¶1dissenting:
¶2I respectfully dissent because I believe that the majority may have been led to an incorrect result through a misunderstanding of defendant’s argument. The majority states that “[djefendant’s argument, when distilled to its essence, is because he admitted that he committed an intentional act, he cannot be found to be negligent” (emphasis in original) (235 Ill. App. 3d at 47), and that defendant’s admission in his deposition that he intended to punch plaintiff does not transform plaintiff’s allegations into an intentional tort. Additionally, the majority questions why defendant failed to file a motion to strike and/or dismiss and states that a motion for summary judgment should not be used to determine whether plaintiff’s complaint sets forth a cause of action. While I agree with this well-settled rule, it fails to address defendant’s argument here. Defendant has not challenged plaintiff’s complaint for failure to state a cause of action; rather, his focus is upon the failure of the plaintiff to provide evidence which would support the complaint’s specific allegations of negligence. I understand defendant’s position to be that negligence is a theory of action which is separate and distinct from intentional tort and that, although plaintiff has elected to proceed on a specific theory of negligence only, the evidence before the trial court presented no issue of material fact as to whether defendant’s conduct could be characterized as negligent within the allegations of the complaint.
¶3Plaintiff failed to offer any evidence in contradiction of the deposition testimony submitted in support of defendant’s motion for summary judgment. It is well settled that facts contained within affidavits in support of a motion for summary judgment and uncontradicted by other factual evidence are admitted and considered true (Heidelberger v. Jewel Cos. (1974), 57 Ill. 2d 87, 92-93) and that discovery depositions may be utilized in support of a summary judgment motion to the same extent as affidavits. 134 Ill. 2d R. 212(a)(4); Carter v. Dunlop (1985), 138 Ill. App. 3d 58, 63.
¶4It is true, however, that if reasonable persons could draw divergent inferences from the undisputed facts, summary judgment should be denied (Pyne v. Witmer (1989), 129 Ill. 2d 351, 358) and that a court must construe the deposition testimony strictly against the defendant-movant and liberally in favor of the plaintiff and enter summary judgment only when the right of the defendant is free and clear from doubt (Wilder Binding Co. v. Oak Park Trust &; Savings Bank (1990), 135 Ill. 2d 121, 130).
¶5Intent, as defined within the context of tort liability, is not necessarily a hostile intent, or a desire to do any harm; rather, it is an intent to bring about a result which will invade the interests of another in a way that the law will not sanction. (Cowan v. Insurance Co. of North America (1974), 22 Ill. App. 3d 883, 893, citing W. Prosser, Torts §8, at 31 (4th ed. 1971).) Comment b of section 8A of the Restatement (Second) of Torts provides:
“All consequences which the actor desires to bring about are intended …. … If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.” (Restatement (Second) of Torts §8A, Comment 6, at 15 (1965).)
¶6The term “intent” is commonly used “to describe the purpose to bring about stated physical consequences" and is concerned with the consequences of the act. (Emphasis in original.) (W. Keeton, Prosser & Keeton on Torts §8, at 35 (5th ed. 1984).) Motive focuses on the subjective rationale that inspires the act and the intent. W. Keeton, Prosser & Keeton on Torts §8, at 35 (5th ed. 1984).
¶7It is recognized that motive and intent are related states of mind and that confusion sometimes exists as to their precise interaction in the context of tort liability. In analyzing the circumstances of the present incident, however, I conclude that defendant’s inability or failure in his deposition to specifically articulate his reason for striking plaintiff does not provide support for any inference that he acted negligently. Plaintiff’s argument confuses motive with intent. Defendant’s deposition testimony does not evidence his lack of intent; rather, it demonstrates his subjective reasoning, or lack thereof, as to why he engaged in an act of striking plaintiff. Although defendant testified that “it wasn’t something he thought about” and that it was a matter of reflexes, he clearly and unequivocally stated that he struck plaintiff. The only reasonable interpretation of the evidence is that defendant struck out intentionally in response to allegedly being pushed by plaintiff.
