and accessible only to the building's maintenance people and the fact that Benitez (as well as the other children) had never been on the roof before).
That poses two somewhat different though related questions:
1. Are Kosinskis insulated from liability here because there is nothing to suggest that any child had previously gone onto the portion of the building where Kosinskis had to know that danger existed?
2. On the evidence presented, can it fairly be said (granting Lontz the benefit of reasonable inferences) that children "frequented" even the back staircase leading to that potential danger area?
Because neither side has really spoken to the first question in those terms, this Court will reverse the order of consideration and begin by addressing the second.
If the term "frequent" is to be given any substantive content as it must, that has to be done in relation to its purpose: the notion of actual or constructive notice to the landlord that access to the zone of hazard would likely be sought on the day that it actually occurred. In that sense Lontz strikes out. Even putting the best face on the evidence she presents:
1. Benitez was the only minor who was living in the building (and who thus had access to the locked back staircase at all).
2. During Benitez's 11-year stay in the building, she had taken friends into the back staircase no more than a half dozen times to go to the basement to get drinks of water, and on fewer occasions than that she had taken friends to the back porch area abutting her parents' apartment.
3. No one (including Benitez or any of the other children who were deposed) testified that the back staircase itself had ever been used as a play area, and no one spoke of ever having gone up the flights of stairs leading toward the roof area before the day of the occurrence.
4. Those adults who were deposed (either residing in the building or neighbors) and who spoke of the presence of children testified in a manner directly confirmatory of the children's testimony. To the extent that they spoke of children playing outside of the building, that is of course wholly irrelevant. And the only thing about which one tenant couple testified as their awareness of children's activity within the building was as to sometimes hearing children go through the back door to go out of the building--no tenant or any other adult testified as to even the limited use of the back staircase to which Benitez or her friends testified.
In sum, the evidence is insufficient as a matter of law to establish that children "frequented" the back staircase itself so as to bring knowledge of that home to Kosinskis. That being true, it really becomes irrelevant what precautionary measures the property owner took or might have taken to safeguard against accidents in presumably dangerous precincts.
This conclusion essentially moots the first question. But it may be observed in passing that if the proof had shown otherwise--if it could reasonably have been found that children had frequented the back staircase as a play area, so that Kosinskis would have been on notice of the likely presence of children at the top flight where the staircase opened out to the roof through the door located there, Kosinskis would not have been spared from liability simply because the children had not actually entered the roof area on other occasions. Even if the absence of a padlock on the door leading to the roof were a first-time occurrence (something as to which the record tendered to this Court is silent), and even if Kosinskis knew nothing about it (nothing indicates that they did), it is a fair inference that the failure to have barred access to the roof on the one occasion reflected negligence on the part of the building's maintenance person. And respondeat superior principles presumably would have placed that negligence on Kosinskis' doorstep.
Because a plaintiff in this type of action must establish two factors to show foreseeability and a property owner's corresponding duty to remedy the presumably dangerous condition, and because Lontz has failed to create a reasonable inference as to the first of those, this opinion might well stop here. In the interest of total analysis, however, it will go on to discuss the second factor as well.
Analysis of the second factor--the existence of a dangerous condition that caused the child's injury--is somewhat complicated as well. As for the concept of dangerousness, Cope has explained (102 Ill.2d at 286, 464 N.E.2d at 1027; accord, Logan, 139 Ill.2d at 235, 564 N.E.2d at 781):
The court in Corcoran defined a dangerous condition as one which is likely to cause injury to children generally who, by reason of their age and immaturity, would not be expected to comprehend and avoid the attendant risks.
In other words, obvious dangers, which even children would be expected to appreciate and avoid, do not give rise to a duty, because the obviousness itself renders it not foreseeable to the owner that the child will expose himself or herself to the danger and therefore suffer harm. As Corcoran has taught (73 Ill. 2d at 326, 383 N.E.2d 177 at 180, 22 Ill. Dec. 701 ; accord, Logan, 139 Ill.2d at 235-36, 564 N.E.2d at 781):
Even if an owner knows that children frequent his premises, he is not required to protect against the ever-present possibility that children will injure themselves on obvious or common conditions.
Among such obvious dangers, Cope, Corcoran and Logan have all adopted the view of the Restatement (Second) of Torts ("Restatement") § 339 cmt. j (1976) ( Logan, 193 Ill.2d at 236, 564 N.E.2d at 781, repeating the quotation of the Restatement in Corcoran, 73 Ill.2d at 327, 383 N.E.2d at 180 (emphasis in that case); accord, Cope, 102 Ill.2d at 286-87, 464 N.E.2d at 1027):
There are many dangers, such as those of fire and water, or of falling from a height, which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child * * *.
