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Fuller v. Justice





Appeal from the Circuit Court of Winnebago County; the Hon. David F. Smith, Judge, presiding.


Plaintiff, Brenda Fuller, a minor, appeals from the order of the circuit court of Winnebago County granting defendant's motion for summary judgment. Plaintiff's count I alleged wilful and wanton actions or omission of defendant which caused plaintiff's injuries, and count II was based on a negligence theory patterned on Kahn v. James Burton Co. (1955), 5 Ill.2d 614. After defendant filed an answer and depositions were taken, defendant filed a motion for summary judgment. Plaintiff filed her response to defendant's motion, and the court held a hearing on the motion. By letter opinion, the court granted defendant's motion specifically ruling that "[u]pon review of pleadings, interrogatories, and depositions, the court finds that the plaintiff had to appreciate the risk of standing on the log." The court entered an order granting defendant's motion. Plaintiff filed a timely notice of appeal. We affirm.

On December 14, 1980, in the afternoon, plaintiff was playing with defendant's daughter, Cecilia, at defendant's residence. Plaintiff's family and defendant were neighbors living across the street from one another. At the time of the injury, Cecilia was eight and plaintiff was 14 years old. When she was very young, plaintiff had contracted spinal meningitis. As a result of the illness, plaintiff remained out of school for two years, but she never missed a grade level. While at the time of trial she was in a grade two years younger than her age group, she maintained a "C" average in school and had never been set back nor had she failed to pass any grade level. Plaintiff testified she had previously suffered seizures (epilepsy) and was taking Phenobarbital and Dilantin during the period surrounding the day she was injured.

In her deposition, plaintiff testified that on the day of the accident Cecilia went inside the house to go to the bathroom, and then called to her from inside the house to come to the bedroom window. Responding to her friend's call, plaintiff walked to the window and on her own initiative stood on a tree stump that was positioned directly under the window. Plaintiff testified that the round part of the log was on the ground and she noticed the dirt underneath the log was uneven prior to stepping on top of it. She also testified she noticed the bottom of the log had no bark and was smooth. While standing on the log, she kept both feet on the log's surface and held onto the windowsill. She was on the log for several minutes and had concluded her conversation with Cecilia when she fell. Plaintiff did not know why the log moved, but she testified her weight was centered and that she did not shift her weight or move her feet prior to the fall. No one else observed plaintiff when she fell.

Plaintiff stated she had never before sat or stood on a log or any other similarly round object and was not aware that logs could roll. As a result of the fall, plaintiff was operated on and pins were placed in her arm. The injury precludes her participation in some sports, and she was excused by her doctor from gym activities during both 1981 and 1982.

Joan Justice, defendant's wife, in her deposition testified that she did not see plaintiff fall, but went outside to help plaintiff and found her on the ground three to four feet from the house. After the fall, the log was between plaintiff and the house. Justice said the two logs on her property came from two front-yard trees which were cut down. The family used these stumps as outdoor seats in the summertime. In addition, Justice testified that neighborhood children periodically would come on to her property and would play on the logs, and that she and her husband would tell them to get off the stumps because "[w]e wouldn't want them to fall or hurt themselves." No one was ever injured on these stumps prior to plaintiff's fall.

The deposition testimony of defendant mirrored his wife's statement that neighborhood children frequented the premises: "just about every kid in the neighborhood has stood on them at one time or another." Defendant stated he thought plaintiff had stood on the stump prior to the day she was injured. Defendant testified he had to order the kids to get off the stump on numerous occasions and had seen them jump off the logs in the past, but had never seen children roll the logs.

• 1 Plaintiff frames the issue before this court as "whether a genuine issue of material fact exists as to whether the minor plaintiff appreciated the specific risk involved which would preclude entry of summary judgment?" Plaintiff challenges defendant's attempt in his brief to broaden the issues here beyond the narrow issue described by plaintiff. Plaintiff implies that this court cannot discuss whether the stump was a dangerous condition or whether young children habitually played on the logs because the trial court did not expressly rule on these issues. However, an appellate court can affirm the trial court on any basis that appears in the record. (Stern v. Stern (1982), 105 Ill. App.3d 805, 809, 434 N.E.2d 1164, 1168; Illinois Bell Telephone Co. v. Dynaweld, Inc. (1979), 70 Ill. App.3d 387, 394, 388 N.E.2d 157, 162.) Since these points were raised at the trial level, they were valid bases for affirming the trial court's order even though the trial judge did not specifically discuss these points in that order.

