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04/24/89 D'ella Breeze, Special Adm v. Robert Payne Et Al.

April 24, 1989

D'ELLA BREEZE, SPECIAL ADM'R OF THE ESTATE OF LANA DARE, DECEASED, PLAINTIFF-APPELLANT

v.

ROBERT PAYNE ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

537 N.E.2d 453, 181 Ill. App. 3d 720, 130 Ill. Dec. 386 1989.IL.591

Appeal from the Circuit Court of Jefferson County; the Hon. George W. Timberlake, Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. RARICK and CHAPMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

The plaintiff, D'Ella Breeze, as special administrator of the estate of Lana Dare, deceased, appeals from the summary judgment granted by the trial court in favor of the defendants, Robert Payne and Marcella Payne. Ten years old at the time of her death on June 1, 1984, Lana Dare collided with a truck on that date while riding a small two-wheeled motorbike owned by the defendants, who were her aunt and uncle. In granting summary judgment the trial court determined that the defendants had "no legal duty to avoid any of the acts or omissions which are alleged as elements of negligence in the Second Amended Complaint," the pleading upon which defendants' motion for summary judgment was based. The plaintiff presents a single issue for review, stated as "[whether] there is a duty to warn, supervise, or instruct minor children when a defendant's own activities create a foreseeable risk of harm."

In her second amended complaint consisting of two counts, filed on June 18, 1987, the plaintiff, who is Lana Dare's mother, alleged that on June 1, 1984, prior to the decedent's injury and death, "one or both of the defendants told Lana Dare that she could ride a certain Italjet motorbike owned by Robert Payne." Plaintiff alleged further that "[before] and at the time of the occurrence" leading to Lana Dare's injury and death

"the defendants were negligent in one or more of the following ways:

(a) Failed to tell Lana Dare that she should not ride the motorbike unless one of the adults was present to help her, when defendants knew or should have known that such failure endangered Lana Dare's safety.

(b) Failed to tell their own children that they should not start the motorbike for Lana to ride it unless one of the adults was present to help Lana, when defendants knew or should have known that such failure endangered Lana Dare's safety.

(c) Failed to adequately supervise Lana Dare and their own children, when defendants knew or should have known that such failure endangered Lana Dare's safety.

(d) Failed to properly instruct Lana Dare in the operation of the motorbike, when defendants know or should have known that such failure endangered her safety."

On June 25, 1987, the defendants filed a motion to dismiss both counts of the second amended complaint for failure to state any duty on the part of the defendants either to perform any of the acts alleged to be required or to refrain from any of the omissions alleged. The defendants contended that as a matter of law the defendants had no duty to perform any of the acts alleged to be required or to refrain from any of the omissions alleged. Following argument, the trial court on July 1, 1987, denied the defendants' motion to dismiss.

On July 1, 1987, the defendants moved for summary judgment as to both counts of the second amended complaint. In support of the motion were attached the discovery depositions of D'Ella Breeze, taken on April 24, 1985, and again on March 24, 1987, and of ...


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