(dissenting). I respectfully dissent from the majority opinion because the majority has improperly used the pleadings in this case. The majority incorrectly compares the pleadings with defendant Hardtke's affidavit.1 Formerly, pleadings were made under oath, sworn to by litigants, and stated evidentiary or ultimate facts.2 Section 802.02, Stats., however, did away with ultimate fact pleadings and the practice changed to notice pleadings in 1976.3 Since that time the law has required pleadings to contain "a short and plain statement of the claim, identifying the transaction, occurrence or event out of which the claim arises and showing that the pleader is entitled to relief. ..." See sec. 802.02(l)(a). In addition, a pleading must incorporate "a demand for judgment for the relief to which the pleader deems to be entitled...." See sec. 802.02(1) (b). *522The defendant's pleadings in this case were not admissions or ultimate facts made under oath; rather, they were mere statements which were written by the party's attorney. They should therefore not be considered as evidence.
Section 802.08(3), Stats., supports this conclusion as well. It states in relevant part:
Supporting and opposing affidavits shall be made on personal knowledge and shall set forth such eviden-tiary facts as would be admissible in evidence. . . . When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of the pleadings but the adverse party's response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue for trial.
The only evidence provided by plaintiff to show that the incident involved negligence rather than an intentional tort was an affidavit which was a mere recitation of the unsworn pleading. In fact, plaintiff lacked relevant evidence that contradicted Hardtke's affidavit stating that he intended to hit Gouger.
When ruling on a motion for summary judgment, Wisconsin courts are to determine whether the pleadings show that factual issues exist. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 317, 401 N.W.2d 816 (1987). If factual issues exist, as they did in the present case, then the court "examines the moving party's affidavits for evidentiary facts to determine whether the party made a prima facie case for summary judgment." See 5 Callaghan's Wis. PI & Pr (3rd Ed) sec. 38.27 (emphasis added). When it is determined that a prima facie case has been made, "the court examines the opposing affidavits for evidentiary facts and proof to determine whether *523a genuine issue exists as to any material fact." Id. (emphasis added). See also Wagner v. Dissing, 141 Wis. 2d 931, 939-40, 416 N.W.2d 655 (Ct. App. 1987), Kimpton v. New Lisbon School Dist., 138 Wis. 2d 226, 230-31, 405 N.W.2d 740 (Ct. App. 1987). This court examined pleadings when it should have been reviewing affidavits to determine whether a prima facie case exists for summary judgment and to determine whether a genuine issue exists as to any material fact.
Furthermore, the majority inappropriately supports its use of the pleadings by considering pleadings as "other proof." Majority op. at 519 (citing Leszczynski v. Surges, 30 Wis. 2d 534, 539, 141 N.W.2d 261 (1966)). The term "other proof" is meant to include evidence from adverse examinations, depositions, answers to interrogatories, and answers to motions to admit or deny. All such matters must be sworn to under oath. Contrary to what the majority states, "other proof" does not mean unverified pleadings created by attorneys.
I believe the case should be remanded to the trial court for further proceedings consistent with the reasoning set forth above, and, therefore, I respectfully dissent.
Hardtke's affidavit states that he intended to hit plaintiff Gouger but does not state he intended to injure the plaintiff.
The former law was set forth under Chapter 263 and stated that the complaint shall contain, among other things, "[a] plain and concise statement of the ultimate facts constituting each cause of action . . .." See sec. 263.03(2), Stats. (1975) (emphasis added). The law also required that "[e]very pleading, except a demurrer, must be verified; but the verification may be omitted when an admission of the allegations might subject the party to prosecution for felony." See sec. 263.24 (1975). The verification was required to be "by the affidavit of the party, or if there be several parties united in interest and pleading together, by one at least of such parties acquainted with the facts." See sec.263.25(l) (1975).
See Supreme Court Order, 67 Wis. 2d 616, effective Jan. 1, 1976.