Sometime after the September, 1987 visit, Debra O'Clair was called in Massachusetts from the Dumelles' home by her friend, Rob Nagy, who was visiting the Dumelles, and invited to visit the Dumelles again. Exhibit C, p. 26-27. Debra O'Clair told the Dumelles that she would come to visit them for a second time. Exhibit C, p. 27-28. Debra O'Clair and Beth arrived at the Dumelles, with Rob Nagy, sometime during October, 1987. Exhibit C, p. 23. It was Debra O'Clair's intention that they stay with the Dumelles for a couple of weeks, Exhibit C, p. 35, and they had been at the Dumelles for about two weeks at the time of the incident. Exhibit C, p. 48.
Debra O'Clair was aware that the swimming pool was present when she returned to the Dumelle home and that the swimming pool had water in it. Exhibit C, p. 38. Debra O'Clair knew that Beth had played near the swimming pool and had told her not to go near it. Once, when she saw Beth get a bucket and attempt to get water out of the pool with it, Debra ran and grabbed her. Exhibit C, p. 40-41. Debra O'Clair was also aware that Beth had toys in the Dumelles' backyard, where the swimming pool was located. Exhibit C, p. 54. Debra described the water in the pool as "gross," "disgusting" and "dirty." Exhibit C, p. 56.
The Dumelles were planning to get up early and leave their home to pick up some horses on the morning of November 1, 1987. Debra O'Clair knew that the Dumelles would be leaving their home "really early." Exhibit C, p. 58. When Debra O'Clair woke up on November 1, 1987, she went into the living room and spoke with the Dumelles. The Dumelles told Debra O'Clair that they were leaving the premises to pick up some horses. Exhibit C, p. 61. Debra O'Clair understood that she, as Beth's mother, was responsible for looking after Beth. Exhibit C, p. 102. At that time, Beth was on the floor of the living room in her pajamas watching television and coloring. Exhibit C, p. 60, 62-63. It was rainy and cold, about 40 degrees, outside. Nagy Dep., p. 22.
Debra O'Clair was aware that the sliding glass door in the living room, which lead to the deck connecting the house to the pool, had been kept unlocked on a regular basis by the Dumelles. Exhibit C, p. 76. Debra O'Clair was also aware that Beth was capable of opening the unlocked sliding glass door by herself. Exhibit C, p. 82. Debra O'Clair did not ask the Dumelles to lock the sliding glass door when they left their home on the morning of November 1, 1987, Exhibit C, p. 101, and she did not check the door to seek if it was locked or unlocked. Exhibit C, p. 83.
Shortly, after the Dumelles left the premises, Debra O'Clair went back to a bedroom to speak with Rob Nagy for a period of about 15 to 20 minutes. Beth sat in the living room in front of the television, Exhibit C, p. 62-63, next to the unlocked sliding glass door which led to the pool. Exhibit C, p. 95. Debra O'Clair could not see Beth from her location in the bedroom. Exhibit C, p. 63. Debra O'Clair checked on Beth four or five times in a 15 to 20 minute period. Exhibit C, p. 63.
After approximately 20 minutes, Debra O'Clair noticed that Beth was missing, and searched for her. Debra O'Clair did not look into the pool for Beth when she realized that her daughter was missing. She looked for Beth in the house and in the surrounding neighborhood. Exhibit C, p. 65, 70. Beth was found by Rob Nagy in the swimming pool. Exhibit C, p. 64-69, 74; Nagy Dep., p. 27. Debra O'Clair and Rob Nagy took Beth to Memorial Hospital. Exhibit C, p. 85-86. Beth was transferred to Rockford Hospital later in the day, where she was pronounced dead. Exhibit C, p. 88, 90.
On October 21, 1988, Debra O'Clair filed a complaint against the Dumelles alleging that their negligence resulted in the drowning death of Beth O'Clair. Specifically, she alleged that the Dumelles disregarded their duty to Beth by (1) failing to keep the sliding door in the family room, which lead to pool, locked, (2) failing to drain the pool properly, (3) failing to cover the pool, (4) failing to fence the pool, (5) failing to replace the pool ladder, and (6) failing to remove toys from the pool. The Dumelles answered on January 6, 1989, denying all allegations of negligence, and now move for summary judgment based on the absence of any duty owing from themselves to Beth O'Clair.