¶8Additionally, there is no evidence which suggests an alternative inference that defendant did not know or was substantially uncertain of the consequences of his act of striking plaintiff. Plaintiff has failed to respond to the motion for summary judgment by submitting facts which would raise an alternative inference (see Randle v. Hinckley Parachute Center, Inc. (1986), 141 Ill. App. 3d 660, 661), and he cannot rely upon mere conjecture or surmise as being sufficient to raise a genuine issue of negligence (see Koukoulomatis v. Disco Wheels, Inc. (1984), 127 Ill. App. 3d 95, 101). I conclude that the testimony relating to defendant’s motive is insufficient to raise an issue of material fact as to whether defendant’s conduct was negligent as opposed to intentional.
¶9Plaintiff submits an alternative theory by which a trier of fact might characterize defendant’s conduct as negligence. He argues that the facts might be interpreted as showing that defendant made an unreasonable decision to act intentionally in defense of his person against plaintiff’s advances. A determination of negligence, it is asserted, could be predicated upon the defendant’s faulty decision to act intentionally. Although I agree with the majority that under certain circumstances this has been recognized to be a viable theory of negligence (see Wegman v. Pratt (1992), 219 Ill. App. 3d 883; Blackburn v. Johnson (1989), 187 Ill. App. 3d 557), it has no applicability to assist plaintiff in the present case because his complaint does not allege any such theory of negligence. On the contrary, the complaint describes defendant’s “negligent acts” as follows: ”(a) Extended his arm in a negligent matter [sic] without due regard for the presence of othersf,] (b) Made physical contact with the Plaintiff without due regard for the possible consequences of such contactf, and] (c) Failed to keep a proper lookout for the Plaintiff.” In contrast, both Wegman and Blackburn, cited by the majority, involved complaints which specifically alleged a theory of negligent decision to use force in defense of person. (Wegman, 219 Ill. App. 3d at 895; Blackburn, 187 Ill. App. 3d at 560.) Considering the plain and ordinary meaning of the present allegations, coupled with plaintiff’s failure to respond to the motion for summary judgment by arguing any alternative theory of interpretation, I conclude that the trial court was correct in its ruling that no issue of material fact existed as to the nature of defendant’s conduct.
¶10Having determined that no issue of material fact exists, the next consideration is whether the trial court, as a matter of law, properly granted summary judgment in favor of defendant. Defendant contends that an uncontroverted showing of intentional conduct entitled him to summary judgment.
¶11Intentional torts and negligence are distinct causes of action. Contrary to plaintiff’s contention, differing theories of tort liability are distinguished, not by their difference in degree of culpability, but, rather, they are distinguished on the basis of their qualitative differences in kind. (See Burke v. 12 Rothschild’s Liquor Mart, Inc. (1992), 148 Ill. 2d 429, 450-52 (qualitative differences between negligence and wilful and wanton conduct preclude their comparison for comparative fault purposes).) Moreover, it is the presence of the recognized elements of negligence and not the absence of intentional or reckless conduct which determines the right to maintain a negligence cause of action. In ruling upon a motion for summary judgment, the court must consider the specific allegations of the complaint. A complaint must contain a plain and concise statement of the plaintiff’s cause of action. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 603(a).) It should sufficiently define the issues and reasonably inform the defendant of the claim which he or she is called upon to meet. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 612.) Plaintiff, as the master of his complaint, was free to choose his theory of action, and a court’s determination of whether plaintiff is entitled to recovery is based upon the evidence adduced in support of his chosen theory.
¶12If, from the evidence before the court, a plaintiff has failed to establish an element of his cause of action as alleged, summary judgment for the defendant is proper. (Pyne v. Witmer (1989), 129 Ill. 2d 351, 358.) Plaintiff alleged his right to a cause of action based upon a specifically identified negligence theory of liability and was entitled to the benefit of every relevant fact necessary to succeed on that theory. His failure to provide sufficient evidence necessary to withstand defendant’s summary judgment motion, however, required the trial court to determine, as a matter of law, that plaintiff was not entitled to maintain his cause of action for negligence.
¶13For the foregoing reasons, I would affirm the circuit court’s order granting summary judgment in favor of defendant.