BEILFUSS, C. J.
The order appealed from denied a motion for summary judgment.
This is an action to recover damages sustained as the result of injuries suffered in a school playground accident. The minor plaintiff, Rosemarie Ceplina, was injured on April 5, 1973, when she was struck in the face with a baseball bat swung by the defendant-appellant, James Pauwels, also a minor. An amended complaint, setting forth two causes of action, was filed on October 17, 1974.
The first cause of action stated a claim in negligence against the South Milwaukee School Board and its liability insurer, the Home Indemnity Company. That claim was based on the alleged negligence of the school board with respect to its supervision of playground activities on the date in question.
The second cause of action stated a claim in negligence against the minor defendant, James Pauwels, and his father's homeowner's liability insurer, Underwriters Insurance Company. That claim was based on the alleged negligence of James Pauwels with respect to his failure to maintain a proper lookout, failure to warn, and failure
All defendants answered denying negligence, and cross-complained for contribution. Subsequently, the defendants James Pauwels and Underwriters Insurance Company filed a motion for summary judgment seeking dismissal of the plaintiffs' claims against them. Attached to and filed in support of that motion were Exhibits A and B representing portions of the deposition testimony of James Pauwels and Rosemarie Ceplina.
An affidavit in opposition to the motion for summary judgment was filed on behalf of the plaintiffs and incorporated the entire adverse examination of the minor parties as well as a statement signed by James Pauwels following the accident. On November 27, 1974, an order was entered denying the motion for summary judgment. The defendants, James Pauwels and Underwriters Insurance Company, appeal from that order.
The issue before us is whether the trial court abused its discretion in denying the motion for summary judgment.
The deposition testimony of Rosemarie Ceplina and James Pauwels indicates that at about 5:30 p.m., on the date in question, the two were teammates in a softball game held on the Lakeview School playground in South Milwaukee. Both were sixth grade students at that school. When their team came to bat, a line was formed along the first base side with James Pauwels third in line and Rosemarie Ceplina fourth. As James Pauwels took his turn at bat he stepped into the batter's box, positioning himself as a left-handed hitter on the first base side of home plate. Rosemarie then became first in line and stepped forward towards home plate. When the first pitch came, James Pauwels swung. As he continued through with his swing the bat struck Rosemarie Ceplina in the face, causing her injuries. James stated that he knew Rosemarie was standing behind him waiting to take her turn at bat. He did not, however, look around to see how far behind him she was before he swung nor was he concerned that she might be too close. Rosemarie conceded that there was nothing unusual about James' swing. She stated that she was not looking at James when he swung but was looking, instead, at the people in the outfield.
This court has held that the existence of a duty and the scope of that duty are questions of law for the court to decide. Where the facts which are alleged to give rise to a duty on the part of a defendant are agreed upon, the question of whether any duty existed is one of law which
"The duty of any person is the obligation of due care to refrain from any act which will cause foreseeable harm to others. . . ."
Here it cannot seriously be contended that the act of swinging a bat did not give rise to a reasonable foreseeable probability of injury to others who might have been standing nearby. This conclusion, of course, does not mean that James Pauwels was negligent. "Negligence" consists of failing to use that degree of care which would be exercised by a reasonable person under the circumstances.
Here the defendants argue that there could be no finding of negligence because the danger of the swinging bat was one which should have been open and obvious to Rosemarie Ceplina. They cite a number of cases concerning the liability of a landowner for injuries resulting to trespassing children from inherently dangerous conditions on his property.
As this court pointed out in the A. E. Investment Case, supra, these cases, dealing as they do with special types of legal relationships, are "out of the mainstream of negligence law in Wisconsin." As such, they are "inappropriate in describing the general duty that an alleged tortfeasor has in the ordinary negligence case." The proposition for which those cases are cited—that a child is bound to appreciate a simple and obvious danger— cannot be doubted. However, the application of that principle as derived from nuisance cases does not fit the facts of this action.
The requirement that Rosemarie Ceplina appreciate the dangers inherent in a swinging bat is, under the circumstances of this "ordinary negligence case," a contributory negligence factor which should be considered in determining whether she failed to exercise ordinary care for her own safety. See, generally, De Groot v. Van Akkeren (1937), 225 Wis. 105, 273 N. W. 725. It does not go, as it does in the attractive nuisance cases, to the defendant's independent duty of care.
It should be pointed out that the trial court did not state reasons supporting its order denying the motion for summary judgment. This court has often encouraged such a practice to facilitate meaningful review.
By the Court.—Order affirmed.