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04/11/89 David A. Swearingen, By v. Ann Korfist

April 11, 1989

WILLIAM E. SWEARINGEN ET AL., ET AL., PLAINTIFFS-APPELLANTS

v.

ANN KORFIST, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

DAVID A. SWEARINGEN, by his Guardians and Next Friends

537 N.E.2d 365, 181 Ill. App. 3d 357, 130 Ill. Dec. 298 1989.IL.501

Appeal from the Circuit Court of Kane County; the Hon. Michael O'Brien, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. NASH and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

This action was brought by plaintiffs, David A. Swearingen, by his guardians and next friends William E. and Carole A. Swearingen, and William E. and Carole A. Swearingen, individually, against defendant, Ann Korfist, for negligence and wilful and wanton misconduct for injuries sustained by David Swearingen while on defendant's property. Summary judgment was granted in favor of defendant. Plaintiffs appeal.

On appeal, plaintiffs contend that the trial court incorrectly applied the obvious-risk doctrine as it applies to minor children injured by a dangerous condition located on a defendant's property. Plaintiffs further contend that, as a consequence, the trial court improperly entered summary judgment in favor of defendant. We affirm.

Plaintiff David A. Swearingen, was 15 years old when he was injured on what was known in his neighborhood as "the pulley." The pulley is a device which consists of a pulley, three lengths of rope, and a newspaper bag. The longest rope is inserted through the pulley, and one end is tied approximately 13 to 20 feet high on the trunk of a tree. The other end of the rope is tied near to the ground on the trunk of another tree approximately 100 feet away. The newspaper bag is tied to the pulley with the shortest rope. The medium sized rope is then tied to the newspaper bag, allowing one to pull the newspaper bag along the rope while staying on the ground and to swing it up to the rider in the tree.

To use the pulley, a rider would climb up the tree where the high end of the rope was tied and climb into the newspaper bag, using it as a seat. The rider would then let gravity carry him down the incline of the rope to the tree at the other end. At the time of David's injury, on August 9, 1983, the high end of the rope was tied to a large oak tree on the property of Sherman and Carol Ovelman. The lower end of the rope was tied to a tree on defendant's property.

The pulley was originally constructed in May or June 1981 by defendant's sons, Chris and Matt Korfist, who were at the time 12 and 10 years old, respectively, and Keith and Jim Ovelman, who were at the time 13 and 11 years old, respectively. The newspaper bag was owned by Matt Korfist, and the rope and pulley were supplied from one of the boys' homes, another home in the neighborhood, or purchased new by the boys from a local hardware store. When originally constructed, the pulley was located entirely on defendant's property. In 1982 and 1983, the pulley was located on the property of defendant and the Ovelmans.

David first rode the pulley in 1981 and thereafter rode it numerous times in 1982 and 1983. David, along with the Ovelman and Korfist boys, was involved in setting up the device in 1982 and 1983. David helped put it up three times in 1982. In 1983, David contributed money toward the purchase of a new rope and a new pulley. He also went along with Keith Ovelman and Matt Korfist to purchase these items. According to David, a new rope was purchased because the old rope was frayed. In his deposition, David stated that he personally had tied the bag onto the pulley a week or two before his fall. David also stated that he was aware that the pulley could be dangerous and knew that Jim Ovelman had fallen out of the bag before, though the bag itself did not fall on that occasion.

Statements in depositions made by witnesses other than defendant indicate that defendant was aware of the existence of the pulley for more ...


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