• 2-3 Certain well-settled principles apply to trial court rulings on summary judgment motions. The sole function of the court reviewing the trial court's entry of summary judgment is to determine whether the lower court correctly ruled that no genuine issue of material fact had been raised, and if none was raised, whether judgment was correctly entered as a matter of law. (Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App.3d 17, 414 N.E.2d 865.) If a genuine issue of material fact exists, a motion for summary judgment may not be granted. Manahan v. Daily News-Tribune (1977), 50 Ill. App.3d 9, 365 N.E.2d 1045.

• 4-7 In determining whether there is a genuine issue of material fact, a trial court is required to consider the pleadings and admissions, affidavits in support of and in opposition to the motion, and any other evidence before the court. (Manahan v. Daily News-Tribune (1977), 50 Ill. App.3d 9, 365 N.E.2d 1045.) Further, the trial court must construe the pleadings and affidavits most strictly against the moving party and most liberally in favor of the opponent in ruling on the motion. (Bard v. Harvey (1979), 74 Ill. App.3d 16, 392 N.E.2d 371.) Since the opposing party has the right to a trial if there is a genuine issue of fact, the right of the moving party to summary judgment must be clear and free of doubt, and the granting of the motion cannot be a matter of judicial discretion. (Manahan.) While a party against whom a motion for summary judgment has been filed need not prove his case at this preliminary stage, he is required to present some factual basis that would arguably entitle him to a judgment under the applicable law. (Martin v. American Legion Post No. 784 (1978), 66 Ill. App.3d 116, 383 N.E.2d 672.) Facts unrelated to the essential elements of the plaintiff's cause of action are immaterial, and regardless of how sharply controverted, their presence in the record will not warrant denial of a motion for summary judgment. (Mid States Vending Service, Inc. v. C.A.P., Inc. (1977), 45 Ill. App.3d 947, 360 N.E.2d 448.) With these principles in mind, we consider the merits of plaintiff's appeal.

• 8 Count II of plaintiff's complaint asserts that defendant breached a duty owed to plaintiff on the basis of the rule established by the Illinois Supreme Court in Kahn v. James Burton Co. (1955), 5 Ill.2d 614. In Kahn, the court held that the possessor of land is liable for injuries sustained by children 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. This decision and its progeny have created a four-pronged test for the imposition of liability. A defendant landowner may be liable for harm to children on his or her premises if the plaintiff shows that (1) the landowner knew or should have known that the children habitually frequented the premises; (2) a dangerous condition was present on the land; (3) the dangerous condition was one that was likely to cause injury to children because of their inability to appreciate the risk involved; and (4) the burden of remedying the condition was slight when compared with the risk involved. Kahn; see also Corcoran v. Village of Libertyville (1978), 73 Ill.2d 316; Niemann v. Vermilion County Housing Authority (1981), 101 Ill. App.3d 735, 428 N.E.2d 706; Whitcanock v. Nelson (1980), 81 Ill. App.3d 186, 400 N.E.2d 998.

• 9-10 To ascertain if a duty exists, the threshold determination in any application of the Kahn test must be whether plaintiff has established the existence of a dangerous condition on the land. For purposes of this test, a dangerous condition is a condition which is likely to cause injury to children, who, by reason of their immaturity, might be incapable of appreciating the risk involved. (Corcoran v. Village of Libertyville (1978), 73 Ill.2d 316.) Thus, the conditions might be dangerous for purposes of this analysis even though the condition would not involve an unreasonable risk of harm to adults. (Corcoran.) However, if the condition involved obvious risks which children generally would be expected to appreciate and avoid, the landowner is under no duty to remedy the condition. (Corcoran; Pasierb v. Hanover Park Park District (1981), 103 Ill. App.3d 806, 431 N.E.2d 1218; Whitcanock v. Nelson (1980), 81 Ill. App.3d 186, 400 N.E.2d 998.) This is true even where the owner or occupier of land knows that children frequent the premises. As a landowner is not an insurer of the safety of children, he is not required to guard against the ever present possibility that children will injure themselves on common or obvious conditions. Corcoran; Driscoll v. C. Rasmussen Corp. (1966), 35 Ill.2d 74; Bonamie v. Welsh (1981), 95 Ill. App.3d 349, 420 N.E.2d 243; see also Feldscher v. E & B, Inc. (1983), 95 Ill.2d 360.

