Gouger v. Hardtke
In Gouger v. Hardtke, 167 Wis. 2d 504, 482 N.W.2d 84 (1992), two high school students where hassling and teasing one another in a welding shop class. See id. at 508.
At one point, Gouger threw a piece of soapstone at Hardtke and struck him in the head. Hardtke threw it back, striking Gouger in the eye and damaging his cornea. More than two years later, Gouger filed a personal injury action against Hardtke, alleging Hardtke had negligently injured Gouger.
Hardtke answered the complaint with an assertion that the tort was actually an intentional one. See id. Hardtke then moved for summary judgment on grounds that the action was barred by the shorter statute of limitations that governs intentional torts. See id. at 509.
The trial court granted summary judgment, concluding that as a matter of law, Hardtke's conduct in throwing the soapstone was "substantially certain" to result in some injury, and that the court could infer Hardtke's intent to injure as a matter of law. See Gouger, 167 Wis. 2d at 509-10.
P13. On appeal, the Court concluded that the facts in Gouger's case did not warrant inferring as a matter of law that Hardtke intended to injure Gouger. Gouger, 167 Wis. 2d at 512-15.
The "throwing of a piece of soapstone at another person, even with the intent of hitting that person, is not so substantially certain to cause injury that a court may infer an intent to injure." Id. at 514.
The court observed:
The court must consider whether the contact or result itself was substantially certain to occur. It cannot be said that there was a substantial certainty that Hardtke would hit Gouger with the soapstone at all. While Hardtke swears he intended to hit Gouger, the record indicates that he was throwing a rather small object ... at a target approximately twenty feet away. ...
It must be noted that the magnitude of potential injury is not dispositive. A substantial certainty of any injury, great or small, may warrant inferring intent to injure as a matter of law. We do not hold that striking another with a thrown piece of soapstone is not harmful. However, neither can it be said that striking another with such an object is per se harmful. The certainty of injury from such conduct is a question of fact. Id. at 515.