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06/16/89 Judy Setinc, Special Adm'r v. Joseph C. Masny

June 16, 1989

JUDY SETINC, SPECIAL ADM'R OF THE ESTATE OF JOSEPH MASNY, DECEASED, ET AL., PLAINTIFFS-APPELLANTS

v.

JOSEPH C. MASNY, DEFENDANT-APPELLEE

THE COMPLAINT IN THIS CAUSE CONTAINED THE FOLLOWING COUNTS: I. UNDER THE SURVIVAL ACT (ILL. REV. STAT. 1983, CH. 110 1/2, PAR. 27-6), TO RECOVER FOR DECEDENT'S PAIN AND SUFFERING CAUSED BY DEFENDANT'S NEGLIGENCE. II. UNDER THE WRONGFUL DEATH ACT (ILL. RE

v.

STAT. 1983, CH. 70, PAR. 1 ET SEQ.), TO RECOVER FOR DECEDENT'S WRONGFUL DEATH CAUSED BY DEFENDANT'S NEGLIGENCE. III. UNDER THE FAMILY EXPENSE STATUTE (ILL. REV. STAT. 1983, CH. 40, PAR. 1015), TO RECOVER MEDICAL EXPENSES INCURRED AS A RESULT OF DEFENDANT'S NEGLIGENCE. IV. UNDER THE SURVIVAL ACT, TO RECOVER FOR DECEDENT'S PAIN AND SUFFERING

THE TRIAL COURT GRANTED MOTIONS FOR SUMMARY JUDGMENT IN FAVOR OF DEFENDANT AS TO COUNTS I, II, III, IV, AND

v.

COUNTS VI AND VII WERE DISPOSED OF BY ORDERS OF DISMISSAL.



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

540 N.E.2d 937, 185 Ill. App. 3d 15, 133 Ill. Dec. 71 1989.IL.909

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

APPELLATE Judges:

JUSTICE BARRY delivered the opinion of the court. SCOTT and STOUDER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

Eleven-year-old Joseph Masny died as a result of severe burns suffered when a can of model airplane fuel exploded in the family garage. Helen Masny, his mother, and Judy Setinc, the special administrator of his estate, filed suit against decedent's father, Joseph C. Masny, to recover damages. Plaintiffs appeal from those orders of the trial court dismissing some counts of the complaint and entering summary judgment in favor of defendant as to the other counts.

Briefly, defendant and his son flew model airplanes as a hobby. The airplane fuel, which is a mixture of gasoline and nitroglycerine, was stored in a one-gallon can attached to a pack of equipment used to fly the model planes. The pack was kept on a workbench in the Masny family garage.

On the morning of June 29, 1984, defendant locked the garage when he left for work, but later plaintiff Helen Masny left the garage unlocked when she went to the store for groceries. While she was gone, decedent and a friend went into the garage to play. Decedent lit a candle, set the candle on a board, and, using the hand pump on the fuel can, began to pump some model airplane fuel onto the burning candle. The fuel can exploded, and decedent was severely burned. He died in December of 1984 as a result of the burns.

caused by defendant's willful and wanton misconduct. V. Under the Wrongful Death Act, to recover for decedent's wrongful

caused by a nuisance maintained by defendant. VII. Under the Wrongful Death Act, to recover for decedent's wrongful

death caused by a nuisance maintained by defendant.

Plaintiffs' first contention is that the trial court erred in ruling that the common law doctrine of parental tort immunity is a bar to the causes of action grounded in negligence (counts I and II) brought by the administrator of decedent's estate against the father. Plaintiffs challenge the public policy reasons advanced in support of the doctrine.

One of the cases plaintiffs rely upon is Schenk v. Schenk (1968), 100 Ill. App. 2d 199, 241 N.E.2d 12, where a father's cause of action against his daughter arising out of an accident where she struck her pedestrian father as she drove the car was allowed on the ground that the daughter's allegedly tortious conduct had no direct connection with the family relationship. While the court there recognized an exception to the immunity doctrine, the court also spoke in defense of the doctrine as follows:

"[There] are no impelling reasons for eroding or emasculating the family immunity rule for conduct of either parent or child arising out of the family relationship and directly connected with the family purposes and objectives in those cases where it may be said that the carelessness, inadvertence or negligence is but the product of the hazards incident to interfamily living and common to every family. In such instances the immunity doctrine is neither unjust, unreasonable nor without a sound and solid foundation. To hold otherwise is to inject into the courts a judicial supervision over everyday family conduct of parent and child, and invites endless litigation over what is or is not ordinary negligence in the operation of a household. The ...


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