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Cooper v. Meyer

OPINION FILED JUNE 23, 1977.

PENNY COOPER, PLAINTIFF-APPELLANT,

v.

JAMES R. MEYER ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Lawrence County; the Hon. CLARENCE E. PARTEE, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

This is an appeal taken by the plaintiff, Penny Cooper, from the dismissal with prejudice of count III of her amended complaint in the circuit court of Lawrence County. The dismissal was granted in response to the defendant, James R. Meyer's, motion to dismiss for failure to state a cause of action.

There is but one issue before this court at this time in this case. The plaintiff seeks the reversal of the trial court's dismissal of count III of the amended complaint. The plaintiff contends that the trial court erred in determining "that a cause of action could not be stated against a parent when the actual injury was inflicted by a minor." However, the actual holding of the trial court was "that said count III of the amended complaint does not state a cause of action under the present status of the Illinois law." We are in this appeal dealing with but count III of the amended complaint and the allegations contained therein.

The facts which brought this matter before the court are as follows. The plaintiff went to the defendant's house to advise him that a child of hers had been struck by a "brick bat" thrown by a minor child of the defendant. The defendant was not home at the time, but Danny Meyer, an older but still minor child of the defendant, was at home and the plaintiff informed him of the incident. Danny Meyer, it is alleged, then flew into a rage and wilfully and maliciously attacked the plaintiff by striking her with his hands. She was knocked to the ground. This attack by Danny Meyer resulted in a fractured jaw to the 28-year-old plaintiff as well as other less serious injuries.

Count III of the amended complaint in substance alleges:

1. On November 4, 1975, plaintiff called at the residence of this defendant to advise him his younger son (not a party, having been dismissed out) had thrown a "brick bat" at plaintiff's child.

2. On said date, defendant was not present on said premises, but his other son, Danny Meyer (a remaining defendant), was.

3. That Danny Meyer wilfully and maliciously assaulted plaintiff at said time and place.

4. At said time and place Danny Meyer was a minor under the age of 19 years.

5. That this defendant, James R. Meyer, was negligent in that:

(a) He knew Danny Meyer had propensities to attack persons.

(b) Notwithstanding the said propensity of Danny Meyer, defendant failed to:

(1) "Warn the public at large of the potential danger to health, safety or property rights constituted by ...


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