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09/17/87 Albert Eugene Gunterman, v. Carleen Rice

September 17, 1987





514 N.E.2d 198, 160 Ill. App. 3d 545, 112 Ill. Dec. 732 1987.IL.1365

Appeal from Circuit Court of Jersey County; the Hon. Thomas G. Russell, Judge, presiding.


JUSTICE LUND delivered the opinion of the court. SPITZ, P.J., and GREEN, J., concur.


On January 28, 1987, the circuit court of Jersey County granted the motion for summary judgment filed by Carleen Rice, defendant, in the personal injury lawsuit filed by Albert Gunterman, plaintiff. Plaintiff appeals. We affirm.

The evidence shows plaintiff had been dating defendant for several years. Defendant went to Florida and asked plaintiff to watch her house. On February 13, 1984, some time after 10 p.m., plaintiff became hungry and decided to cook some frozen fish kept in the deep freeze. He placed a large pot, half full of cooking grease, on the largest burner on the stove and turned it to the highest setting. The stove was an electric stove, and though plaintiff had been in the house many times, he had never operated it before.

Plaintiff then proceeded to get the fish from the freezer in the basement. On the way, he decided to go to the bathroom since he was suffering from diarrhea. Once there, he became engrossed in "doing his job" and forgot about the grease. He admitted he was there longer than usual and may have been there five minutes.

He heard the smoke detector go off and went immediately to the kitchen, finding the grease on fire. He started throwing water on the fire, which caused the grease to splash on him, burning him. Eventually, he put the fire out.

Plaintiff filed a personal injury action against defendant alleging she had a duty to warn him that the stove heated up quickly. Defendant filed a motion for summary judgment which the court granted on January 28, 1987. Plaintiff contends the decision is incorrect.

Plaintiff's complaint alleges that defendant knew her stove was abnormal because it heated extremely fast, and she had a duty to warn plaintiff, which duty she breached. The existence of a duty, that is, a legal obligation to conform one's conduct to a certain standard for the benefit or protection of another, is a matter of law to be determined by the court. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 555, 328 N.E.2d 538, 540.) In determining whether the law imposes a duty, foreseeability of possible harm alone is not the test, but the likelihood of injury from the existence of a particular condition, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden upon the defendant, as well as other public policy and social considerations, must also be taken into account. Barnes v. Washington (1973), 56 Ill. 2d 22, 29, 305 N.E.2d 535, 539; Illinois Housing Development Authority v. Sjostrom & Sons, Inc. (1982), 105 Ill. App. 3d 247, 261-62, 433 N.E.2d 1350, 1361.

In the current case, there is no evidence, nor is it even alleged, that the stove was defective. The only evidence concerning its functioning was testimony by the defendant that the stove heated fast. The stove was one year old, and defendant never had to call a repairman for it. We are not prepared to hold that a homeowner has a duty to warn another adult that an electric stove heats "fast" when it is turned to the highest setting. Even if we were to assume that foreseeability of a possible harm existed from this "fast" heating (a dubious assumption, to be sure), we would find that the likelihood of injury such as occurred here is so minimal that a duty would not be created. We are not prepared to require that every property owner with a stove which heats "fast" must warn all users of that fact.

Further, Illinois follows the principles found in sections 343 and 343A of the Restatement (Second) of Torts. (Restatement (Second) of Torts secs. 343, 343A (1965); Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 468-69, 343 N.E.2d 465, 472; Sepesy v. Archer Daniels Midland Co. (1981), 97 Ill. App. 3d 868, 871, 423 N.E.2d 942, 944-45.) Section 343A limits the liability of a landowner to invitees. It provides in part:

"A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them." ...

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