Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of St. Clair
County; the Hon. Joseph E. Fleming, Judge, presiding.
MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 28, 1975.
Defendant, Peabody Coal Company, appealed from the judgment of the circuit court of St. Clair County entered upon a jury verdict in the amount of $500,000 in favor of plaintiff, Judith Sparling, in her action to recover damages for personal injuries suffered when she fell into a fire burning inside a pile of coal dust or slack. The appellate court reversed the judgment (16 Ill. App.3d 301) and we allowed plaintiff's petition for leave to appeal.
On April 2, 1947, the Perry Coal Company sold a 22 1/2-acre tract of land near Coulterville to Ralph Jones, plaintiff's father, for $400. The land had been used for coal-mining operations from sometime prior to 1918 until 1944 or 1945. In 1946 all of the buildings had been removed. At the time of the sale to Jones the property was not being used, and all that remained from the mining operations were a pond, the main mine shaft, an air shaft and the slack pile involved in this case. The slack pile was described as being approximately 300 feet long, 200 feet wide at one end and about 50 feet wide at the other and varying in height, at various points, from five to six feet. Through several corporate mergers the assets of Perry Coal Company were acquired and its liabilities assumed by defendant.
Plaintiff was born on November 27, 1948, more than a year after her father bought the property. On September 11, 1953, when she was almost five years old, she went with her father in his truck to an area next to the slack pile where he was going to pick up some scrap iron. She took off her shoes, got out of the truck and walked on the slack pile. At a point where the slack pile was approximately five feet high, an area approximately five to six feet in width caved in and she fell into a fire burning at the bottom of the pile. Plaintiff suffered burns which required years of medical treatment and 56 surgical procedures.
In reversing the judgment, the majority of the appellate court correctly concluded (see Anderson v. Cosmopolitan National Bank, 54 Ill.2d 504) that the principles applicable to this case are set forth in sections 352 and 353 of the Restatement of the Law of Torts (Second) (hereafter Restatement), which state:
"Sec. 352. Dangerous Conditions Existing at Time Vendor Transfers Possession.
Except as stated in sec. 353, a vendor of land is not subject to liability for physical harm caused to his vendee or others while upon the land after the vendee has taken possession by any dangerous condition, whether natural or artificial, which existed at the time that the vendee took possession.
Sec. 353. Undisclosed Dangerous Conditions Known to Vendor.
(1) A vendor of land who conceals or fails to disclose to his vendee any condition, whether natural or artificial, which involves unreasonable risk to persons on the land, is subject to liability to the vendee and others upon the land with the consent of the vendee or his subvendee for physical harm caused by the condition after the vendee has taken possession, if
(a) the vendee does not know or have reason to know of the condition or the risk involved, and
(b) the vendor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to believe that the vendee will not discover the condition or realize the risk.
(2) If the vendor actively conceals the condition, the liability stated in Subsection (1) continues until the vendee discovers it and has reasonable opportunity to take effective precautions against it. Otherwise the liability continues only until the vendee has had reasonable opportunity to discover the condition and to take such precautions." (Restatement (Second) of Torts secs. 352, 353 (1965).)
The majority held that plaintiff's complaint, which alleged five acts of negligence (see 16 Ill. App.3d 301, 304), failed to allege "an actionable breach of the duty owed by defendant to plaintiff * * *." (16 Ill. App.3d 301, 305.) It pointed out that although the record shows "that the true basis of liability of the defendant was injected into the case in its early stages" (16 Ill. App.3d 301, 306), making it clear that plaintiff "was thus made aware of the deficiencies of the complaint, at no time did she seek to amend to allege a proper cause of action under section 353" (16 Ill. App.3d 301, 306). The majority stated further that it "must therefore assume that plaintiff's complaint was not amended because ...