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Wintercorn v. Rybicki

OPINION FILED OCTOBER 26, 1979.

RICHARD WINTERCORN, A MINOR, BY JOSEPH WINTERCORN, HIS FATHER AND NEXT FRIEND, PLAINTIFF-APPELLANT,

v.

DANIEL RYBICKI ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. JEROME LERNER, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from an order granting summary judgment in favor of defendant Edward Rybicki. On appeal he contends that the trial court erred in granting summary judgment where a dispute as to material facts remained.

The following pertinent facts are contained in the record.

Plaintiff originally filed a two-count complaint against defendant Daniel Rybicki. In count I he alleged that as he was conversing and playing with two of his friends on July 18, 1973, he was approached by Daniel Rybicki. Plaintiff further alleged that Daniel Rybicki, after exchanging verbal insults with plaintiff's companions, committed "one or more of the following careless and negligent acts or omissions":

(a) Picked up at random a metal object to throw at the plaintiff and those individuals with whom he was playing;

(b) Failed to warn the plaintiff that he was about to throw the said metal object at the plaintiff's head;

(c) Threw the said metal object at the plaintiff in an indiscriminate manner.

As a result of this conduct defendant alleged that he was struck in the right eye and greatly injured. Plaintiff alleged that at the time of the occurrence he was 12 years old and was free of contributory negligence.

In count II plaintiff repeated the allegations of count I, claiming additionally that defendant's conduct was of a wilful and wanton character.

Plaintiff subsequently amended his complaint to add count III against defendant Edward Rybicki, father of Daniel Rybicki and appellee herein. In count III plaintiff alleged that on the date of the occurrence described in counts I and II, Edward Rybicki "was aware of the violent tendencies of his son or, in the exercise of ordinary care, should have been aware." Plaintiff further alleged in count III that Edward Rybicki was negligent in that he:

(a) Failed to supervise or provide supervision of the defendant, Daniel Rybicki;

(b) Failed to warn the minor plaintiff and/or the minor plaintiff's parents of the violent tendency of the minor defendant, Daniel Rybicki.

Plaintiff claimed that as a direct and proximate result of Edward Rybicki's negligence he was subjected to the attack by Daniel Rybicki and suffered great injury.

Subsequently, defendant Edward Rybicki moved to dismiss count III of the amended complaint for failure to state a cause of action. Following argument on the motion the trial court struck those portions of count III which alleged Edward Rybicki's failure to supervise or negligent supervision of his son Daniel Rybicki. The trial court further ordered that Edward Rybicki answer or otherwise plead to the remaining allegations (failure to warn) of count III. In his answer Edward Rybicki denied that Daniel Rybicki and plaintiff exchanged verbal insults. Rather, he alleged that plaintiff "aggressively insulted, harassed, threatened, and attacked" Daniel Rybicki. Edward Rybicki further denied that his son possessed "violent tendencies." He admitted that he gave no warnings to plaintiff or plaintiff's parents with respect to his son's ...


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