Because the risk of falling from a roof is obvious, then, landowners would not be liable for injuries that result from such a fall as such.
In some instances, however, factors may combine to make an otherwise obvious risk nonobvious. As Scarano v. Town of Ela, 166 Ill.App.3d 184, 190, 520 N.E.2d 62, 66, 117 Ill. Dec. 72 (2d Dist. 1988), again quoting Restatement § 339 cmt. j (emphasis in Scarano), has explained, the obvious-risk exculpatory rule is inapplicable in such situations:
To such conditions the rule stated in this Section ordinarily has no application, in the absence of some other factor creating a special risk that the child will not avoid the danger, such as the fact that the condition is so hidden as not to be readily visible, or a distracting influence which makes it likely that the child will not discover or appreciate it.
Similarly, although Corcoran, which involved a child falling into a ditch, found that the risk in that instance amounted to nothing more than that of an obvious depression in the ground, the court also observed (73 Ill.2d at 328, 383 N.E.2d at 181):
Under certain circumstances, the condition of a ditch in its surroundings may enhance the risks of injury to unsuspecting children and, in fact, be a danger to children. A ditch may pose such a danger because of its depth or because it is hidden from view or for other reasons.
Applying the same concept, Smallwood, 149 Ill.App.3d at 82, 500 N.E.2d at 638-39 held as a matter of law that a roof that contained an imperceptible slope and was slippery due to its worn and bubbled gravel and tar surface did not constitute an obvious hazard. And Pasierb v. Hanover Park Park District, 103 Ill.App.3d 806, 809-10, 431 N.E.2d 1218, 1220-21, 59 Ill. Dec. 461 (1st Dist. 1981) held that the combination of a creek frozen over with ice and concealed by a layer of snow created a danger that children could not be expected to appreciate because they could not see it. Novak v. C.M.S. Builders & Developers, 83 Ill.App.3d 761, 764, 404 N.E.2d 918, 921, 39 Ill. Dec. 327 (3d Dist. 1980) similarly held that an excavation, mounds of dirt and a concrete foundation created a special risk that was greater than that of simply falling into an obvious depression.
It is Lontz's burden to establish that the conditions surrounding Corson's fall created a greater than obvious danger ( Corcoran, 73 Ill.2d at 328, 383 N.E.2d at 181).
On that score Lontz argues that the danger in this instance was nonobvious because the light shaft was hidden from view and because the structure of the roof created an illusion that the roof was continuous.
First, she points out, the portion of the wall over which the children had been jumping ran across the middle of the building, with a roof surface on each side. That contributed to Corson's impression, when he approached a different part of the wall for the first time,
that the roof would also be continuous at that point (Corson Dep. 67). Another factor supporting that impression is the fact that all outer walls of the building were topped by a perimeter wall except for the edge of the light shaft into which Corson fell. Thus the absence of a perimeter wall there failed to alert Corson that the roof was discontinuous.
Finally, the dropoff could not be seen from the opposite side of the dividing wall and was blocked from view by the open roof door as the children entered onto the roof (Corson Dep. 68-69).
Based on those facts, a reasonable jury could conclude that the light shaft posed a hidden danger that would not have been obvious to Corson, so that he could not have been expected to avoid it.
Although the existence of a duty is a question of law for the court's decision ( Ross, 910 F.2d at 1427; Christon, 152 Ill.App.3d at 204, 504 N.E.2d at 265), whether a particular set of circumstances constitutes an extraordinary or nonobvious condition may at times constitute a factual issue properly left for jury determination ( Kahn, 5 Ill.2d at 623, 126 N.E.2d at 841; Halloran v. Belt Ry. Co., 25 Ill.App.2d 114, 120, 166 N.E.2d 98, 101 (1st Dist. 1960)).
And so if Lontz had been able to overcome the first of the two hurdles interposed by the Illinois cases as preconditions to recovery in cases such as this, the combination of favorable inferences from the record evidence plus some stretch in the application of the relevant legal principles would have kept her in court. But as said in the preceding section of this opinion, that first-level failure spells defeat for her lawsuit in all events.
Lontz has not succeeded in raising a material factual question as to both of the factors bearing on Kosinskis' liability: (1) whether or not Kosinskis should have known that children frequented the relevant "premises" in their building and (2) whether or not the structure of Kosinskis' roof constituted a hidden, nonobvious danger. There is thus no genuine issue of material fact, and Kosinskis are entitled to a judgment as a matter of law. This action is dismissed.
Milton I. Shadur
Senior United States District Judge
Date: August 18, 1992
[SEE EXHIBIT A IN ORIGINAL]