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CORSON v. KOSINSKI

August 18, 1992

KENNETH CORSON, a minor, by his mother and next friend, LYNDA LONTZ, and LYNDA LONTZ, individually, Plaintiffs,
v.
BRUNO KOSINSKI and CAROLYN KOSINSKI, Defendants.



The opinion of the court was delivered by: MILTON I. SHADUR

MEMORANDUM OPINION AND ORDER

 Lynda Lontz ("Lontz") brings this action on behalf of herself and her minor child Kenneth Corson ("Corson") against Bruno ("Bruno") and Carolyn ("Carolyn") *fn1" Kosinski (collectively "Kosinskis"), seeking damages for injuries that Corson sustained when he fell from the roof of Kosinskis' apartment building. Kosinskis now move for summary judgment under Fed. R. Civ. P. ("Rule") 56. *fn2" For the reasons stated in this memorandum opinion and order, Kosinskis' motion is granted and this action is dismissed.

 Facts

 Corson, who lives with Lontz in Austin, Texas, spends each summer with his father and stepmother in Chicago (Corson Dep. 7). On the evening of July 17, 1989 Corson (then 10 years old) fell from the roof of Kosinskis' three-story apartment building located just down the block from his father's home on West Iowa Street.

 Access to the roof had to be gained through a back stairwell. Although the ground-level door to that stairwell was locked, each tenant kept a key to the door--it also provided ready access to the basement, which contained laundry facilities, fuse boxes and storage space. Evelyn Benitez ("Benitez"), who was about 11 years old in July 1989, was a tenant in Kosinskis' building and had on a few occasions used her parents' back stairwell key to let her friends in so they could go down to drink water in the basement or could go to the back porch of her parents' apartment. Because Benitez' apartment opened onto the back stairwell, she could also let her friends in by going through her apartment and opening the stairwell door from the inside (Corson Dep. 18-19; Benitez Dep. 7, 9, 11-12, 29-30, 34).

 On the morning of July 17 Benitez and Corson, along with Corson's 8-year-old brother David Corson and one other friend, were playing on the back stairwell after Benitez had opened the back door with her key. After spending some time in the stairwell, the children climbed to the top of the stairs and noticed a door to the roof that had been left slightly ajar (Corson Dep. 15, 21-25). That door was generally locked with a padlock to which only the building's maintenance people had keys, but the padlock was not in place on July 17 (Bruno Dep. 21-23; Corson Dep. 16; Benitez Pep. 14-15). Although none of the children had ever been on the roof before that day, they opened the door and all went out onto the roof (Corson Dep. 27-28; Benitez Dep. 31).

 Kosinskis' building, located on the corner of Iowa and Hoyne Streets, consisted of two parts that were connected in the middle. Even though the building had a different address and an entrance on each street, Bruno testified that "the building is all one piece, all one building" (Bruno Dep. 13; see also Carolyn Dep. 7-8). Thus the roof was one continuous surface, which was divided by a north-south firewall that was approximately 2-1/2 feet high and 15 inches wide (Corson Dep. 30-32; Bruno Dep. 15-16).

  In light of the legal principles over which the parties do battle (discussed later in this opinion), it had to be obvious to both counsel that the physical layout of the roof could well be critical to the decision on the current motion. Yet neither side saw fit to provide this Court with a schematic depiction that would convey a clear understanding of how Corson's fall came about. Finding that the unclear word descriptions *fn3" and limited photographs that had been tendered by the litigants were inadequate to the purpose, this Court asked for better evidence--and it was then given the report by Lontz' expert "forensic engineer" Irving Hazard ("Hazard"), *fn4" replete with 53 photographs and three schematics. Exhibit A to this opinion is one of those schematics, showing a plan view of the roof.

 In any event, Exhibit A shows the firewall occupying the north 22 feet or so of the two buildings, where they abutted each other directly. During the time that they spent on the roof in the morning, the children began to jump back and forth over the wall, which they could accomplish by taking a short running start (Corson Dep. 32-34). *fn5"

 Later that day the children (now joined by 8-year-old William Szczerba ("Szcserba")) returned to the roof again (the door to the roof was still unlocked) and resumed their wall-jumping game (Corson Dep. 44-48). After some time Corson moved to a different part of the roof--as shown in Exhibit A, its southeastern section (Szczerba Dep. 20, 34; Corson Dep. 51). On the other side of the wall (the west side) at that point was a light shaft that was not visible to Corson when he began his jump from the opposite side (the east side) of the wall. *fn6" Corson fell down the light shaft after jumping over the wall (Corson Dep. 51, 68).

 Until this Court requested and received Exhibit A and Hazard's numerous photographs, the litigants had furnished it with various witnesses' descriptions--which pretty well demonstrated the truth of the saying that a picture (or in this case a schematic drawing) is worth a thousand words. Thus Corson described the shaft this way (Corson Dep. 51):

 The side -- I was on the side closest to the door. There's, like, two sides. And I am right near the edge. And I'm running, and I jumped over the wall. And then there was an indention [sic] where the wall came in, and that's where I fell down. And I fell all the way down.

 Bruno described the indentation as "a curvature in here that leads the light into the bedroom over here" (Bruno Dep. 13), and Szczerba referred to it as "a little square pit thing going down" (Szczerba Dep. 20). Witnesses who saw the location on the ground where Corson landed said that Corson was "laying on the sidewalk [in a little space] between the two buildings" (B. Zuback Dep. 5), "in a light well" (Roche Dep. 19), and "in the-- kind of an alcove" (Cimochowski Dep. 9). After examining the building, Hazard gave more details, stating that the light shaft is 30-1/2 inches wide and "the entire light shaft is roughly 18 feet deep and you can see that part of it, the -- west portion of it is stepped" (Hazard Dep. 93).

 Kosinskis' Liability

 Kahn v. James Burton Co., 5 Ill.2d 614, 624, 126 N.E.2d 836, 841-42 (1955) abandoned the attractive nuisance doctrine in Illinois in favor of applying ordinary negligence principles to determine landowners' liability when children are injured on their property. That means a landowner is liable only if he or she has breached a duty owed to the child, and such a duty exists only if harm to the child was foreseeable ( Logan v. Old Enterprise Farms, Ltd., 139 Ill.2d 229, 237, 564 N.E.2d 778, 782, 151 Ill. Dec. 323 (1990); Cope v. Doe, 102 Ill.2d 278, 286, 464 N.E.2d 1023, 1027, 80 Ill. Dec. 40 (1984)). *fn7"

 Although the principles are stated in the same terms, the foreseeability of harm to children is of course somewhat different than it would be for adults. Its determination depends on two factors, both of which must be present to establish foreseeability and a corresponding duty to remedy the dangerous condition ( Cope, 102 Ill.2d at 286, 464 N.E.2d ...


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