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09/03/87 Jeremy A. Knapp, A Minor, v. the City of Decatur Et Al.

September 3, 1987

JEREMY A. KNAPP, A MINOR, BY HIS MOTHER AND NEXT FRIEND, SHARON RANGOS, ET AL., PLAINTIFFS-APPELLANTS

v.

THE CITY OF DECATUR ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

513 N.E.2d 534, 160 Ill. App. 3d 498, 112 Ill. Dec. 120 1987.IL.1285

Appeal from the Circuit Court of Macon County; the Hon. John L. Davis, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. GREEN and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Jeremy Knapp (Jeremy) sustained injuries when he fell from a sandpile at a construction site in Decatur, Illinois, May 1, 1984. His mother, Sharon Rangos (Rangos), brought this action against the city of Decatur (city), Goodmar, Inc. (Goodmar), and Otto Baum & Sons, Inc. (Baum). The circuit court of Macon County orally granted defendants' motions to dismiss plaintiffs' amended complaint for failure to state a cause of action on November 7, 1986. Plaintiffs appealed. We are asked to decide issues relating to jurisdiction and whether the trial court's dismissal was error.

On May 1, 1984, at or about 7 p.m., Jeremy, then six years of age, was injured while playing on a four-foot high pile of sand at a construction site located near the intersection of Wood and Taylor streets in Decatur. Rangos filed a six-count complaint February 28, 1986, in Macon County circuit court, alleging one count of negligence each against the city, Goodmar, and Baum. Three additional counts alleged Rangos' expenses pursuant to the family expense statute. Ill. Rev. Stat. 1983, ch. 40, par. 1015.

Plaintiffs' complaint alleged as follows: the city allowed the sandpile to be placed on or adjacent to its property at the intersection of Wood and Taylor streets in Decatur within 100 feet of an elementary school; the city had a duty of reasonable care in the maintenance and condition of its property and to protect the general public, including children, from injury; the sandpile was placed adjacent to and above concrete curbing and a hard brick road surface, creating an unreasonably dangerous condition for children; the city knew or should have known that children played on the sandpile; the city had actual and constructive notice of the unreasonably dangerous condition to correct it. As a direct and proximate result of the acts of negligence, Jeremy sustained injuries when he fell to the curb and road surface while playing with other children on the sandpile. Counts III and V, directed to the construction firms Goodmar and Baum, respectively, were essentially the same as count I.

The city and Goodmar filed motions to dismiss the counts against them. Both motions claimed plaintiffs failed to establish a legal duty, stating that from the face of the complaint, the sandpile and surrounding features were not unreasonably dangerous, but obvious.

The circuit court allowed the motions to dismiss on May 19, 1986. The court's docket entry states: "Arguments heard. Authority reviewed. Defendant's [ sic ] motion to dismiss allowed. Plaintiff's [ sic ] complaint dismissed with leave granted to file first amended complaint on or before 21 days. Clerk of the Court directed to forward copy of docket entry to counsel." However, the amended complaint was not filed until November 6, 1986, leave having been granted by the court on that date.

The complaint's allegation that the sandpile created an unreasonably dangerous condition was changed in the amended complaint to state that the sandpile, when placed adjacent to and above the curb and road surface "was open to traffic and was over four feet from top to hard brick surface." Plaintiffs added a new paragraph alleging that the sandpile "had been recently deposited in the aforesaid location and therefore was unstable, loose and sloped toward said brick road surface." The amended complaint was in all other aspects identical to the original.

Motions to dismiss filed by defendants claimed the amended complaint failed to allege a duty. The motions to dismiss were granted November 7. The docket entry reads: "Arguments having been heard on Motions to Dismiss, finding plaintiff has failed to state a cause of action. Plaintiff's complaint dismissed. Cause ordered stricken."

On December 2, 1986, plaintiffs filed a "Motion for Findings." Plaintiffs requested the court to indicate (1) whether the plaintiffs' motion for leave to file an amended complaint was granted; (2) whether plaintiffs' first-amended complaint was filed; (3) whether the complaint or amended complaint was dismissed; and (4) whether the cause was dismissed with or without prejudice.

A hearing on the motion was held January 15, 1987. The court's docket entry for that date shows: "Parties present by counsel. Cause called for hearing on motion for findings. Arguments heard. Finding leave was granted to file amended complaint and that arguments heard were addressed to ...


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