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Chapman v. Fritzche

OPINION FILED JUNE 1, 1978.

CAROL ANN CHAPMAN, ADM'R OF ESTATE OF RANDALL SCOTT CHAPMAN, DECEASED, PLAINTIFF-APPELLANT,

v.

CHARLES FRITZCHE ET AL., INDIV. AND D/B/A FRITZCHE'S ESTATES, DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of McHenry County; the Hon. CHARLES S. PARKER, Judge, presiding.

MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:

This appeal arises out of a wrongful death action. The jury returned a verdict in plaintiff's favor but awarded only one dollar in damages. On motion of the defendant the trial court granted a directed verdict in favor of the defendant.

The plaintiff is the mother and administrator of the estate of Randall Scott Chapman, her five-year-old son, who drowned when he fell through the ice in Lily Lake, a small lake in McHenry County.

The land adjacent to the lake is owned by the defendants. However, they do not own the lake. The plaintiff, her husband and her children rented a small house on the shore of Lily Lake from the defendants around December of 1969. There was testimony to the effect that there were picnic tables at the beach along the lake and space for parking. There was also some playground equipment, including teetertotters. There were two slides out in the lake, one about six feet high, the other about eight feet high. The testimony was somewhat inconsistent on the point but it appears that the slides were about 50 to 60 feet out from the shore, at the time of Randy Chapman's death.

On November 23, 1970, Mrs. Chapman went to work as usual. The babysitter was late in arriving and the older sister, Patty, age seven, stayed home with Randy and another small brother. Their mother had warned them not to play on the ice, which had formed part way out into the lake, there being open water however, a little beyond the end of the bigger slide. Exactly how far out beyond the end of the slide the water was frozen is not clearly established by the testimony. Patty testified the ice was "out in front" of the bigger slide, that is, beyond it. Mrs. Chapman testified that the ice had started to freeze the night before and in spots you could see water and there was water on top of the ice, near the big slide.

Patty, who was the only actual eyewitness, testified that at noon, when their mother came home, she gave them permission to go outside to play but told them not to go on the ice. In the afternoon, Patty, Brian and Randy went out to play. First they played in the yard; then they moved to the beach. After while they began to play on the ice beyond the shoreline. They had a ball and during the course of throwing the ball to each other, the ball was overthrown or missed by one of them and went out into the lake, landing somewhere beyond the frozen part of the lake in the vicinity of the bigger slide. Randy went out to get it but could not reach it. According to Patty, Randy climbed up onto the slide and came down the chute and sitting Indian-fashion reached out, but could not reach the ball. He then went back and tried to go round one end of the slide, holding on to it as he walked toward the ball. Suddenly, the ice gave way and Randy fell into the water and was drowned.

There was considerable uncertainty in the testimony of police officer Vandervalle, who pulled Randy's body from the water, as to exactly how far the body was from the end of the slide when he pulled it out. He testified that he started to walk out on to the ice, but it cracked under him so he went back to shore and got a picnic table and was able to get out as far as the end of the slide by using the picnic table, turned upside down to spread the weight. He was still not able to reach the body when he got to the end of the rope he had tied around his waist and which another officer was holding at the other end. From his testimony it would appear that the officer holding the loose end of the rope was at the slide and that Officer Vandervalle used the length of a 50-foot rope beyond the slide and then was still short of reaching the boy and had to use another 10 feet more to reach him. This would place the body about 50 to 60 feet beyond the slide. However, since the precise point where the officer holding the loose end of the rope was standing in relation to the length of the slide was not clear, it is not certain whether the boy's body was found 10 feet beyond the slide, or 50 feet beyond it, and whether the testimony referred to the beginning of the slide, or the further end or chute. In any event, however, it appears to have been the testimony of the officer that Randy's body was found at least 10 feet and possibly 50 feet beyond the end or chute of the slide, and Officer Vandervalle testified he had to stand on the picnic table to avoid breaking through the ice, apparently there was ice of some sort up to that point, although the testimony is not clear because Patty testified there was open water beyond the end of the slide.

Herbert Fritzche testified that his mother had owned certain property adjacent to the lake and when she passed away in 1970 he became executor of her estate. Previous to that he had helped out in the summer time at the concession stand, but no charge had ever been made by the Fritzches for admission to the lake and beach area. In 1970, the defendants owned some of the land, but not all of the land encompassing the lake. They did own the beach portion, the equipment, such as the picnic tables, teetertotters and swings, in the picnic area, and the slides, which were placed a little distance out into the lake. They also had a raft in the lake and a rope with floats designating a swimming area. The testimony of Mr. Fritzche's daughter was excluded because defense counsel had not listed her as a witness in pretrial discovery. He offered her testimony just before trial, having learned that she had knowledge about the slides being removed from the water in October of 1970; however, her testimony was objected to as being in violation of discovery rules and the objection was sustained.

The defendants admitted ownership of the slides but their maintenance man, George Ross, testified that he believed the slides had been removed from the water in October 1970, as was the annual custom. There was no explanation of how they got back into the water, if they had actually been removed.

Mr. Ross testified he had seen the Chapman children on the ice previous to the drowning and had told them to get off the ice and his fellow workman had escorted one of the boys — he believed it was Randy — back to the Chapman house. Later he had again seen one of the boys he believed to be Randy on the ice and again his fellow worker had taken the boy home.

At the outset of this opinion, we must dispose of a technical objection to this appeal raised by the defendants. The defendants contend that the appeal must fail on procedural grounds because the plaintiff failed to properly preserve any questions for review since she failed to set out the particular grounds for review in her post-trial motion. Moreover, defendants contend the appeal should not be heard, because after the trial court had granted the motion for a directed verdict and entered its order accordingly, the plaintiff failed to file a subsequent post-trial motion to review the judge's order granting the directed verdict.

It appears that at one time it was considered to be mandatory that a post-trial motion be filed, objecting to a directed verdict, before an appeal could be filed from the order directing the verdict (Malcomson v. Bennett (1966), 69 Ill. App.2d 281 (abstract); Farnsworth v. The Shops Building (1966), 77 Ill. App.2d 44). However, a subsequent opinion of this court in Larson v. Harris (1966), 77 Ill. App.2d 430, reversed the Malcomson opinion and the Illinois Supreme Court settled the matter, holding that a post-trial motion was not required in Keen v. Davis (1967), 38 Ill.2d 280. The court said:

"Supreme Court Rule 240, effective January 1, 1967, reads: `The order of the court granting a motion for a directed verdict is effective without any assent of the jury.' It follows the prevailing trend of doing away with useless form and, as noted by the committee comment, the new rule `eliminates an archaic and futile ceremony.' We see nothing in the statute to indicate a legislative intent that a post-trial motion be filed after a directed verdict." 38 Ill.2d 280, 282.

• 1 We hold, therefore, that the failure to file a post-trial motion objecting to the order directing a verdict in the defendants' favor was not fatal to this appeal. This, we think, also disposes of the contention that the post-trial motion was too general, since the appeal itself addressed the substantive issues to be decided ...


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