(dissenting). C.L.’s affidavits establish that Hohlstein is not entitled to judgment as a matter of law. Therefore, I dissent.
C.L.’s complaint alleged that Hohlstein was negligent in failing to deny to Olson the right to operate a motor vehicle and in failing to restrict Olson to operating a motor vehicle only for purposes of employment. The trial court granted Hohlstein’s motion for summary judgment on the ground that he is immune from liability because these were discretionary decisions.
C.L. submitted two affidavits in opposition to Hohlstein’s motion for summary judgment. One of the affidavits was based upon the deposition of Hohlstein. These affidavits alleged that Hohlstein negligently supervised Olson, and detailed his allegedly negligent acts. Had these allegations been included in C.L.’s complaint, the complaint would have stated a cause of action because these acts were, arguably, ministerial. The trial court did not consider the effect of these affidavits or of Hohlstein’s deposition. The majority states:
Because the other acts of negligence described in C.L.’s opposing affidavits are not alleged in her complaint, we do not reach them. Summary judgment methodology does not allow enlargement of the issues beyond those framed by the pleadings. (Footnote omitted.)
*242Majority opinion at 239.
I do not believe this is the law. Section 802.08(2), Stats., provides:
The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Emphasis added.)
A trial court does not review the supporting and opposing papers solely to determine whether there are disputed issues of material fact but to determine whether either party is entitled to judgment as a matter of law. Here, C.L.’s affidavits alleged a cause of action, supported by facts, which was not subject to Hohlstein’s immunity defense. On review, we are entitled to "reach” and consider Hohlstein’s acts of negligence described in C.L.’s affidavits.
If C.L.’s affidavits and Hohlstein’s deposition are considered, Hohlstein is not entitled to judgment as a matter of law. I believe sec. 802.08(2), Stats., required that the trial court consider these documents. Wisconsin’s civil procedure code,
reflects a determination that the resolution of legal disputes should be made on the merits of the case rather than on the technical niceties of pleading. The "notice” pleading rules of the ... civil procedure code are intended to facilitate the orderly adjudication of disputes; pleading is not to become a "game of skill in which one misstep by counsel may be decisive of the outcome.”
*243Korkow v. General Cas. Co. of Wisconsin, 117 Wis. 2d 187, 193, 344 N.W.2d 108, 111-12 (1984), quoting Canadian Pac. Ltd. v. Omark-Prentice Hydraulics, 86 Wis. 2d 369, 373, 272 N.W.2d 407, 409 (Ct. App. 1978).
We are not rigidly bound by the pleadings. "Pleadings are not an end in themselves but a means to the proper presentation of a case. Pleadings are to assist, not to deter, the disposition of the case on its merits.” State v. Peterson, 104 Wis. 2d 616, 629, 312 N.W.2d 784, 790 (1981). Obviously, pleadings are followed by discovery. Discovery frequently will reveal facts not available to the pleader which support the stated cause of action or additional causes of action. If we allow a motion for summary judgment to "freeze” plaintiffs case, we have placed in the hands of skillful counsel a defense weapon which subverts the purpose of notice pleadings.
There do not appear to be any Wisconsin decisions as to the effect of a motion for summary judgment upon amendment of the complaint. Federal decisions construing procedural counterparts to Wisconsin’s rules of civil procedure are, however, persuasive. Wilson v. Continental Insurance Cos., 87 Wis. 2d 310, 316, 274 N.W.2d 679, 682 (1979). Section 802.08(2), Stats., "is virtually identical to Federal Rule 56(c).” Judicial Council Committee’s Note, 1974, 67 Wis. 2d at 632.
The trial court should have treated C.L.’s complaint as amended by the affidavits or, at least, should not have granted summary judgment against C.L. without allowing her to amend her pleadings. In a dictum the Court of Appeals for the Second Circuit stated:
*244We do not commit ourselves ... as to the proposition that on a motion for summary judgment affidavits going beyond the complaint can under no circumstances be considered. The judgment finally disposes of the action, and if facts appear in affidavits which would justify an amended complaint, there may be ground for treating the complaint as though it were already amended to conform.
Seaboard Terminal Corp. v. Standard Oil Co., 104 F.2d 659, 660 (2d Cir. 1939).
