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Cope v. Doe





Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Kane County, the Hon. Marvin D. Dunn, Judge, presiding. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 29, 1984.

Plaintiff, Judith Cope, administrator of the estate of her son, David Askew, brought a wrongful death action in the circuit court of Kane County. The complaint named several defendants; however, the trial court, by agreement of the parties, dismissed all defendants except Western Land Planning Company and Kenneth Ringbloom. The jury returned a verdict in favor of plaintiff and the trial court entered judgment on the verdict. The appellate court, by order, reversed, holding that defendants were entitled to a judgment n.o.v. because they owed no duty to plaintiff's decedent as a matter of law. (113 Ill. App.3d 1167 (Rule 23 order).) Thereafter, this court allowed plaintiff's petition for leave to appeal. 87 Ill.2d R. 315.

Because of the results reached, we need only consider plaintiff's contention that the appellate court erred when it ruled defendants owed no duty to plaintiff's decedent as a matter of law.

Defendant Ringbloom, a builder and developer, is president of defendant Western Land Planning Company. Defendants designed and constructed an apartment complex in Kendall County known as Shore Heights Village. According to the testimony of Ringbloom, the land upon which the complex is built is owned by Western Land Planning Company and Ringbloom, as president, has the power of direction and control over the property. A subsidiary of Western Land Planning Company, however, maintained and managed the complex.

Defendants designed Shore Heights Village so as to attract families with children. It had several amenities, including a children's playground, a dog-run area, a swimming pool, tennis courts>, a chip and putt golf course, and a club house with pool tables. Defendants also constructed a retention pond to collect and retain surface water from the complex. The retention pond was approximately 25 yards long by 15 yards wide, and was located 100 yards west of the apartment buildings. The building and zoning administrator for Kendall County, George Bell, testified that, at the time the complex was built, the construction of a retention pond did not require approval by the Kendall County authorities. However, prior to construction, defendants submitted the architectural plat pertaining to the retention pond to the building and zoning board of Kendall County. Bell stated that an engineer determined that the retention pond was properly designed and the board approved the plat.

Ringbloom, called by plaintiff as an adverse witness, testified that the retention pond was constructed primarily for drainage purposes and that it was not described as a recreational facility to prospective tenants. Ringbloom stated that he never saw children playing on the pond but he did see children fishing in it. Ringbloom indicated he had no objection to children fishing there but that the pond was not to be used as a swimming area. Ringbloom, in response to plaintiff's question as to whether the retention pond posed a danger to children, answered, "Well, any body of water is a danger of children." He also stated that no precautions were taken to prevent children from going near the pond "other than the manager [of the complex] to warn the parents to keep their children away from the retention pond."

Plaintiff testified that she and her then-husband Edward Cope went to Shore Heights Village to inquire about renting an apartment. She stated that the manager, Phillip Paninski, showed them an apartment and also described the facilities available to the tenants. She stated that Paninski called her attention to the retention pond and he claimed "it was a place the children could go and fish, and that sometimes they ice skated there in the winter." Plaintiff told Paninski that she and her family "did some serious fishing" and inquired as to what type of fish could be caught in the pond. Plaintiff related that Paninski told her people did not really catch anything, "just some suckers but the little boys like to go over there." In June of 1976, plaintiff, along with Mr. Cope and David, moved into an apartment at Shore Heights Village. Plaintiff indicated she had to drive past the retention pond to get to her apartment and that she always saw children playing on or near the pond. When the pond was frozen, she frequently saw children chasing their dogs on the ice, ice skating, walking and sliding on the ice, and kicking pieces of wood around on the ice.

Several ex-residents of Shore Heights Village also testified that young children frequently played by the pond during the summer and winter. One ex-resident, James Stolp, testified that, when he rented an apartment at Shore Heights Village, Paninski claimed that the retention pond could be used for fishing. Stolp also stated that, when the pond was frozen, he snowmobiled there. Marvin Placek, another ex-resident, claimed that Paninski told him that the retention pond was used for fishing during the summer and ice skating in the winter. In fact, Placek indicated the manager stated that he even fished at the pond himself.

