions are left unanswered and many problems remain in the area of parental immunity. . . ."
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.
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.
FootNotes
"A. She failed to properly supervise and watch over said child so as to prevent his use of said steps under the circumstances there and then subsisting and to otherwise supervise his activities so as to prevent injury to him.
"B. She failed to exercise ordinary care for the safety of said child and to guard him from danger."
". . . many questions are left unanswered and many problems remain in the area of parental immunity. . . ." Robert J. Parins, Goller and Beyond, 40 Wisconsin Bar Bulletin, No. 2 (April, 1967), 48, 51. See also: William E. McCurdy, Torts Between Parent and Child, 5 Villanova L. Rev., No. 4 (Summer, 1960), 521.
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