Similarly the trial court should allow amendments to the pleadings even when a motion for summary judgment has been filed. 6 J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice, para. 56.10, p. 56-170-71 (2d ed. 1987) states:
Since a summary judgment is an adjudication on the merits and because of Rule 15, it is the duty of the trial court freely to allow amendments to the pleadings, unless the application to amend smacks of dilatory tactics or in some other respect fails to further justice. The general admonition has been stated by Judge Clark in Rossiter v. Vogel [134 F.2d 908, 912 (2d Cir. 1943)]:
"where facts appear in affidavits upon motion for a summary judgment which would justify an amendment of the pleadings, such amendment should not be prevented by the entry of a final judgment."
Indeed at times it will be feasible and desirable to treat the pleading as though it were amended to conform to the facts set forth in the affidavits.
*245It has been stated: "[I]t is now settled that the process of amendment may be initiated by presentation of an issue for the first time in a motion for summary judgment. 10 C. Wright & A. Miller, Federal Practice and Procedure, sec. 2722 at 477 n.22 (1973).” In re Zweibon, 565 F.2d 742, 747 n.20 (D.C. Cir. 1977) (other citations omitted). See also Baker v. Chicago, Fire & Burglary Detection, Inc., 489 F.2d 953, 955 n. 3 (7th Cir. 1973) (where a summary judgment motion is supported by matters outside the pleadings, the court could deem the pleadings conformed to the proof offered).
It was not appropriate for the trial court to grant a summary judgment without considering matters raised in C.L.’s affidavits. "The issue having been pressed, the court should not have granted summary judgment against appellant without affording him the opportunity to amend his pleadings.” Kulkarni v. Alexander, 662 F.2d 758, 763 (D.C. Cir. 1978) (citation omitted). Moore’s states: "[A] complaint should not be summarily dismissed if there is reasonable ground for the belief that in the reframing of the complaint a good cause of action may be stated.” 6 Moore’s Fed. Prac., supra, pp. 56-173. See also Wise v. McCarty Aniline & Extract Co., 9 F.R.D. 170, 171 (D.N.J. 1949).
In Freeman v. Marine Midland Bank-New York, 494 F.2d 1334, 1338-39 (2d Cir. 1974), the court held that on a motion to dismiss treated as a motion for summary judgment under Rule 56, the plaintiffs affidavit opposing the motion to dismiss should have been considered in testing the sufficiency of the plaintiffs pleadings, as well as in testing whether a triable issue of fact existed. Johnson v. Mateer, 625 F.2d 240, 242 (9th Cir. 1980), states:
*246The district court should have construed the affidavit as a request pursuant to rule 15(b) of the Federal Rules of Civil Procedure to amend the pleadings out of time and should have determined whether, based on the contents of the affidavit read with the complaint, triable issues of fact existed. (Citation omitted.)
See also National Agr. Chemicals Ass’n v. Rominger, 500 F. Supp. 465, 473 (E.D. Calif. 1980) ("When deciding a motion for summary judgment the court may evaluate not just the issues presently tendered by the pleadings but those which can reasonably be raised in an amended pleading.”).
The majority appears to leave open the possibility that the trial court could entertain a motion by C.L. to amend her complaint. Majority opinion at 239 n. 7. I agree that the trial court has the power to grant C.L. leave to amend her complaint even though summary judgment has been granted. Hartmann v. Time, 64 F. Supp. 671, 680 (E.D. Penn. 1946) (if an amendment is justified it ought not to be prevented by entry of a final summary judgment on defendant’s motion), vacated on other grounds, 166 F.2d 127 (3rd Cir. 1948). Whether such leave will be granted is in the discretion of the trial court if the time for amendment as a matter of course has run. Sec. 802.09(1), Stats. However, I believe it is inefficient to interpose appellate review between consideration of a motion for summary judgment and a motion to amend a pleading to state a claim. Hopefully, future trial practice will defer the filing and deciding of motions for summary judgment at least until the completion of pre-trial discovery has allowed the parties time to frame all of the issues by the pleadings. Future trial court practice should include in the summary judgment methodolo*247gy consideration of whether affidavits filed in opposition to a motion for summary judgment, read with the complaint or pleading which states a claim, raise triable issues of fact.