APPEAL from the Circuit Court of Cook County; the Hon. RONALD
J. CRANE, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Dennis Beechy, a minor, brought suit by his father and next friend, William Beechy (hereinafter plaintiff), against both Dave DeVoss (hereinafter DeVoss) and the Village of Oak Forest (hereinafter Village) to recover for injuries incurred when a sled he was riding down an embankment collided with a swing set situated at the foot of that embankment. The trial court sustained defendant's motion to dismiss and granted plaintiff leave to file an amended complaint. Thereafter plaintiff moved to file an amended complaint which motion was denied, the court further providing in said order that as to the Village the cause be dismissed with prejudice and also finding there was no just reason for the delay of an appeal. Plaintiff now appeals the dismissal of the Village. However, the trial court granted the plaintiff leave to file a second amended complaint against defendant DeVoss.
Briefly stated, as alleged in the complaint, the facts giving rise to this cause of action are as follows: Plaintiff, a ten-year-old boy, at all times free from contributory negligence, rode his sled down an embankment *fn1 located on property owned by the Village and, as he reached the bottom of the embankment, and unable to stop the sled, struck a swing set located on property adjacent to the embankment, owned by defendant DeVoss; that the defendants knew or should have known there were many children living in the community and the embankment attracted the children to go sledding during the winter months. As a result of this collision, the plaintiff suffered severe contusions of the left kidney, and that said injuries were the direct and proximate result of defendants' negligent, willful, wanton, reckless and careless acts.
In the amended complaint plaintiff further alleged that Village maintained its property which contained an embankment of a steep inclination; that the embankment and swing set openly exposed to children of tender years constituted an attractive nuisance; that defendants knew, or should have known, such children are incapable of appreciating the risk; and, that the defendants had a duty to remedy such condition so as to protect such children.
Plaintiff contends he stated a good cause of action against the Village and, the trial judge's dismissal deprived plaintiff of his right to a jury trial. On the other hand, defendant claims the trial judge's dismissal was proper since plaintiff failed to plead facts necessary to state a cause of action.
• 1 The determination of this issue depends solely upon the sufficiency of plaintiff's complaint, since a complaint can withstand a motion to dismiss only when it contains averments of fact sufficient to state a cause of action (Jarvis v. Herrin City Park District (1972), 6 Ill. App.3d 516, 524, 285 N.E.2d 564).
• 2 As a general rule the owner, or one in possession, of premises is not obligated to keep them in a safe condition for the benefit of those who come upon the land without an invitation (Briney v. Illinois Central R.R. Co. (1948), 401 Ill. 181, 81 N.E.2d 866). However, our supreme court in Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 625, 126 N.E.2d 836 carved out the following exception:
"[W]here the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children."
When each of these four elements is present in a given case, the owner or person in possession has a duty "to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it" (Id.). Since, in the case at bar, the plaintiff's action is founded on the exception set out in Kahn, it was incumbent upon him to allege facts in his complaint sufficient to establish all the elements essential to his cause of action.
Plaintiff alleges in the amended complaint that both defendants knew or should have known that there were many children living in the community; that the maintenance of the embankment by the Village and the maintenance of the swing set at the foot of the embankment
"Constituted an attractive nuisance to such children in that Defendant knew, or should have known, that young children habitually frequented the vicinity of such a dangerous agency or condition existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk this involved."
Plaintiff goes on to set out the circumstances of his accident and alleges that his injuries were the direct and proximate result of the defendants' negligent acts. On appeal, plaintiff maintains that his complaints contain all the elements essential to state a cause of action and contends that the trial court's dismissal of the cause of action as against the Village deprived plaintiff of the right to a jury trial.
• 3, 4 The trial court's ruling could have deprived plaintiff of the right to a jury trial only if the allegations in the complaints presented questions of fact for the jury's determination. Here the plaintiff's complaints presented no questions of fact and, in our opinion, as a matter of law, failed to state a cause of action.
While it cannot be disputed that a snow-covered incline (not so pleaded in the complaints in the case at bar) presents an irresistible attraction to most children with a sled on a crisp winter day, the attractive nature of the embankment, standing alone, does not give rise to liability for a ...