Appeal from the Circuit Court of Cook County; the Hon. IRWIN
N. COHEN, Judge, presiding. Affirmed.
Rehearing denied October 24, 1969.
This is an appeal from a judgment of the Circuit Court of Cook County based upon a jury verdict against defendant, Peabody Coal Company, assessing damages to plaintiff in the sum of $200,000. The jury had also answered a special interrogatory finding that Earl Edward Hendricks, plaintiff, was not guilty of negligence which proximately contributed to his injuries. As the case comes before us, the question of contributory negligence is not involved in this appeal. The only issue presented is whether plaintiff made out a case sufficient to raise a jury question, or alternatively stated, whether defendant should have foreseen harm to children such as plaintiff from the nature and use being made of defendant's premises.
The record discloses that on June 19, 1960, plaintiff, who was then 16 years and 5 1/2 months of age, was injured when he dove into a strip mine area that was filled with water, as a result of which he apparently broke his neck when his head hit the sand bottom. As a result of such injury, plaintiff is a quadriplegic and his disability is permanent. No questions of any trial errors are raised in this cause and our sole inquiry is to determine whether, under the facts before us, defendant owed a duty to plaintiff, and whether the determination of this cause was properly made an issue of fact for the jury.
It is noted that for some years prior to 1955, Peabody Coal Company was engaged in strip-mining operations in an area near Essex, Illinois, a small community of about 75 to 100 people. The body of water which was involved was in a pit in one of the abandoned strip mines located approximately 30 miles west of the city of Kankakee. The record discloses that the water-filled quarry was known throughout the city of Kankakee and vicinity, and that many people swam there and had heard about it from other persons who swam in the location. People came from as far away as Chicago, Joliet, Kankakee, Braidwood and South Wilmington. Defendant had excavated 70 to 75 feet deep to extract all coal from the area. After the defendant had ceased its mining operations in the area in 1955, and within six months thereafter, the aperture filled with water from natural springs, rain water and snowfall, which resulted in clean, clear water and made it an excellent swimming place. The water was 35 to 50 feet deep in places. By reason of the contour of the mine, as soon as one moved a couple of feet from the shoreline, he was in deep water. It differed from a natural lake in that there was a sharp drop-off. The north and east sides of the water hole were sand. It was about half a mile long and 300 feet in width at its widest point. A sand shelf extended in varying widths from a foot to three feet along the water edges.
There was no indication by signs that the pit, which was being used for recreational purposes, was owned or maintained by anyone, but, rather, that it was just wasteland or "a swimming hole." It was also used by motor boats, water skiers, fishermen, and picnickers. It had been frequented for long periods of time by teenagers, young adults and families who would bring infants. The water-filled quarry ran generally north and south. A two-lane paved road leading from Essex, Illinois, ran parallel to the quarry. The county gravel road ran in a westerly direction which passed a private club. From this gravel road there was a dirt road running southerly to the north side of the water. It was customary for motorists to drive up and park on the north side of the body of water, almost at the edge of the pit itself.
The particular day in question, June 19, 1960, was a Sunday. Four carloads with 13 teenagers left a home in Kankakee. When the young people arrived at the north end it was too crowded to swim there, so they went to the east end of the water. A few of the boys started to dive from a three-to-four-foot bluff into the water. When plaintiff arrived at the scene, three of his companions were diving into the water from a bluff on the east side of the north end. On this day, as on previous occasions when plaintiff had been there (this was his fifth trip there), one swimmer after another made his dive, then came to the plateau shelf and climbed up it. The sand on the shelf was stirred up and visibility made it impossible to see the location of the shelf or the bottom under the water. There was evidence that the use of the water and action of swimmers would stir the sand and make it shift. The evidence indicated that plaintiff went into the water only after seeing the other boys dive at the place several times. Each of them dove from the same spot out over the same area that plaintiff did. The evidence indicated that plaintiff was as capable in diving as the other boys. Plaintiff, however, had not yet dived at the particular place on this day. He followed one of his companions and another was waiting to follow him. From where plaintiff dove he could not see the sand and when he dove he did not know the condition of the sand in the bottom. Plaintiff ran and dived. He did not slip prior to his dive and the next thing plaintiff could remember he was laying on the bank. Other witnesses indicated that he had struck the sand at the bottom. One of his companions found him with his head partially imbedded in the sand and, with the help of others, pulled him out of the water.