Beth O'Clair's death is truly a tragedy. Emotions are stirred by the story of a young child deprived of the opportunity to enjoy the promises of life. Sympathy for her mother is evoked. A desire may arise to compensate for the death of a child and the loss of a daughter in the only way the law can -- monetarily. Yet, emotion cannot prevail. Compassion for the mother on the loss of her child must yield to justice for the faultless accused. That one has sustained a loss is not sufficient to require a third party to compensate for that loss. As stated by the Illinois Supreme Court:
It is always unfortunate when a child gets injured . . . [or killed]. . . while playing, but a person who is merely in possession and control of the property cannot be required to indemnify against every possibility of injury thereon. The responsibility for a child's safety lies primarily with its parents, whose duty it is to see that his behavior does not involve danger to himself. Others can be held responsible for injuries only if they are at fault under some recognized theory of liability.
Driscoll v. C. Rasmussen Corp., 35 Ill. 2d 74, 219 N.E.2d 483, 486 (1966);
see also Gille v. Winnebago Housing Authority, 44 Ill. 2d 419, 255 N.E.2d 904, 907-08 (1970).
Any legal obligation to compensate under these circumstances can only follow from a determination that the Dumelles were negligent, not from the mere fact that the loss -- Beth's death -- occurred on the Dumelle's property. Negligent behavior has occurred where defendant breached a duty owing to plaintiff proximately causing the injuries sought to be compensated. Beal v. Kuptchian, 164 Ill. App. 3d 191, 517 N.E.2d 712, 713, 115 Ill. Dec. 301 (5th Dist. 1987); Petrik v. Monarch Printing Corp., 150 Ill. App. 3d 248, 501 N.E.2d 1312, 1316, 103 Ill. Dec 774 (1st Dist. 1986).
The first element which must be established is, of course, the existence of a duty owing from defendant to plaintiff. If no duty existed, it is axiomatic that no recovery can occur. Keller By Keller v. Mols, 129 Ill. App. 3d 208, 472 N.E.2d 161, 163, 84 Ill. Dec. 411 (1st Dist. 1984); Beal, 517 N.E.2d at 714. "Whether under the facts of a case such a relationship exists between the parties as to require that a legal obligation be imposed upon one for the benefit of another is a question of law to be determined by the court." Keller, 472 N.E.2d at 163; see also Mieher v. Brown, 54 Ill. 2d 539, 541, 301 N.E.2d 307, 308 (1973); Beal, 517 N.E.2d at 713.
Although this concerns the potential liability of an owner of land for injuries sustained by a child as a result of an allegedly dangerous condition, Illinois has long since abandoned the concept of attractive nuisance -- determining that the liability of owners and occupiers of land would be evaluated under the principles of ordinary negligence. See Corcoran v. Village of Libertyville, 73 Ill. 2d 316, 383 N.E.2d 177, 22 Ill. Dec. 701 (1978); Kahn v. James Burton Co., 5 Ill. 2d 614, 126 N.E.2d 836 (1955). An owner or occupier of premises owes entrants onto the premises a duty of "reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them." Ill. Rev. Stat. ch. 80, para. 302. "As a general rule, a landowner-occupier has no duty to take special precautions to insure the safety of children." Corcoran, 383 N.E.2d at 179; Kirby v. Macon Public School Dist. No. 5, 169 Ill. App. 3d 416, 523 N.E.2d 643, 646. 119 Ill. Dec. 887 (4th Dist. 1988). Still, under Kahn and its progeny, such a special duty may exist where the landowner-occupier knows or should know that children frequent the premises and a child is injured by a dangerous condition on the premises. Where these two factors are present, injury to children is foreseeable. Yet, where children can appreciate the risk caused by the condition, it is not dangerous and no special duty arises. Corcoran, 383 N.E.2d at 180; Alop By Alop v. Edgewood Valley Community Ass'n, 154 Ill. App. 3d 482, 507 N.E.2d 19, 21, 107 Ill. Dec. 355 (1st Dist. 1987); Friedman v. Park District of Highland Park, 151 Ill. App. 3d 374, 502 N.E.2d 826, 834, 104 Ill. Dec. 329 (2nd Dist. 1986); Keller, 472 N.E.2d at 164.
In determining whether to impose a duty, the court must consider the foreseeability and likelihood of the accident plus the costs and consequences of requiring the defendant to guard against the injury. Beal, 517 N.E.2d at 714. "The touchstone of liability is . . . predicated upon a test of foreseeability of harm." Corcoran, 383 N.E.2d at 180; Kirby v. Macon Public School Dist. No. 5, 169 Ill. App. 3d 416, 523 N.E.2d 643, 646, 119 Ill. Dec. 887 (4th Dist. 1988) (citing Kahn, 5 Ill. 2d 614, 126 N.E.2d 836). The mere occurrence of an accident does not make that accident foreseeable. A contrary rule would make the landowner an insurer of another's safety while on his premises. Beal, 517 N.E.2d at 714. The creation of a legal duty requires more than a mere possibility of an occurrence. Dunaway v. Ashland Oil, Inc., 172 Ill. App. 3d 712, 526 N.E.2d 950, 953, 122 Ill. Dec. 557 (5th Dist. 1988) (citing Cunis v. Brennan, 56 Ill. 2d 372, 376, 308 N.E.2d 617, 619 (1974)). The event causing the harm must have been reasonably foreseeable. "To establish reasonable foreseeability, plaintiffs must show that defendants could have foreseen that the event was possible; they must show the occurrence was 'objectively reasonable to expect.'" Dunaway, 526 N.E.2d at 953. The focus must be on what was apparent to the defendants at the time of their alleged negligent conduct. Beal, 517 N.E.2d at 714. Hindsight makes every occurrence foreseeable. Zimmerman v. Netemeyer, 122 Ill. App. 3d 1042, 462 N.E.2d 502, 506, 78 Ill. Dec. 383 (5th Dist. 1984).
