Van Camp v. Mcafoos

156 N.W.2d 878 (1968)

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Nature of the Case

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Facts

Van Camp (P) sued McAfoos (D) a three-year-old for running his tricycle into P's Achilles' tendon and injuring it. This occurred while P was walking on a public sidewalk. The injury needed surgery to fix. D moved to have the complaint dismissed, as it did not state an action in either negligence or intentional tort. That motion was granted, and P appealed. P states her petition contains the following ultimate facts (1) she was rightfully using the public sidewalk (and thus had a right to the reasonably free use thereof and to remain uninjured during such use), (2) D used his tricycle on the public sidewalk (and thus had a duty to use the same without injurious interference with others), (3) surprise intrusion of the tricycle into the right rear ankle of P (thus interfering with P's right and stating D activated the mechanism causing the injury) and (4) damage resulted from the intrusion. P stands firmly on the proposition that invasion of her person is in itself a wrong and she need plead no more.