From 1955 to 1960, the only policing of the area was done by defendant's employees on a part-time basis. It was only a part-time activity, and all the employees did, when they found people there, was to take down one or two of the license numbers but nothing further was done about it. It was not until after the injury to plaintiff that defendant allowed police to come onto the premises and, thereafter, signs were also put up in the quarry. There was strong evidence that there were no signs prohibiting trespassers or warning of any danger prior to the time of the occurrence resulting in injury to plaintiff. There were also no fences or barricades of any kind anywhere nor were there any lifeguards or life preservers.
Evidence was introduced at the trial of this cause disclosing that the cost of a six-foot high steel chain link fence with steel posts set in concrete surrounding the entire pit would have cost $12,000 to $14,000, and that this would have effectively barred persons from using the premises.
It is asserted by plaintiff in this cause that as the case is now presented to this Court, the admitted facts are that (1) defendant created the condition, having excavated a deep hole out of the earth; (2) defendant abandoned the area in 1955; (3) within six months thereafter, it was filled with water thirty-five to forty-five feet deep, water which was clear and clean which defendant knew made an excellent swimming place; (4) this body of water was different from a natural lake in that there is a sharp drop-off a couple of feet from the shore, with the water following the contour of the mine; (5) when swimmers were in the water, the sand would shift from their activity in contact with it and this changed the location of the sand; (6) for a period of years, defendant knew this place was frequented by swimmers, divers, picnickers, boaters, water skiers, and fishermen; (7) defendant knew of the configuration of the pit with the shelf to the drop-off lurking just below the water surface, and that there would be large numbers of people in the place for recreation of varying ages, from adults and teenagers to infants; (8) with this knowledge, defendant undertook to police the area in an inadequate manner and not until 1961, after the accident, allowed the Essex Police Department to take over; (9) the area was not fenced, although this could have been done for a very reasonable sum; (10) defendant did not post the area so that even adults did not know it was another's property, but described it as wasteland or a swimming hole; (11) plaintiff, as good a diver as his companions, on this particular day did a running dive, as his companions had been doing, and did not fall but went into the water, where he was found; and (12) what plaintiff struck was not known, since he seemed to go out normally on the dive and was found unconscious. These assertions made by the plaintiff are, in fact, supported by evidence in the record, although there was some dispute as to certain facts involved.
Defendant contends that plaintiff failed to show that defendant violated any duty owed to him and specifically failed to show under the precedent of Kahn v. James Burton Co., 5 Ill.2d 614, 625, 126 N.E.2d 836, that defendant owed plaintiff a duty. It is stated in this connection that the theory of "attractive nuisance" to remove a minor from the status of a trespasser no longer appears to be the law in Illinois (Kahn v. James Burton Co., supra). Both parties to this cause agree that the test is foreseeability of injury as enunciated in Kahn v. James Burton Co., supra, rather than a vaguely announced doctrine of "attractive nuisance." The fundamental question is whether the evidence establishes a sufficient basis upon which a jury could determine that defendant was guilty of negligence toward plaintiff.
As stated in Runions v. Liberty Nat. Bank, 15 Ill. App.2d 538, 147 N.E.2d 380 (at 504):
"Plaintiff relies upon Kahn v. James Burton Co., 5 Ill.2d 614 (1955). That case marks a departure from the traditional standards developed by the law in cases in which children are attracted to and trespass upon premises and are injured as a result thereof. All cases of this character must now be examined in the light of the Kahn case. Prior authorities must yield to the principles therein set forth. Previously, such cases had been set apart in the category known as `attractive nuisance' cases. The Supreme Court in the Kahn case deplored this inclination to find a `stare decisis pigeonhole or category' because such procedure led to irreconcilable conclusions. The court cited instances of confusion in decisions. It laid down certain general principles governing cases such as the one before us, and we have carefully examined that opinion to determine whether the amended complaint here states a case within those principles."
In the Kahn case, it was noted that some of the conflicting decisions had stated that water itself could not be an attractive nuisance, but that there must be other objects present, although it was the water that caused the drowning. The court concluded that these meaningless differences were best resolved by treating such situations according to the "customary rules of ordinary negligence cases." After analyzing this situation, the court stated, in the Kahn case (at page 624):
"In view of the foregoing conflict and the fact that, as many courts have declared, a child in his youthful fancy, imagination and ingenuity can make a plaything of almost anything and is attracted by almost everything, the only proper basis for decision in such cases dealing with personal injuries to children are the customary rules of ordinary negligence cases."
