APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
522 N.E.2d 227, 168 Ill. App. 3d 80, 118 Ill. Dec. 772 1988.IL.347
Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Hoffman, Judge, presiding.
JUSTICE LORENZ delivered the opinion of the court. PINCHAM and MURRAY, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ
Plaintiff Christopher Bonder, by his mother and next friend, Carolyn Bonder Sotos, brought this action against defendants Commonwealth Edison Company and Richard and Jean Delhey for injuries he sustained when he pulled a companion away from Edison's power line while climbing a tree on the Delhey's property. The circuit court of Cook County granted defendants' motions for summary judgment as to plaintiff's two negligence counts against them. A third count against Edison, based on a theory of absolute liability, was dismissed and no appeal has been taken from that order.
We affirm, finding as a matter of law that defendants owed no duty to warn the plaintiff, then 14 years old, of the open and obvious danger posed by power lines.
The depositions on file establish the following facts pertinent to our Disposition of this appeal. On June 2, 1979, plaintiff and Dan Delhey, then 14 and 15 years old, respectively, decided to climb a tree in the Delheys' backyard in order to hide two planters containing marijuana plants. While in the tree plaintiff placed his planter on top of a utility pole from which power lines were suspended. He then noticed that Dan was lying over a tree limb with his hand touching one of the power lines. When he grabbed one of Dan's legs to pull him off the line, he then received the injuries which are the subject of this suit.
At the time of the incident plaintiff and Dan had both finished ninth grade. Both admitted being aware of the lines prior to the incident, but denied knowing that they were electrical lines. Plaintiff stated that he thought they were telephone lines. Dan said he did not think about what kind they were. However, Dan's father testified that he had warned Dan that they were dangerous electrical lines. Plaintiff also testified in his deposition that although he was aware of the existence of high tension lines, he had not known that electricity was carried in wires to houses and buildings because electricity had reached the homes he previously lived in via underground tubes.
There was conflicting deposition testimony about prior instances of tree-climbing in the Delheys' backyard. Plaintiff testified that he and Dan had climbed the tree in question two or three times. He also testified that Dan had told him he had previously climbed that tree. However, Dan denied having climbed the tree before and further testified that as far as he knew plaintiff had not previously climbed it either.
Dan did testify that he and his brother had climbed another tree in the backyard, an apple tree. His mother, defendant Jean Delhey, testified that one of her children had climbed the apple tree but she had not seen any other children climb any of their trees. Defendant Richard Delhey stated that prior to the incident he was not aware of any children climbing any of the trees in his yard. After the incident Dan told him that he had climbed the tree at issue the previous year.
Under Illinois law, to establish a special duty to remedy an allegedly dangerous condition or to protect children from that condition, three things must be established:
1. the condition is a dangerous one which is likely to cause injury to children because, by reason of their immaturity, they are ...