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06/18/87 Richard Nichols, A Minor, v. Chester W. Sitko Et Al.

June 18, 1987

RICHARD NICHOLS, A MINOR, BY LINDA NICHOLS, HIS MOTHER AND NEXT FRIEND, PLAINTIFF-APPELLANT

v.

CHESTER W. SITKO ET AL., DEFENDANTS-APPELLEES AND COUNTERDEFENDANTS-APPELLEES (DONNA L. SACKS, DEFENDANT AND COUNTERPLAINTIFF-APPELLANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

510 N.E.2d 971, 157 Ill. App. 3d 950, 109 Ill. Dec. 903 1987.IL.839

Appeal from the Circuit Court of Cook County; the Hon. Thomas R. Rakowski, Judge, presiding.

APPELLATE Judges:

JUSTICE JIGANTI delivered the opinion of the court. JOHNSON and LINN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI

While the plaintiff Richard Nichols was riding his minibike through the intersection of Bucky Lane and 85th Street in Willow Springs, Illinois, he was struck and injured by a car driven by the defendant, Donna Sacks. Sacks' visibility of Nichols was allegedly impaired by five-foot-tall weeds and foliage that were growing on a vacant lot located at the intersection. The lot was owned by the defendants Chester and Leona Sitko.

Nichols filed a two-count complaint against Sacks and the Sitkos. Count I alleged that Sacks was negligent in the operation of her vehicle. Count II alleged that the Sitkos were negligent in, among other things, failing to trim their weeds to a reasonable height in accordance with the Municipal Code of Willow Springs. Before this court on appeal is the dismissal of count II of Nichols' second amended complaint. Additionally, the defendant Sacks appeals the dismissal of her countercomplaint which sought contribution from the property owners, the Sitkos.

The essential elements of an action in negligence are the existence of a duty of reasonable care owed to the plaintiff by the defendant, breach of that duty and injury proximately resulting from that breach. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 374, 308 N.E.2d 617; Alm v. Van Nostrand Reinhold Co. (1985), 134 Ill. App. 3d 716, 718, 480 N.E.2d 1263.) As to the element of duty, Nichols argues that based upon the fact that the Sitkos knew or, in the exercise of ordinary care, should have known, that young children habitually frequented the vicinity of the empty lot, the Sitkos had a duty to protect children from potential injury arising from the empty lot and the weeds growing thereon. In support of this argument, Nichols relies upon the case of Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836. In Kahn, the court held that a possessor of land will be liable for injuries sustained to children when the injury is caused by a dangerous condition on the property and the owner knew or should have known that children habitually frequent the area.

It is clear from a reading of Kahn, however, that the principles enunciated therein are inapplicable to the facts at bar. Kahn, and the other cases cited by Nichols, involve liability for injuries that occurred on the land. In this case, Nichols was injured off the premises. As a general rule, a possessor of land is not liable for physical harm caused to others outside of the land by a natural condition of the land. (Restatement (Second) of Torts sec. 363(1) (1965); W. Prosser, Torts sec. 57, at 354-55 (4th ed. 1971), citing Goodhart, Liability for Things Naturally on the Land, 4 Camb. L.J. 13 (1930).) Further, the Illinois Supreme Court in Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177, has interpreted the Kahn decision as applying to cases where the child has gone onto the premises. As the court stated:

"The essence of the Kahn principle is to impose a duty upon those owning or occupying land to remedy conditions which, although considered harmless to adults, are dangerous to children who foreseeably wander onto the premises." 73 Ill. 2d 316, 326, 383 N.E.2d 177, 180.

Additionally, the decision in Kahn requires that the injury occur as a result of a dangerous condition on the premises. A dangerous condition under Kahn and its progeny is one which causes an unreasonable risk of harm to children who, by reason of their immaturity, might be incapable of appreciating the risk involved. (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836; Niemann v. Vermilion County Housing Authority (1981), 101 Ill. App. 3d 735, 739, 428 N.E.2d 706.) The mere fact that a condition is capable of causing injury does not satisfy the requisites of Kahn. (Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177 (although injury resulted from a fall in a ditch, the ditch was not deemed to be dangerous).) Nevertheless, where the condition is in and of itself innocuous, it may become dangerous when combined with other conditions. (Novak v. C. M. S. Builders & Developers (1980), 83 Ill. App. 3d 761, 764, 404 N.E.2d 918.) In such a case, the plaintiff's complaint must sufficiently set forth allegations that factually establish that an innocuous condition or agency has combined with some other surrounding or circumstance which then renders it dangerous to children. From this, the trial court must be able to conclude that the condition complained of created a greater risk to the child than the child would generally encounter. Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177; Prince v. Wolf (1981), 93 Ill. App. 3d 505, 509, 417 N.E.2d 679.

In this case, Nichols' complaint does not set forth any facts tending to show that some other condition was present to interact with the weeds so as to create a condition that could be characterized as dangerous. Even assuming that the obstruction of traffic alleged by Nichols was present, we do not believe that this is a condition that creates a risk to a child which is not normally encountered. Consequently, Nichols has not stated a cause of action for relief under the principles of Kahn.

Nichols suggests, however, that the principles in Kahn should be extended to cases where the injury occurred off the premises. In support of this argument, Nichols cites the case of Mahurin v. Lockhart (1979), 71 Ill. App. 3d 691, 390 N.E.2d 523. Nichols suggests that Mahurin stands for the proposition that a landowner can be liable for damages resulting from any dangerous natural condition on his property even if the actual occurrence took place off the property. We do not agree with this expansive interpretation of Mahurin.

The condition which caused the injury in Mahurin was a dead branch which fell from a tree located on the defendant's premises onto the adjacent property. The historical rule which is set forth in the Restatement of Torts provides that a possessor of land in an urban area will be liable to persons using a public highway for harm resulting from his failure to use reasonable care to prevent an unreasonable risk of harm rising from the condition of trees on the land. (Restatement (Second) of Torts sec. 363(2) (1965); see generally McCleary, The Possessor's Responsibilities as to Trees, 29 Mo. L. Rev. 159 (1964).) In Mahurin, the court recognized the changes in modern society which have occurred since the time the Restatement rule was adopted, and therefore extended the rule as to liability for trees to apply not only to persons on a public highway, but also to those on adjoining property. Notwithstanding this extension, there is ...


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