The true basis of liability which the Kahn case underscored was the foreseeability of harm to the child. As the court stated (at page 625):
"The element of attraction is significant only insofar as it indicates that the trespass should be anticipated, the true basis of liability being the foreseeability of harm to the child."
In Skaggs v. Junis, 27 Ill. App.2d 251, 169 N.E.2d 684, a boy 16 years and 2 months of age dove into defendant's fenced, artificial pond on his farm, struck a submerged stump, and was paralyzed. Defendant contended that plaintiff hit the pond bottom. The plaintiff had heard about the pond from others and the pond had been used by the public for many years, frequently without defendant's permission for swimming, outings and picnics. The trial court had directed a verdict on a negligence count for the defendant and the jury found for defendant on a willful and wanton count. The Appellate Court reversed and remanded for new trial on both counts and considered that the case presented questions, first, as to defendant's foreseeability of harm to children, and, secondly, on the question of the minor's care. The court stated in that case (at page 259):
"Giving the principles of the Kahn case their full import, and applying them to the facts in the instant case, the conclusion seems irresistible that the issues as to whether the pond and premises were sufficiently attractive to entice the plaintiff as to entering them, whether the condition of the pond and premises were such as to create an unreasonable danger to children frequenting them, whether the defendant should reasonably have foreseen harm to children from the condition of his pond and premises, and whether the plaintiff was guilty of contributory negligence, were questions for the jury under the circumstances shown in the record. We find further support for this conclusion in the following decisions handed down since the Kahn case was decided: Haloran v. Belt Ry. Co. of Chicago, 25 Ill. App.2d 114, 166 N.E.2d 98; Wilinski v. Belmont Builders, Inc. (1957), 14 Ill. App.2d 100, 143 N.E.2d 69; Kleren v. Bowman (1957), 15 Ill. App.2d 148, 145 N.E.2d 810; Runions v. Liberty Nat. Bank (1957), 15 Ill. App.2d 538, 147 N.E.2d 380; Melford v. Gaus & Brown Const. Co., Inc. (1958), 17 Ill. App.2d 497, 151 N.E.2d 128."
The court further stated, at page 260:
"With regard to the age of the plaintiff, it is our conclusion that the fact that he was 16 years and 2 months old at the time of the occurrence does not prevent the principles of the Kahn case from applying. While the plaintiff was 16 years of age, he had just completed his freshman year of high school. Moreover, the question of contributory negligence, as hereinabove noted, is preeminently a question for the jury to determine in the light of the plaintiff's capacity, intelligence, and experience."
Age alone has not been the conclusive factor and, as stated in the Restatement of the Law of Torts, 2d edition, § 339, Comment c:
"The great majority of the courts have rejected any such fixed age limit, and have held that there is no definite age beyond which the rule here stated does not apply."
Normally, under the Illinois law, the degree of care of a minor under the age of 21 is a question of fact to be determined by the jury in view of the minor's age, mental capacity and experience (Wolf v. Budzyn, 305 Ill. App. 603, 27 N.E.2d 571). This particular rule is codified in IPI 10.05, which instruction was given in this case and as to which defendant has not raised any question on this appeal.
Both parties have cited § 339 of the Restatement of the Law of Torts, 2d edition, as supporting the position of both appellant and appellee in this case. In such section it is stated that a possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land under certain situations. Under subsection (a) it is stated:
"(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass."
In the case before us, the place was described as an excellent swimming place. Defendant had actual knowledge that it was used for this purpose and for recreation.
In subsection (b) of § 339 of the Restatement, it is stated:
"(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children."
In the case before us, the children used the place not only for diving, picnicking and swimming, but for water skiing and fishing. Because of the nature of the swimming place with its quick drop-off approximately two feet from the shoreline, it involved far greater risk of death or serious bodily injury than if it was an ordinary lake with its gradual inclination. The jury could well have determined that the defendant could have foreseen the happening of the occurrence, in this case.
In subsection (c) of § 339 of the Restatement, it is stated:
"(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming ...