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LaForte v. Bandoli11/7/2000
regardless of the insured's claimed intent, when the insured's intentional act is the sexual assault or molestation of a minor of very tender years. See Loveridge, 161 Wis. 2d at 170. In Raby v. Moe, 153 Wis. 2d 101, 114-15, 450 N.W.2d 452 (1990), the court held that some type of bodily injury is so substantially likely to occur during the commission of an armed robbery that the law will infer an intent to injure on behalf of the insured actor without regard to his claimed intent. In Loveridge, however, our supreme court clarified Raby, holding that a court cannot infer intent to injure as a matter of law merely because the insured's intentional act violated the criminal law. See Loveridge, 161 Wis. 2d at 171.
. Unlike the facts in N.N., K.A.G., and Raby, where it was substantially likely that harm would result from certain intentional conduct, it was not sufficiently likely that Bandoli would harm LaForte when he threw the glass at least seven feet across the bar such that we could infer intent as a matter of law. Our conclusion is consistent with Gouger v. Hardtke, 167 Wis. 2d 504, 514-15, 482 N.W.2d 84 (1992), where our supreme court examined similar facts and concluded that intent could not be inferred as a matter of law.
. In Gouger, 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 id. at 509-10.
. On appeal, our supreme court examined Loveridge, Raby, N.N. and K.A.G. and 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:
he 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 (citation omitted). Just as the court in Gouger could not infer intent as a matter of law, we do not believe that even the facts that are undisputed in this case would allow such an inference. Whether Bandoli intended to injure
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