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11/02/95 MT. ZION STATE BANK & TRUST v.

November 2, 1995

MT. ZION STATE BANK & TRUST, GUARDIAN OF THE ESTATE OF DALE BEAVERS, JR., A MINOR, APPELLEE,
v.
CONSOLIDATED COMMUNICATIONS, INC., APPELLANT.



Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Christian County, the Hon. David W. Slater, Judge, presiding.

Rehearing Denied January 29, 1996.

The Honorable Justice Freeman delivered the opinion of the court: Justice Harrison, dissenting.

The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

On June 9, 1991, six-year-old Dale Beavers, Jr. (plaintiff), suffered injury from a near-drowning in a swimming pool located on the property at 407 West First Street in Taylorville, Illinois. Mt. Zion State Bank & Trust, as guardian of the plaintiff's estate, filed a second-amended complaint in the circuit court of Christian County against defendants, Consolidated Communications, Inc. (Consolidated) (counts I and II), and Erlbacher Materials, Inc. (counts III and IV), seeking damages for injuries sustained as a result of the incident. Plaintiffsubsequently dismissed counts III and IV from the complaint.

In lieu of an answer, Consolidated filed a motion to dismiss the complaint for failure to state a cause of action. (735 ILCS 5/2-615(a) (West 1992).) The trial court granted Consolidated's motion and plaintiff appealed. The appellate court reversed (267 Ill. App. 3d 402, 641 N.E.2d 1228, 204 Ill. Dec. 609), and we granted Consolidated's petition for leave to appeal (145 Ill. 2d R. 315). The Illinois Trial Lawyers Association was granted leave and filed a brief amicus curiae in support of plaintiff. (See 134 Ill. 2d R. 345(a).) We now reverse the appellate court and affirm the circuit court's dismissal order.

THE COMPLAINT

Count I of the complaint attempts to state a cause of action for "ordinary negligence." Specifically, the complaint alleges that Consolidated erected, owned, operated, and maintained a telephone "utility pedestal" at or near the northwest corner of property located at 407 West First Street in Taylorville. The pedestal did not serve that property; Consolidated is neither the owner nor "legal occupier" of that property, and the pedestal is there without easement or other legal right.

Consolidated erected the pedestal adjacent to a "protective fence" surrounding an outdoor swimming pool and playground equipment at 407 West First Street. At all relevant times, the swimming pool and playground equipment located in the backyard of the First Street property were clearly visible.

Further, the complaint alleges that on June 9, 1991, at approximately 7:15 p.m., Dale Beavers, Jr., was playing in a portable wading pool in an adjacent back yard (417 West First Street). At that time, the swimming pool at 407 West First Street was totally enclosed by a "protective fence," which was gated and locked. Dale Beavers was a minor child, six years of age, and legallyincapable of exercising due care for his own safety. Dale used Consolidated's "utility pedestal" to climb over the "protective fence" and gain access to the 407 West First Street swimming pool.

Finally, count I alleges that Consolidated breached its duty of reasonable care to plaintiff by erecting and maintaining a pedestal of a size and shape which could be used by small children to defeat the "protective fence" and gain access to a swimming pool which presented an obvious hazard to small children. The negligent positioning and maintenance of the pedestal was "a proximate cause of entry into the swimming pool and the drowning injury" suffered by Dale Beavers.

Count II of the complaint realleges those facts alleged in count I, alternatively alleges that Consolidated was the legal occupier of the 407 West First Street property, and that its "utility pedestal" serviced that property. Couched in language intended to bring it within the principles enunciated in Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836, the complaint additionally alleges the following. Consolidated's placement of the pedestal next to a "protective fence" created a dangerous condition by providing small children with access to a swimming pool. Consolidated knew or should have known that the dangerous condition was likely to cause drowning injury to children under the age of reason, i.e., seven years of age, because of their inability to appreciate the risk involved. The pool was so attractive, alluring and tempting to minor children of tender age as to constitute an inducement to them to play in it. The burden of remedying the dangerous condition by moving the pedestal away from the protective fence was slight compared to the serious risk involved.

MOTION TO DISMISS

Regarding count I of the complaint, Consolidated asserted that it owed no duty of care to the minor plaintiff. Relying on the open and obvious danger doctrine, Consolidated argued that on June 9, 1991, the plaintiff child was old enough to roam unattended and, as such, the risk of drowning was obvious.

Further, Consolidated asserted that even if it owed a duty, its actions were not the proximate cause of the plaintiff's injury, because plaintiff was not injured either on or by the utility pedestal. In support, Consolidated argued that the minor plaintiff lived across the street and down the block from the owners of the pool. The minor utilized the telephone pedestal to climb over a 47-inch high fence, walked across the neighbor's yard to the far side of an above-ground swimming pool, stepped onto a light housing attached to the side of the pool, and climbed over the pool wall into the water.

Regarding count II of the complaint, Consolidated asserted that if the complaint purported to allege negligence under the "attractive nuisance doctrine," such doctrine had been abolished in Illinois. If, however, Count II was not brought under the "attractive nuisance doctrine," the count was repetitious of count I and should be dismissed.

ARGUMENT(S)

A section 2-615 motion should not be granted unless it clearly appears that no set of facts could ever be proved that would entitle the plaintiff to recover. ( Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 280, 60 Ill. Dec. 456, 433 N.E.2d 253.) In ruling on such a motion, only those facts apparent from the face of the pleadings, matters of which the court can take judicial notice, and judicial admissions in the record may be considered. (3 R. Michael, Illinois Practice § 27.4 (1989) (citing cases).) On review of an order granting a section 2-615 motion, all well-pleaded facts and all reasonable inferences from them are taken as true. First National Bank v. Mutual Trust Life Insurance Co. (1988), 122 Ill. 2d 116, 118, 118 Ill. Dec. 615, 522 N.E.2d 70; Mein v. Masonite Corp. (1985), 109 Ill. 2d 1, 7, 92 Ill. Dec. 501, 485 N.E.2d 312.

Plaintiff here attempts to state a cause of action for negligence. To properly state such a cause, a plaintiff must plead that the defendant owed a duty of care to the plaintiff, that the defendant breached that duty, and that the breach was the proximate cause of the plaintiff's injuries. Thompson v. County of Cook (1993), 154 Ill. 2d 374, 382, 181 Ill. Dec. 922, 609 N.E.2d 290; Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 421, 170 Ill. Dec. 418, 592 N.E.2d 1098.

A duty is an obligation to conform to a certain standard of conduct for the protection of another against an unreasonable risk of harm. ( Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 554, 328 N.E.2d 538.) Whether such a duty exists is a question of law, the determination of which must be resolved by the court. ( O'Hara v. Holy Cross Hospital (1990), 137 Ill. 2d 332, 337, 148 Ill. Dec. 712, 561 N.E.2d 18.) If no duty exists, it is axiomatic that no recovery can occur.

Generally, a landowner owes no duty of care to a trespassing adult except not to willfully or wantonly injure him. Infants have no greater right than do adults to go upon the land of another. Their minority, in and of itself, imposes no duty upon an occupier of land to either expect them or prepare for their safety. ( Kahn, 5 Ill. 2d at 625; see also 740 ILCS 130/3 (West 1992) (Premises Liability Act).) The responsibility for a child's safety lies primarily with his or her parents, whose duty it is to see that the child is not placed in danger. Driscoll v. Rasmussen Corp. (1966), 35 Ill. 2d 74, 79, 219 N.E.2d 483.

In cases involving personal injuries to children, we no longer rely upon the attractive nuisance doctrine to assess liability. Instead, the customary rules of ordinary negligence cases apply. ( Kahn, 5 Ill. 2d at 624.) As in the case of adult trespassers, an owner or occupier of land owes no duty to a trespassing child except not to willfully or wantonly injure him.

The "no duty" rule is not, however, without exception. Since Kahn and its progeny, a duty is imposed upon an owner or otherperson in possession and control of the premises to exercise due care to remedy a dangerous condition on the land or to otherwise protect children from injury resulting from it where: (1) the owner or occupier of the land knew or should have known that children habitually frequent the property; (2) a defective structure or dangerous condition was present on the property; (3) the defective structure or dangerous condition was likely to injure children because they are incapable, because of age and maturity, of appreciating the risk involved; and (4) the expense and inconvenience of remedying the defective structure or dangerous condition was slight when compared to the risk to children. (See Kahn, 5 Ill. 2d at 625; see also Restatement (Second) of Torts § 339, at 197 (1965) (liability to trespassing children for artificial conditions on the land).) ...


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