Paninski testified that he remembered meeting the Copes for the purpose of renting an apartment. Although he could not remember verbatim their conversation, he claimed there was no discussion regarding the retention pond. Paninski also stated that he gave a standard promotional speech to every prospective tenant and he never represented that the retention pond was used for recreational purposes. Paninski further indicated he had seen children playing at the pond.

On March 5, 1977, David, age seven, and two friends, Scott Hartness and Russell Burkitt, were playing at the Hartnesses' apartment, which was located directly above the Copes' apartment. The three boys then went outside to the front yard of the apartment building for awhile before departing to the club house. After playing pool, the boys went to the retention pond to play. On that day, the part of the pond closest to the apartment buildings was approximately one-third covered with ice. The portion of the pond furthest from the complex was open water which, admittedly, could easily be seen.

The evidence pertaining to the events culminating in David's death is conflicting. Russell testified that when they got to the pond he and Scott walked to the edge of the ice, about one foot from where the water began. He stated that he and Scott kicked three pieces of wood, about two feet long, into the water and watched them float back towards the ice. Russell indicated that David was closer to the bank of the pond, approximately 10 yards away from them. Thereafter, Scott retreated to approximately one foot from the bank. David then walked over to Russell, who was still standing on the ice about one foot from the open water. While Russell and David were standing still, about one and a half feet from each other, the ice gave way and the two fell into the water. He stated that the ice was about two and a half inches thick at the point where it cracked. Russell was able to find a large piece of ice to keep him afloat. He then grabbed David's coat collar, but lost his grip. At this time, Scott ran onto the bank of the pond and yelled for David to swim. While Russell was attempting to climb out of the water, Scott walked onto the ice. When the two met, they fell through the ice but both managed to pull themselves to safety. David, however, was unable to climb out of the water. Russell then ran to the Hartness apartment to get help.

Scott testified that when they arrived at the pond he remained on land and played while David and Russell went approximately 50 feet out onto the ice. He stated that David and Russell were only about 30 feet from the open water. Scott claimed that David and Russell were kicking a board, a three-foot long two by four, to each other but that they were not kicking it in the direction of the water. Scott also stated that there were no other pieces of wood on the ice. Scott later joined Russell and David on the ice and began sliding with his feet. Scott claimed that at that point, he was approximately 10 feet from the edge of the pond. He stated that, although the three could see the open water, there was no water near them. Scott then indicated that the ice beneath David and Russell cracked and the two fell into the water. Scott saw Russell crawling out of the water and David attempting to swim to safety. Scott then started to go further out onto the ice to help David. When Scott and Russell met, however, they fell through the ice. Both Scott and Russell managed to climb to safety. Thereafter, Scott told Russell to go back to his apartment and get his father, John Hartness. Russell, however, was not familiar with the complex, and proceeded in the wrong direction. When Scott noticed Russell was lost, he ran to his apartment. Scott told his father what had happened, and Mr. Hartness got dressed and went downstairs to the Copes' apartment. He related Scott's story to plaintiff and her husband and they left for the pond in the Copes' jeep. When they got to the pond, Mr. Hartness could not see David. He jumped into the water and moved his hands and feet around to feel for David. He was unable to find David and, when the water level reached his shoulders, he climbed out of the pond. In the meantime, firemen and police officers arrived at the scene. By that time, however, David had drowned.

The jury returned a verdict in favor of plaintiff in the amount of $150,000 for compensatory damages for the death of her son. The jury also answered special interrogatories, finding plaintiff and the decedent's father, "David Askew, Sr.," not guilty of contributory negligence. The appellate court reversed, holding that the pond was an obvious danger and therefore defendants owed no duty to plaintiff's decedent as a matter of law.

Prior to this court's decision in Kahn v. James Burton Co. (1955), 5 Ill.2d 614, the "attractive nuisance" doctrine governed the liability of owners or parties in possession or control of premises upon which a trespassing child was injured. Under the doctrine, liability was imposed for injuries to the child caused by a condition which attracted him to defendant's premises. In such cases, the courts> employed the fiction that the child was an invitee because the defendant, by maintaining a condition that was attractive, enticed the ...

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