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Landman v. M. Susan & Associates

OCTOBER 4, 1965.

RICHARD LANDMAN, A MINOR, BY HIS FATHER AND NEXT FRIEND, LEO LANDMAN, PLAINTIFF-APPELLANT,

v.

M. SUSAN & ASSOCIATES, INC., A CORPORATION, AND NAVANOLE & RUFFULO, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. ALBERT E. HALLETT, Judge, presiding. Affirmed.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Plaintiff, a minor, seeks damages for an eye injury which resulted from sand thrown at him by a minor playmate while they were playing on a sand pile at a construction site. The trial court sustained motions to dismiss and entered judgment on the pleadings in favor of both defendants.

Plaintiff appeals on the theory that the complaint states a cause of action in that it alleges the defendants, both engaged in the building construction business, created and negligently maintained a hazardous condition dangerous to children of tender years, which proximately caused the personal injuries sustained by the plaintiff.

Initially, we agree with the plaintiff that as this cause was determined in the trial court on plaintiff's complaint and on defendants' motions to dismiss and for judgment on the pleadings, all of the well pleaded allegations of the complaint, together with all fair inferences to be drawn therefrom, are taken as true. A.A. Erickson Bros., Inc. v. Jenkins, 41 Ill. App.2d 180, 188, 190 N.E.2d 383 (1963).

In substance, the complaint alleges that defendants, in the course of erecting a building, caused a "large pile of sand or soil" to be placed on the premises; that on May 18, 1963, plaintiff, then age 12, was playing with other children on the pile when one of the children "threw sand or soil at the said Richard Landman, thereby seriously and permanently injuring him. . . ."

The negligent acts charged against defendants are that they: "(a) Failed to erect any fence or other warning of the danger around the large pile of sand or dirt. (b) Failed and neglected to maintain a watchman about said premises for the purpose of preventing children from playing upon or about it. (c) Caused said pile of sand or soil to be maintained at such height as to expose children of tender years to an unreasonable risk of harm. (d) Carelessly and negligently maintained, operated and controlled said premises."

Plaintiff argues that "the complaint being taken as admitted, both corporate defendants had actual knowledge that young children came upon the land and played upon the large pile of sand and soil, including throwing the same at one another. A jury of fair minded men could therefore reasonably find that the defendants should have foreseen that injury to the young children would occur unless adequate protective measures were adopted. This same jury could also reasonably find that the negligence of the defendants in allowing the children to continue throwing the debris at one another, after having actual knowledge of the same, to be the proximate cause of the loss of sight by the plaintiff." Plaintiff therefore concludes that the trial court erred in holding that the plaintiff's complaint failed to state a cause of action and in allowing defendants' motions to dismiss and for judgment on the pleadings.

The authorities cited by plaintiff, and which, we believe, provide the guidelines to be used here, are Kahn v. James Burton Co., 5 Ill.2d 614, 126 N.E.2d 836 (1955); Stewart v. DuPlessis, 42 Ill. App.2d 192, 191 N.E.2d 622 (1963); Smith v. Springman Lumber Co., 41 Ill. App.2d 403, 191 N.E.2d 256 (1963); and Halloran v. Belt Ry. Co. of Chicago, 25 Ill. App.2d 114, 166 N.E.2d 98 (1960). In the Kahn case, the plaintiff was injured when a pile of lumber on which he had been playing toppled over and boards of the pile fell on him. In that case, our Supreme Court said (p 622):

"The test in the case at bar is whether the lumber company in the exercise of ordinary care could reasonably have anticipated the likelihood that children would climb onto the lumber and would be injured if it were not securely piled."

The court also stated (p 625):

"The element of attraction is significant only in so far as it indicates that the trespass should be anticipated, the true basis of liability being the foreseeability of harm to the child."

In the Stewart case, which also involved a construction site, the plaintiff was hit in the face with a slaking lime "snowball," thrown by his playmates. In that case, this court said (p 197):

"The question is whether leaving slaking lime on premises frequented by children created a condition hazardous to children. We believe this is a question of fact to be resolved by a jury."

In Smith v. Springman Lumber Co., a seven and onehalf-year-old child climbed upon an unused, rusty oil tank and, while attempting to climb on an adjoining tree, slipped and fell to the ground. It was admitted that the defendant had knowledge that children played on the ...


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