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Teter v. Clemens





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.


Rehearing denied June 2, 1986.

The plaintiff, Brian Teter, brought this action to recover for injuries that he sustained in a childhood accident at the home of the defendants, Orville Clemens and his wife, Betty. The circuit court of Kane County dismissed the plaintiff's amended complaint for failure to state a cause of action. The appellate court, however, held that a cause of action was stated under one of the two theories for recovery alleged by the plaintiff. (131 Ill. App.3d 434.) We allowed the defendants' petition for leave to appeal (94 Ill.2d R. 315(a)), which brought before us as well the plaintiff's contention that his other theory of recovery also stated a cause of action (see 87 Ill.2d R. 318(a)).

The plaintiff commenced this action on May 16, 1983. According to the amended complaint, on June 2, 1968, the plaintiff, then five years old, was struck in his left eye by a pellet fired from a gun by the defendants' five-year-old grandson. The defendants had purchased the gun and pellets before that date, and the accident occurred while the two children were playing at the defendants' home, in Aurora. As a result of the accident, the plaintiff lost all forward vision in the injured eye.

The plaintiff asserted two alternative theories of recovery in his amended complaint. Count I was based on negligent entrustment, and in count II the plaintiff alleged that the grandson's possession of the pellet gun amounted to a dangerous condition on the defendants' premises. In addition, in a third count the plaintiff sought to set aside, on grounds of mutual mistake, an earlier release of his claims against the defendants. The defendants moved to dismiss the amended complaint for failure to state a cause of action, and the trial judge granted the motion. On appeal, the appellate court held that the first count stated a cause of action but that the second count did not; a dissenting justice believed that the first count also was insufficient as a matter of law. Although the trial judge dismissed the entire action, at no stage of the proceedings have the parties contested the merits of count III of the amended complaint, involving the release of liability; the sufficiency of that count was not an issue in the appellate court and likewise is not an issue here.

This court has said, "A complaint for negligence, to be legally sufficient, must set out facts that establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach. (Cunis v. Brennan (1974), 56 Ill.2d 372, 374.)" (Pelham v. Griesheimer (1982), 92 Ill.2d 13, 18.) Fact pleading, as opposed to notice pleading, is required in Illinois; accordingly, a plaintiff must allege facts that are sufficient to bring his claim within the scope of a legally recognized cause of action. (People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill.2d 300, 308.) Only well-pleaded facts are admitted by a motion to dismiss, and the requirement that a complaint set forth facts necessary for recovery under the theory asserted is not satisfied, in the absence of the necessary allegations, by the general policy favoring the liberal construction of pleadings (see Ill. Rev. Stat. 1983, ch. 110, pars. 2-603(c), 2-612(b)). Knox College v. Celotex Corp. (1981), 88 Ill.2d 407, 426-27.

As we have said, count I of the amended complaint is based on negligent entrustment. That action "consists of entrusting a dangerous article to another whom the lender knows, or should know, is likely to use it in a manner involving an unreasonable risk of harm to others." (1 J. Dooley, Modern Tort Law sec. 23.01, at 613 (1982).) In support of his action here the plaintiff cites the general principle of liability found in section 308 of the Restatement (Second) of Torts (1965), which says:

"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."

Comment b to that section says in part:

"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."

The plaintiff would place the circumstances here within the scope marked out by section 308 and comment b. He argues that the defendants' grandchild, who was five years old at the time of the occurrence, lacked the maturity and training necessary for the safe use of the loaded pellet gun. Thus, in count I the plaintiff alleged that the defendants knew or should have known that their grandson, because of his young age and inexperience, was likely to misuse a pellet gun if he came into possession of one. That count also alleged:

"9. That prior to June 2, 1968, the Defendant placed a loaded pellet pistol in such a place as to be accessible to the reach of the young grandchild of the Defendants.

10. That the minor grandchild of the Defendants did in fact come into possession of the Defendants' pump ...

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