• 11 Applying the foregoing principles of law to the case at bar, we conclude that the stump did not constitute a dangerous condition on the land. In Corcoran v. Village of Libertyville (1978), 73 Ill.2d 316, the two-year-old child fell into a ditch in a park near his home and suffered severe brain damage. In concluding that the ditch did not constitute a dangerous condition, the Illinois Supreme Court stated that the plaintiffs had failed to sustain their burden of alleging sufficient facts describing the condition to enable the trial court "to conclude that the condition exposes children to risks greater than those which normally attend their daily lives." (73 Ill.2d 316, 328.) For liability to attach, the Corcoran court held, the cause of injury must be "a dangerous condition on the premises," and not merely a condition capable of causing injury. (73 Ill.2d 316, 326.) In Bazos v. Chouinard (1981), 96 Ill. App.3d 526, 529, 421 N.E.2d 566, 568, this court recently reiterated the principle that an instrumentality or product does not become inherently dangerous merely because there is an abuse of it, or it is used for a wrongful purpose. (See also Donehue v. Duvall (1968), 41 Ill.2d 377.) In practice, courts> have labeled very few conditions as inherently dangerous. Explosives and poisons are inherently dangerous (Watts v. Bacon & Van Buskirk Glass Co. (1958), 20 Ill. App.2d 164, 168, 155 N.E.2d 333, 335, aff'd (1959), 18 Ill.2d 226), but a stick (Niemann v. Vermilion County Housing Authority (1981), 101 Ill. App.3d 735, 738, 428 N.E.2d 706, 709); a sickle (Hancock v. Luetgert (1976), 40 Ill. App.3d 808, 810, 353 N.E.2d 165, 168); barbed wire (Snow v. Judy (1968), 96 Ill. App.2d 420, 239 N.E.2d 327); and a boomerang (Maramba v. Neuman (1967), 82 Ill. App.2d 95, 104, 227 N.E.2d 80, 83) are not. Therefore, we conclude, as plaintiff herself conceded, that the tree stump was not inherently dangerous.

• 12, 13 An instrumentality, though not in itself dangerous, however, may become so when joined with other nondangerous instrumentalities or surroundings. (Niemann v. Vermilion County Housing Authority (1981), 101 Ill. App.3d 735, 739, 428 N.E.2d 706, 710; Bazos v. Chouinard (1981), 96 Ill. App.3d 526, 421 N.E.2d 566; Novak v. C.M.S. Builders & Developers (1980), 83 Ill. App.3d 761, 763-64, 404 N.E.2d 918, 920.) A condition in its surrounding may so enhance the risk to unsuspecting children as to constitute a danger to them. (Bazos.) The burden rests with the plaintiff to allege facts which demonstrate that the combination of surroundings creates a risk greater than that to which children are exposed in their everyday lives. (Corcoran v. Village of Libertyville (1978), 73 Ill.2d 316, 328.) In plaintiff's complaint, she does not allege anything more than the fact that stumps were present in defendant's yard. She does not cite any other instrumentality or condition which when combined with the tree stump created a dangerous instrumentality. In the absence of facts from which the trial court here could conclude either that the stump was inherently dangerous alone or became dangerous in combination with other conditions present on defendant's property, plaintiff has failed to establish a duty under Kahn v. James Burton Co. (1955), 5 Ill.2d 614. The trial court here properly granted defendant's summary judgment motion, for a Kahn cause of ...

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