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Bazos v. Chouinard

OPINION FILED MAY 21, 1981.

KRIS BAZOS ET AL., PLAINTIFFS-APPELLANTS,

v.

DONALD CHOUINARD ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Kane County; the Hon. MARVIN DUNN, Judge, presiding.

MR. JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:

The plaintiffs, Kris Bazos and her father and next friend, James Bazos, appeal from an order of the circuit court of Kane County dismissing their amended complaint against defendants, Donald and Joan Chouinard, for personal injuries suffered by Kris Bazos on the defendants' property.

The plaintiffs filed their amended complaint on September 19, 1978, consisting of two counts. In count I plaintiffs set forth that on September 29, 1968, the defendants had permitted a picnic table and bench to be placed in close proximity to a low extending limb of a tree; that they permitted numbers of minor children, including Kris Bazos, to play thereon and to jump from the table to the limb to swing; that the defendants knew or should have known that this dangerous activity had gone on for some period of time prior to the occurrence in question.

The complaint in paragraph eight set forth:

"That it then and there became the duty of the Defendants to exercise ordinary care in and about the management, use and control of said picnic table and bench to the end of preventing minors, including Plaintiff, from using said picnic table and bench to jump and swing from the tree limb in Defendant's [sic] yard."

The complaint set forth that on or about September 29, 1968, Kris Bazos, a 10-year-old, with the knowledge and permission of the defendants was engaged in this activity and fell and fractured her arm. The complaint enumerated six acts of negligence, including the failure to remove the picnic table, the failure to exercise any supervision of the children's activities, and the failure to prohibit the children from jumping from the picnic table to the tree limb.

Count II set forth the father's claim for his daughter's necessary medical expenses.

The defendants challenged the amended complaint by a motion to strike, stating that the amended complaint was insufficient in law and that it failed to allege any duty actionable under Illinois law. On May 6, 1980, the court granted said motion.

The issue presented for our consideration is whether the alleged failure to supervise or prevent minor children from engaging in an allegedly dangerous play activity on their property violated a legal duty upon which an action for negligence may be based.

It is the position of the plaintiffs that they have alleged sufficient facts upon which to base the existence of a duty on the part of the defendants. The defendants state that there is no special obligation upon them to supervise the child's play activity. They also contend that due to the plaintiff's age she was able to appreciate the risks and dangers of her activities, and therefore the alleged dangerous condition provided no basis upon which they could be liable.

Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 126 N.E.2d 836, established the rule in Illinois that the possessor of land is liable for injuries which children sustain when the injury is caused by a dangerous condition on the property and the owner knew or should have known that young people habitually frequent the area. Kahn, at page 625, stated:

"It is recognized, * * * [that] where the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children. In such cases there is a duty upon the owner or other person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it."

The import of the Kahn case was discussed by the supreme court in Corcoran v. Village of Libertyville (1978), 73 Ill.2d 316, 326, 383 N.E.2d 177:

"As Kahn sets forth, a dangerous condition is not that which creates an unreasonable risk of harm to the general class of persons who might frequent the premises. It is one which is likely to cause injury to the general class of children who, by reason of their immaturity, might be incapable of appreciating the risk involved. The essence of the Kahn principle is to impose a duty upon those owning or occupying land to remedy conditions ...


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