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Boehne v. Elgin Packing Co.

NOVEMBER 6, 1972.

DALE M. BOEHNE, A MINOR, BY EARL F. BOEHNE, HIS FATHER AND NEXT FRIEND, PLAINTIFF-APPELLANT,

v.

ELGIN PACKING COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Kane County; the Hon. JOHN S. PETERSEN, Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

A complaint was filed by the father and next friend of plaintiff, a four-year-old boy, alleging that defendant owned property located near plaintiff's residence; that present on this property was "a collection of debris, including large boulders and at least one piece of heavy timber;" that the condition of the premises involved a reasonably foreseeable risk of harm to children who defendant knew or should have known frequented the premises; that said condition of the premises was the proximate cause of an injury to plaintiff's hand. The complaint did not allege negligence on the part of the defendant or specify how the injury occurred. Defendant's answer admitted only the ownership of the land and plaintiff's age.

Defendant filed a motion for summary judgment alleging that there was no genuine issue as to the material facts, admitting that plaintiff was injured on defendant's premises and that the injury resulted when a tree limb struck plaintiff's hand as it rested on a boulder but that, as a matter of law, a tree limb is a natural object which is not inherently dangerous and consequently defendant is not liable for the resulting injuries. In support of the motion defendant attached copies of the depositions of plaintiff, his father and his brother.

The issue before us is whether it was proper, in this case, to grant a summary judgment for the defendant. Under the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, sec. 57 (3)), a party is entitled to a summary judgment:

"* * * if the pleadings, depositions, 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 a judgment or decree as a matter of law * * *."

• 1 There is no direct statement either in the complaint or the depositions as to how the injury occurred. The father of the minor in his answer to an interrogatory stated that the boy's hand was smashed between "rock and tree limb found on the premises." The father was not present at the time of the incident. The older brother of the plaintiff did not see the incident but in an answer to an interrogatory stated "the tree fell over and hit his hand." The following colloquy took place at the deposition of the minor plaintiff, this being some years after the incident:

"Q. Dale, do you remember the day you were injured? Do you remember much about it?

A. No.

Q. You don't remember where you were at the time?

A. No.

Q. You don't remember what you were doing?

A. Yes.

Q. What were you doing at ...


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