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02/14/96 CHRISTINA BARHAM v. ROBERT AND JUDY

February 14, 1996

CHRISTINA BARHAM, A MINOR, BY AND THROUGH HER MOTHER AND NEXT FRIEND EMMA BARHAM, AND EMMA BARHAM, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
ROBERT AND JUDY KNICKREHM, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois. No. 93-L-94. Honorable Patrick M. Burns, Judge Presiding.

Released for Publication March 20, 1996.

Honorable Peg Breslin, Presiding Justice, Honorable William E. Holdridge, Presiding Justice, Honorable Michael P. Mccuskey, Justice. Justice Holdridge delivered the opinion of the court: Holdridge, P.j., with Breslin, P.j., and McCUSKEY, J., concurring.

The opinion of the court was delivered by: Holdridge

The Honorable Justice HOLDRIDGE delivered the opinion of the court:

Plaintiffs, Christina Barham and her mother, Emma Barham, appeal from the dismissal of their two-count second amended complaint, which alleged in count I that Christina was injured in a swimming pool accident as a result of the negligence of the defendants, Robert and Judy Knickrehm, the owners of the pool. The sufficiency of count II, which alleged liability under a negligent entrustment theory, is not an issue on appeal.

The plaintiffs' original complaint and their first amended complaint were dismissed by the trial court for failure to state a cause of action (735 ILCS 5/2-615(a)(Michie 1995)). In response to the plaintiffs' second amended complaint, the Knickrehms again filed a motion to dismiss for failure to state a cause of action. The trial court granted the defendants' motion, finding that the complaint failed to plead facts alleging that the Knickrehms owed a duty to Christina, and failed to plead facts alleging that the actions of the defendants were the proximate cause of Christina's injuries. The trial court dismissed the complaint with prejudice and the plaintiffs filed this appeal. We affirm.

I. FACTS

Since a section 2-615 motion attacks only the legal sufficiency of the complaint on its face, we must accept as true all well-pleaded facts in the complaint and all reasonable inferences therefrom. Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 180 Ill. Dec. 307, 607 N.E.2d 201 (1991). Affirmative matters outside the face of the complaint may not be considered in ruling on a section 2-615 motion. Curtis v. County of Cook, 109 Ill. App. 3d 400, 65 Ill. Dec. 87, 440 N.E.2d 942 (1982). Taking all well-plead facts found within the four corners of the second amended complaint as true, the following facts are found in the record.

On July 7, 1988, 13-year-old Christina Barham was severely injured while using an above-ground swimming pool located at the rear of the defendants' residence. The swimming pool had a uniform depth of approximately 3 1/2 feet and a wooden deck immediately adjacent to the pool. The wooden deck allowed access to the pool at any point along approximately one-quarter of the circumference of the pool. The pool was surrounded by a pool-fence approximately 4 1/2 feet in height. A second fence approximately 5 feet tall surrounded the Knickrehm's back yard. The fence around the back yard had a gate that allowed direct access to the pool. Access to the pool was also permitted through the Knickrehm's house, which allowed access to the wooden deck. Neither of the gates that controlled access to the pool had a lock.

Although neither of the defendants were home at the time, Christina and several other minors used the swimming pool at the invitation of Dwayne Knickrehm, the defendants' minor son. The children entered the pool area through the Knickrehm's home. The defendants had instructed Dwayne not to allow children to use the pool while the defendants were not at home, but he failed to follow those instructions. Christina was injured when she struck her head or her neck, somehow fracturing her spine and leaving her a quadriplegic.

II. ANALYSIS

On review of the dismissal of an action under section 2-615 of the Code of Civil Procedure, the reviewing court applies the same standards with respect to the pleadings as the court below that initially heard the motion, i.e. we review the complaint de novo. Mt. Zion State Bank & Trust Co. v. Consolidated Communications, Inc., 214 Ill. Dec. 156, 1995 Ill. LEXIS 206, 660 N.E.2d 863, (1995); Ross v. City of Chicago, 168 Ill. App. 3d 83, 87, 118 Ill. Dec. 760, 522 N.E.2d 215 (1988).

The rules governing motions to dismiss complaints are well-settled. The court must determine the legal sufficiency of a complaint taking as true all well-pleaded facts and the inferences to be drawn from those facts. Pleadings are to be liberally construed (735 ILCS 5/2-603(c)(Michie 1995)), and a pleader is not required to set out his evidence, but only the ultimate facts to be proved. A pleading may not be dismissed unless it clearly appears that no set of facts can be proved that will entitle the plaintiffs to recover. Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 152 Ill. Dec. 121, 565 N.E.2d 654 (1990). A complaint, however, is insufficient if it states mere conclusions, whether of fact or law, ( McCauley v. Chicago Board of Education, 66 Ill. App. 3d 676, 23 Ill. Dec. 464, 384 N.E.2d 100 (1978)), and a complaint must minimally allege facts sufficient to set forth the essential elements of the cause of action. Woodill v. Parke Davis & Co., 58 Ill. App. 3d 349, 15 Ill. Dec. 900, 374 N.E.2d 683 (1978), aff'd and remanded, 79 Ill. 2d 26, 37 Ill. Dec. 304, 402 N.E.2d 194 (1980).

Applying these well-settled standards to the matter sub judice, we conclude that the trial judge properly determined that the plaintiffs had failed to allege facts that would support a finding that the actions of ...


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