There are numerous reported decisions which give the court guidance in conducting the foreseeability analysis. While a review of them is in order, what may be gleaned from these authorities is obviously affected by the special circumstances of this case.
This is not a case where a child or group of children were permitted to play unattended or unsupervised upon the defendants' property or did so with defendants' knowledge. See Dunaway, 172 Ill. App. 3d 712, 526 N.E.2d 950, 122 Ill. Dec. 557; Cole v. Housing Authority of LaSalle County, 68 Ill. App. 3d 66, 385 N.E.2d 382, 24 Ill. Dec. 470 (3d Dist. 1979). Neither is this a case in which a child or group of children were entrusted by their parents to an adult or organization in order to engage in supervised activities. See Castro v. Chicago Park District, 178 Ill. App. 3d 348, 533 N.E.2d 504, 127 Ill. Dec. 632 (1st Dist. 1988); Crohn v. Congregation B'Nai Zion, 22 Ill. App. 3d 625, 317 N.E.2d 637 (3d Dist. 1974); Stanley v. Board of Ed., 9 Ill. App. 3d 963, 293 N.E.2d 417 (1st Dist. 1973); Reid v. YMCA of Peoria, 107 Ill. App. 2d 170, 246 N.E.2d 20 (3d Dist. 1969). Beth O'Clair was in the sole custody of and under the supervision of her mother, Debra O'Clair, at the time of the incident leading to her death.
The parental duty of supervision has been cited by numerous reported decisions of the Illinois courts. Of these, five Illinois Appellate court decisions most clearly illustrate the interplay between the parent's duty of supervision and the element of foreseeability of harm to the child.
In Mooney v. Etheridge, 65 Ill. App. 3d 847, 382 N.E.2d 826, 22 Ill. Dec. 436 (2d Dist. 1978), an eight year old girl, on her way to ballet class, was struck and injured by an automobile immediately after her mother dropped her off on the other side of the street from the park district building in which the ballet lessons were held. Plaintiff sued the park district, arguing that it owed a duty to her to provide supervisory personnel or warning devices to assist the plaintiff in crossing the street. 382 N.E.2d at 830-31. The Mooney court affirmed the trial court's conclusion that, as a matter of law, the park district owed no duty to plaintiff. There was a safe manner in which the child could have gained access to the building. As the Mooney court noted, "the plaintiff remained with her mother who could have acted in the same capacity as a crossing guard. 382 N.E.2d at 831. Her mother also could have dropped her off on the same side of the street as the building. The decision to drop the child off in a manner which required her to cross the street "was a decision of plaintiff's mother who had the primary duty to protect the child." 382 N.E.2d at 830 (citing Driscoll, 219 N.E.2d at 486).
Kay v. Ludwick, 87 Ill. App. 2d 114, 230 N.E.2d 494 (4th Dist. 1967), involved a four year old child and her mother who were guests at defendant's home. The defendant was mowing his lawn with a power riding mower. The child, although "under the apparent if not actual care, custody, control and management of her mother," 230 N.E.2d at 497, attempted to climb aboard the moving vehicle and came in contact with the moving mower blade which severed her left heel.
The Kay court found that no duty was owing by defendant. It observed that, as "the operation of this mower was either fully known to the parent or patently obvious to the parent, . . . it seems clear that this mother observed no apparent harm in permitting her child to play in the yard while the mower was in operation." Id. at 497-98. The Kay court then went on to hold that:
It seems to us, therefore, that neither the "likelihood of injury" such as this record discloses nor the existence of an "apparent risk" of such an injury is such as to mark the conduct of this defendant as unreasonable. To promulgate a standard of conduct which requires a host to discontinue a mowing of his yard in the presence of minor children or in the alternative to tie the child to a bedpost is to impose upon a host an unrealistic burden and duty where such child or children are under the apparent or actual control of a parent or parents.
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