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Okleshen v. Rune & Sons

DECEMBER 5, 1969.




Appeal from the Circuit Court of Cook County; the Hon. WILBERT F. CROWLEY, Judge, presiding. Affirmed in part, reversed in part.


Plaintiff appeals from judgment entered upon jury verdicts, (1) against the defendant Rune in the sum of $8,000 with the contention that there should be a new trial upon the issue of damages only and (2) finding the defendants Nelson not guilty. Defendant Rune cross-appeals from the judgment and from the denial of its motions for directed verdict and for judgment non obstante veredicto raising the issue of the sufficiency of the evidence to support either a finding of negligence or proximate cause.

Defendants Nelson owned property upon which a home was being built through contracts with divers craftsmen. Defendant Rune performed a contract to do the cement and masonry work.

In the course of the construction of the Nelson home, Rune's employees had brought a gasoline drum on the building premises. The plaintiff, Richard Okleshen, aged six years, and his brother, Robert, and Randy Thrall, each aged ten years, on the date of the accident had gone to the site to play in a "fort" they had built. They went inside the partially constructed Nelson house and found a tennis ball with which they played "catch." Sometime later they went outside and noticed the drum which the evidence discloses had two openings, a spigot and a screw cap, sometimes called a filler cap. It had been left on the property by Rune's foreman, who found that gas could no longer be drawn from the spigot. The spigot itself had a device by which it could be securely locked, and the evidence is that, prior to and at the time of this occurrence, it was, in fact, locked. The testimony of the plaintiff is that at the time the barrel was on its side, but he agreed that he had, at a prior time, stated that his brother, Robert, pushed the barrel from a vertical position over on its side. One or more of the boys and probably Robert removed the screw cap described as being 4 or 5 inches in diameter and rolled the barrel so that some gasoline came out. Robert ordered the plaintiff to get matches and the latter returned to the kitchen in his home where his mother was standing at the sink. He first took some cookies from a jar and then opened a drawer from which he took a small box of wooden matches from a larger box or carton of matches. His mother observed him taking the cookies. The boys rolled the drum so that some gasoline was poured onto the tennis ball and the boys lighted it and watched it burn. Determining to build a fire, one got a metal bucket from the site, put some gasoline from the drum into it and carried the bucket to the pile of wood scrap on the premises. One poured the gasoline over the scraps and after using more than one match, got a fire going. It appears that in carrying the bucket some gasoline was spilled on the trousers of the plaintiff and as he stood near or jumped over the fire, the trousers were ignited.

Plaintiff suffered third-degree burns on his right leg extending from his groin to below his ankle. Much of the skin on his leg had burned away, with pieces of burned skin hanging down in strips two to five inches long. He was hospitalized and skin grafts were made from other parts of his body to the parts which had burned. He was in the hospital about four and one-half months, at a cost in excess of $8,500. He sued, by his next friend, for his injuries and medical expenses.

In urging a new trial on the issue of damages only as to defendant, Rune, plaintiff urges error in the overruling of objections of the plaintiff to questions asked certain witnesses on cross-examination, to the giving of certain instructions tendered by Rune to the exclusion of certain slide exhibits of plaintiff, and in that the damages awarded were patently inadequate to compensate plaintiff for his injuries.

Plaintiff complains that it was reversible error for defendants to be permitted to examine certain witnesses concerning the possible misconduct of plaintiff's parents. We cannot agree. Plaintiff had the burden of proving that defendants were negligent and that such negligence proximately caused the injury to plaintiff. Defendants' theory of this examination was that it tended to show that the circumstances of the injury were not foreseeable as defendant, Rune, could not foresee that the parents' misconduct would have occurred under the present circumstances.

Plaintiff also contends that a new trial on all issues should be ordered as to the Nelsons on the grounds that the verdict in their favor is contrary to law and against the manifest weight of the evidence, that the court erred in refusing to give certain instructions tendered by the plaintiff or any instructions containing plaintiff's theory of liability as to the Nelsons, and that error was committed in permitting the Nelsons' counsel to argue that the alleged negligence of plaintiff's parents barred plaintiff's cause of action.

Upon the issue of the liability of the Nelsons, the jury verdict is supported by the evidence that there was no negligence on the part of the owners, and that the injuries were not foreseeable to them. Recent cases in Illinois have reviewed the classic "attractive nuisance" theory of liability for injury to children on the property of another. In Kahn v. James Burton Co., 5 Ill.2d 614, 126 N.E.2d 836 (1955), our Supreme Court declared that "the only proper basis for decision in such cases dealing with personal injuries to children are the customary rules of ordinary negligence cases." (At 624 (126 N.E.2d at 841).) An owner of property may not be held liable for injuries caused by the negligence of an independent contractor working on the premises when the owner does not exercise any control over the contractor in the performance of the contract.

As was held in the Kahn case, "the person responsible for creating the dangerous condition will be liable." (At 621 (126 N.E.2d at 840).) The test is whether the injury was foreseeable to the landowner. This is the true basis for liability in what has been formerly known as "attractive nuisance" cases. The doctrine of foreseeability in such cases has been clearly expressed also in Kuhn v. Goedde, 26 Ill. App.2d 123, 167 N.E.2d 805 (4th Dist 1960), and Prater v. Veach, 35 Ill. App.2d 61, 181 N.E.2d 739 (4th Dist 1962). From these cases, the following rules are evident: (1) In order to hold an owner liable, he must be shown to have actual or constructive knowledge of the condition; (2) if aware of the condition, it must be shown that he has knowledge that this condition involves an unreasonable risk to children; (3) an owner is not required to inspect the work of an independent contractor; and (4) if the owner confines his activities to checking up on the contractor only to see how the job is progressing, he is not deemed to have constructive knowledge of every condition or detail of the job, nor is he responsible for the contractor's equipment.

There is no evidence that the owners ever had seen the drum on their property, or knew that it was left there over the weekend when the contractor's employees were not there. In the absence of such evidence, the owners had no actual or constructive notice of the condition causing the injury and, therefore, the verdict as to them is in accord with, not contrary to, the manifest weight of the evidence.

Upon the evidence the issue of the liability of the defendant, Rune, is concluded by the opinion in Driscoll v. Rasmussen Corp., 35 Ill.2d 74, 219 N.E.2d 483. In Driscoll the minor plaintiff and his companions went upon the premises under construction and ultimately opened sealed cans of lacquer found in a trash pile. Some of the contents were splashed upon plaintiff's trouser leg and he was injured when fire was brought upon the scene from off the premises. Plaintiff's clothing became ablaze after the fire was applied to ignite one or more of the cans.

Here the evidence, including the testimony of plaintiff's father, is that the spigot of the gas drum was padlocked. Plaintiff's older companions contrived to remove the filler cap on the drum, and to pour out some gasoline after considerable manipulating of such drum. The matches were brought to the premises by the plaintiff at the direction of his older brother and their companion.

In discussing the duty to exercise ordinary care to guard against injuries which are reasonably probable from the condition created, the Supreme Court, in Driscoll, noted that it could hardly be foreseen that the sealed cans might be opened and lacquer splashed upon the clothing which would be ignited by fire obtained at other places. That opinion pointed out ...

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