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Teter v. Clemens

OPINION FILED MARCH 8, 1985.

BRIAN TETER, PLAINTIFF-APPELLANT,

v.

ORVILLE CLEMENS ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Kane County; the Hon. Marvin Dunn, Judge, presiding.

JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

Plaintiff, Brian Teter, appeals from the dismissal of his amended complaint upon the motion to dismiss (Ill. Rev. Stat. 1983, ch. 110, par. 2-615) of defendants, Orville and Betty Clemens. Plaintiff, age five at the time of the occurrence, stated in his complaint that he sustained injury resulting from being struck in the eye with a pellet which had been fired from a pellet pump pistol by the defendants' five-year-old grandson who had come into possession of that pistol from a place alleged to be accessible to the reach of the grandson on defendants' premises.

The issues presented on appeal are whether plaintiff's three-count amended complaint stated a cause of action, and whether the trial court should have allowed plaintiff leave to amend in the event the amended complaint did not state a cause of action.

Plaintiff's three-count complaint alleged as to all counts that on June 2, 1968, plaintiff was then five years old, that Greg Clemens, the grandson of defendants, was also five years old, that defendants had previously purchased a pellet pump pistol and ammunition, and that defendants knew or should have known that their grandson came upon their premises with playmates. In count I, plaintiff predicates his cause of action against defendants for their negligent entrustment of a pellet pump pistol, alleged to be a dangerous instrumentality, to their grandson, who came into possession of the pistol from a place accessible to the reach of their grandson in their home. He alleges defendants knew or should have known their grandson was a young child not skilled in the use of a pellet pistol and a member of a class notoriously likely to misuse a pellet pistol, defendants knew or should have known he might discharge the pellet pistol and harm could come to plaintiff or other children, defendants placed the loaded pellet pistol "in such a place as to be accessible to the reach of the young grandchild," and the grandchild came into possession of the pellet pistol and discharged it on defendants' premises causing injury to the plaintiff.

In count II, plaintiff seeks to recover against defendants as owners of the premises for defendants' failure to warn him of the risk of being on their premises when their grandson was in possession of the pellet pistol which it is alleged created an unreasonable, dangerous condition on the premises. Plaintiff states he was of such an age that he was unaware of the nature of the risk should defendants' grandson come into possession of the pellet pistol, defendants did not warn him of the risk of being on their premises when their grandson was in possession of the pistol, defendants knew or should have known of their grandson's possession of the pistol, or should have taken precautions to prevent such possession, and defendants' grandson's possession of the pistol on the premises created an unreasonable, dangerous condition requiring defendants to warn plaintiff.

Count III sought to set aside a release executed by plaintiff's parents, which plaintiff now claims was obtained through the mutual mistake of fact as to the permanency of his eye injury.

Defendants' motion to dismiss was pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-615) and alleged the amended complaint was insufficient in law because plaintiff could not recover on a negligence theory and defendants had no duty to supervise the activities in question. The trial court dismissed the amended complaint without providing a basis for the order in the record provided us.

• 1 In considering a motion to dismiss for failure to state a cause of action, plaintiff's pleaded facts are assumed to be true (Collier v. Wagner Castings Co. (1980), 81 Ill.2d 229, 232, 408 N.E.2d 198), and an appeal from such a dismissal order for failure to state a cause of action preserves for review only a question of law as to the complaint's legal sufficiency. Gregor v. Kleiser (1982), 111 Ill. App.3d 333, 334, 443 N.E.2d 1162.

Plaintiff contends that count I pleads a cause of action based upon a theory of negligent entrustment. He essentially contends that the loaded pellet pistol is an inherently dangerous instrumentality, and, when left on defendants' premises in a place accessible to a five-year-old who had no experience with any type of firearms, defendants knew or should have known that such person might obtain and misuse the dangerous instrumentality and cause injury to himself or another. Plaintiff cites section 308 of the Restatement (Second), of Torts (1965), which provides:

"Permitting Improper Persons to Use Things or Engage in Activities

It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others."

Plaintiff also refers to comment b of section 308, which provides, in pertinent part, that:

"b. The rule stated in this Section has its most frequent application where the third person is a member of a class which is notoriously likely to misuse the thing which the actor permits him to use. Thus, it is negligent to place loaded firearms or poisons within reach of young children or feeble-minded adults."

Relying on the Illinois cases of Semeniuk v. Chentis (1954), 1 Ill. App.2d 508, 117 N.E.2d 883, and Palm v. Ivorson (1905), 117 Ill. App. 535, and authority from other jurisdictions which have upheld an action based on a negligent entrustment theory under somewhat similar circumstances (see, e.g., Kuhns v. Brugger (1957), 390 Pa. 331, 135 A.2d 395), ...


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