APPEAL from the Circuit Court of Lake County; the Hon. FRED H.
GEIGER, Judge, presiding.
MR. PRESIDING JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 22, 1977.
The plaintiffs appeal from the order of the trial court dismissing their second amended complaint against the Township of Libertyville and the County of Lake. The defendant, Village of Libertyville, appeals from the trial court's order denying its motion to dismiss the plaintiffs' third amended complaint against the village only. The cases were consolidated for purposes of this appeal.
The action is one for personal injury brought by the parents of a two-year-old child for injuries the child suffered when he fell into a drainage ditch near his home. He was rescued but suffered permanent brain damage before he could be revived. The parents of the injured child, Jerry James Corcoran and Linda Corcoran, are also suing in their own behalf for emotional distress caused to them by the hopeless condition of their child.
The second amended complaint named the Village of Libertyville, the Township of Libertyville and the County of Lake as defendants, alleging that the ditch in question was owned by the Village of Libertyville (allegedly being within the municipal boundaries) and was maintained by the county and the township. The complaint was in four counts, count I being based on negligence, count II on willful and wanton conduct and count III being couched in language intended to bring it within the doctrine of the case of Kahn v. James Burton Co. (1955), 5 Ill.2d 614, which modified somewhat the requirements of the attractive nuisance doctrine. Count IV alleged injury to the parents of the injured child through emotional distress caused to them by the permanent damage incurred by their child. Neither parent was present when the child fell into the ditch. The father discovered him completely immersed in the water of the ditch about 100 yards from their home.
The defendants all filed motions to dismiss the second amended complaint on the ground it failed to state a cause of action against them. The county and the township asserted they had no control over or possession of the ditch, hence owed no duty to the plaintiffs; that the willful and wanton language of count II was mere rhetoric, without factual foundation and that in any event they were immune to the action brought by the plaintiffs under the Tort Immunity Act (Ill. Rev. Stat. 1975, ch. 85), notwithstanding that they were partially insured against liability. They also contended the action for emotional distress was not cognizable under Illinois law under the limited theory of recovery in such cases.
The trial court, after considering the arguments and briefs of counsel, granted the motion of Lake County and Libertyville Township to dismiss the second amended complaint as to them. As to the Village of Libertyville, the court denied its motion to dismiss and allowed the plaintiffs to file a third amended complaint. The third amended complaint was prepared under the restrictive order of the trial court, striking count II (willful and wanton conduct) and count IV (for emotional distress of the parents), of the second amended complaint. The third amended complaint, directed to the Village of Libertyville only, contains only two counts. Count I is couched in terms of ordinary negligence, alleging a duty toward the child through ownership and control of the land through which the ditch ran, and a breach of duty by the following negligent acts of the defendant, which for the purposes of this decision we set out here in full:
"(a) Negligently and carelessly maintaining this ditch so that it would not properly drain off the water;
(b) Negligently and carelessly allowing this ditch to become dangerous by its irregular bank, by the slope of said bank, by the rubbish, including boards, trees and refuse scattered on the bank, approaches of the ditch and the ditch itself;
(c) Negligently and carelessly permitting the filling in of part of said ditch, which increased the hazards in the remaining portion of the ditch;
(d) Negligently and carelessly failing to make safe for those persons lawfully on said property an artificial, dangerous condition existing on their land;
(e) Negligently and carelessly failing to warn the plaintiff of the dangers of said unnatural conditions existing on their land;
(f) Negligently and carelessly allowing the bed of said ditch to become irregular and pocketed which allowed water to collect and remain in said ditch;
(g) Negligently and carelessly failing to inspect said ditch and the approaches thereto thereby permitting it to remain in an unnatural and dangerous condition."
Count II of the third amended complaint invokes the doctrine of attractive nuisance by incorporating therein several paragraphs regarding a dangerous condition of foreseeable harm to children therefrom, that children were known to frequent the area, that the child in question was of tender years, and that the expense of guarding against harm to children playing in the area was slight in comparison to the harm they were exposed to. The details which exemplified the dangerous condition were merely summed up in one paragraph, stating them as: "a deceptively steep, unguarded and dangerous slope, which was eroded and caved in; an irregular embankment littered with debris and rubbish; an unnaturally pocketed bed, which ...