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02/10/89 Shay Smith, A Minor By v. Anna George Et Al.

February 10, 1989

BEST FRIEND, PLAINTIFF-APPELLANT

v.

ANNA GEORGE ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

SHAY SMITH, a Minor by Laura Smith, his Mother and Next

534 N.E.2d 224, 178 Ill. App. 3d 1087, 128 Ill. Dec. 204 1989.IL.179

Appeal from the Circuit Court of Will County; the Hon. Thomas Ewert, Judge, presiding.

APPELLATE Judges:

JUSTICE BARRY delivered the opinion of the court. STOUDER, P.J., and HEIPLE, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

Shay Smith, by his mother Laura Smith, appeals from summary judgment entered in favor of defendants Anna George and Matthew George in a suit for personal injuries incurred when Shay was burned while pouring gasoline on a leaf fire.

The facts of this case are not in dispute. On April 8, 1986, Matthew George invited Shay to play at his home after school. Both boys were in second grade, and they lived five or six blocks apart. Anna George, mother of Matthew, was at home working in the kitchen. After shooting baskets for a while in the driveway, the boys surreptitiously obtained some matches and a cigarette lighter from the George home and then gathered some leaves and grass, which they set on fire behind a board fence situated on the property line at the rear of the yard.

The boys then went into the unlocked garage, poured some gasoline from a 2 1/2-gallon container into a coffee can, carried it back to the fire, and poured the gasoline on the fire to make it blaze up again. The boys made three or four trips for gasoline, each time climbing the fence one at a time and handing the coffee can of gasoline over the fence. Matthew poured the gasoline each time until the last time. When Shay poured the gasoline, an explosion followed which set fire to his hat and jacket and burned his face and hand.

Plaintiff filed a two-count complaint. One count charged Anna George with failure to properly supervise and control her son Matthew so as to prevent him from harming plaintiff and for negligently permitting matches and gasoline to be within reach of her minor son. The second count alleged Matthew's negligent conduct in failing to exercise reasonable care for the protection of plaintiff from exposure to an unreasonable risk of harm.

First, plaintiff contends that the trial court erred in finding as a matter of law that defendants had no duty to plaintiff to protect him against injury from the fire set on defendants' land. We consider it significant that the fire was not on defendants' land, but rather was on the other side of a boundary fence about four feet high which in part blocked the view of anyone in the defendants' house or yard from the area where the fire was set. It is also significant that plaintiff assisted in starting the fire, in obtaining the gasoline, and in causing the explosion that burned him.

The law of Illinois is clear that fire is one of the obvious dangers which a child old enough to be allowed at large can be expected to understand and appreciate. (Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177; Sampson v. Zimmerman (1986), 151 Ill. App. 3d 396, 502 N.E.2d 846.) According to these cases, a child of the age and understanding of eight-year-old Shay Smith is not owed a duty by defendants to remedy or prevent a fire which is a preexisting dangerous condition on their land. We hold that here, where there was no "preexisting dangerous condition," but rather a fire started in part by plaintiff, and where the fire was not on defendants' land but outside the boundaries of their land, and where plaintiff admittedly understood the dangers of fire and the flammability of gasoline, and where plaintiff was of sufficient age and maturity to be allowed at large, no duty was owed by defendants to plaintiff to protect him from the obvious risk which he encountered.

A second issue raised by plaintiff is whether the complaint stated a cause of action under section 316 of Restatement (Second) of Torts, which provides:

"A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an ...


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