Van Camp v. McAfoos
Facts
Van Camp (P) brought this personal injury suit against McAfoos (D), a three year old, for running into her with his tricycle on a public sidewalk. Van Camp sustained injury to her Achilles’ tendon and required surgery.
McAfoos moved to have the complaint dismissed, as it did not state an action in either negligence or intentional tort. That motion was granted and Van Camp appealed.
Van Camp asserts that her petition contains the following ultimate facts:
- she was rightfully using the public sidewalk and had a right to the reasonably free use thereof and to remain uninjured during such use;
- McAfoos used his tricycle on the public sidewalk and had a duty to use the same without injurious interference with others;
- surprise intrusion of the tricycle into her rear ankle thereby interfering with her right; and
- damage resulted from the intrusion.
Van Camp stands firmly on the proposition that invasion of her person is in itself a wrong and she need plead no more.
Issue
- Must a pleader allege ultimate facts from which the fact finder can conclude the essential elements of the cause are present?
Holding and Rule of Law
- Yes. A pleader must allege ultimate facts from which the fact finder can conclude the essential elements of the cause are present.
A petition must state whether it is at law or in equity, the facts constituting the cause or causes of action asserted, the relief demanded, and, if for money, the amount thereof. In order to plead a cause of action the pleader must allege ultimate facts from which the fact finder can conclude the essential elements of the cause are present.
We agree the conclusion itself need not necessarily be pled if the ultimate facts are contained in the pleading. There are no ultimate facts giving rise to the concept of wrongful action are pled. Liability will not be imposed for use of a tricycle on a public sidewalk without a showing (and thus a pleading) of some fault. Unless and until we are ready to recognize liability without fault for otherwise innocent childish actions, fault must be discernible in the pleading and in proof. No statute or ordinance is cited prohibiting use of a tricycle on a public sidewalk. Intentionally wrongful or negligently wrongful use of the tricycle is neither pled nor can it be made out from the bare allegation that McAfoos operated a tricycle on said public sidewalk and drove the tricycle into the rear of the plaintiff without warning.
A tort is sometimes defined as a wrong independent of contract, or as a breach of duty which the law, as distinguished from a mere contract, has imposed. Generally speaking, a tort is a wrong, and a tortious act is a wrongful act. A tortious act has also been defined as the commission or omission of an act by one, without right, whereby another receives some injury, directly or indirectly, in person, property, or reputation. The word ‘tortious’ is used throughout the Restatement to denote the fact that conduct whether of act or omission is of such a character as to subject the actor to liability under the principles of the law of torts.
A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent (a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such control.
Van Camp failed to allege any facts indicating the parents knew or should have known that McAfoos was prone to use his tricycle in an unusual, intentionally harmful or other wrongful manner. The universal rule seems to require a propensity on the part of the child to act wrongfully and facts indicating the parents knew or should have known of such propensity. Neither essential element is pleaded by Van Camp.
Disposition
Affirmed.