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February 28, 1996


Appeal from the Circuit Court of Lake County. No. 93--L--1053. Honorable Jack Hoogasian, Judge, Presiding.

Released for Publication April 2, 1996.

The Honorable Justice Inglis delivered the opinion of the court: McLAREN, P.j., and Doyle, J., concur.

The opinion of the court was delivered by: Inglis

The Honorable Justice INGLIS delivered the opinion of the court:

This appeal comes from an order of the circuit court of Lake County granting summary judgment for defendants, Youngin and Grace Kim (the Kims) in a tort action brought by B.T. (plaintiff), individually, and as next friend on behalf of his children T.T. and J.A.T. (minor plaintiffs). Plaintiffs alleged that as a result of the Kims' negligence, the minor plaintiffs injured themselves in the Kims' swimming pool. The circuit court granted the Kims' motion for summary judgment finding that they owed no duty because the pool was an obvious danger. Plaintiffs timely appeal, contending that the trial court erred in granting summary judgment. We reverse.

This tragic incident occurred on July 5, 1992. T.T. was three years old at the time and sustained minor personal injuries. J.A.T. was five years old and suffered irreversible brain damage. At the time of the accident, the parties were next-door neighbors. The Kims' backyard contained a built-in swimming pool. The backyard was enclosed by a fence with a gate which the Kims kept locked. The Kims were concerned that their young children and other children in the neighborhood would gain access to the pool. The only other entrance to the backyard was through an interior back door which the Kims also kept locked. No children were allowed to enter the backyard without adult supervision. The Kims' children, who were two and four at the time of the incident, were instructed about safety rules with respect to the pool. The minor plaintiffs, who often played with the Kim children, also were warned to stay away from the pool. However, neither the Kims' children nor the minor plaintiffs ever swam in the Kims' pool.

In August 1991, the Kims had the pool winterized. Some of the water in the pool was drained, leveling the water to approximately a foot or a foot and one-half below the concrete deck which surrounded the pool. The pool was covered with a dark green tarp. Mr. Kim stated that the tarp was placed on the concrete deck at each end of the swimming pool and the remainder of the tarp was stretched over the entire pool where water weights were placed on the edges of the tarp to keep it in place. There is no indication in the record how old the tarp was; Mr. Kim did not know where the previous owners had stored the tarp. Between August 1991 and the incident on July 5, 1992, the Kims never tested, inspected, or cleaned the tarp. Further, there is no evidence in the record that the children were instructed as to the dangers of walking or playing on or near the tarp. The tarp was thrown out after the incident.

Testimony taken from the depositions precludes a true description of the tarp at the time of the incident. It is unclear whether the tarp covered the entire pool, whether part of the tarp trailed in the pool water, or whether the tarp had sagged in the center. However, by July 1992, six inches of water had accumulated on the tarp and the water underneath had become dark, dirty, and filled with leaves and algae. It is not evident whether the water that had accumulated on the tarp covered the whole tarp or only the center of the tarp. A paramedic who assisted in the recovery of J.A.T. stated in his deposition that the tarp covered the northern three-quarters of the swimming pool. According to the paramedic, the southernmost quarter of the tarp appeared to have been pulled or pushed into the water and could not be seen. The pool water was so dirty that the bottom could not be seen.

Around 2 p.m. on July 5, 1992, Mr. Kim went outside to do some gardening and his children accompanied him. He began gardening in his backyard and removed the wire lock from the back gate. When he left the backyard to garden in the front yard, he closed the gate but was unsure whether the gate had closed and latched behind him. He planned on returning, however, so he did not replace the wire lock.

Later that afternoon, while Mr. Kim was gardening in the front yard, Mrs. Kim joined him. Plaintiff, who brought his children with him, went to the Kims' front yard to offer the use of his fertilizer spreader and to visit. Plaintiff and the Kims conversed while the minor plaintiffs played with the Kims' oldest child, Rachel. At some point, Mrs. Kim returned inside her home. Plaintiff also returned home to prepare dinner, leaving his two children playing in front of the Kims' home. Testimony is conflicting concerning the time during which Mrs. Kim was outside. Plaintiff stated that Mrs. Kim was watching the children when he returned home to prepare dinner. Mr. Kim stated that Mrs. Kim was inside their home at that time. In any event, Mr. Kim continued gardening after Mrs. Kim and plaintiff had left, while the children continued to play. Mr. Kim admitted that during this time he was concentrating on his gardening rather than supervising the children. When he completed his gardening in the front yard, Mr. Kim returned to the backyard. There he saw Rachel standing by the pool, and T.T. was lying in the middle of the tarp in the water that had accumulated. Because he could not reach T.T., Mr. Kim used a pool implement to pull her off of the tarp. When Mr. Kim asked Rachel where J.A.T. was, she told him that he was "swimming." Mr. Kim could not remember whether the tarp had been moved, but he could not move the tarp himself because it was too heavy. He did not see J.A.T. so he ran next door to plaintiff's house and rang the bell. When he received no answer, he ran back home and Mrs. Kim called 911.

Emergency medical personnel arrived at the scene within minutes. The paramedic stated that he saw children's shoes by the pool but did not remember how many were there. He also had difficulty finding J.A.T. in the water because of the tarp and the dark water. Approximately 16 minutes had passed from the time Mr. Kim first observed T.T. lying on the tarp until J.A.T. was pulled from the water.

Plaintiffs filed this action alleging that the Kims were negligent in: (1) failing to warn the minor plaintiffs about the dangers of playing in or near the swimming pool; (2) failing to restrict access to the swimming pool; (3) permitting the existence of a dangerous condition whereby the minor plaintiffs could gain access to the swimming pool without an adult's assistance; and (4) failing to keep the swimming pool covered when it was not in use. The Kims filed a motion for summary judgment asserting that it owed no duty to plaintiffs because the condition of the pool was open and obvious. The Kims also asserted that plaintiffs failed to establish the requisite element of causation because there exists no direct evidence as to causation and the true cause of the accident was plaintiff's own failure to supervise his children. Plaintiffs claimed, as they now claim on appeal, that the Kims had a duty under the law to keep their property free from dangerous conditions; and it was the acts and/or omissions of the Kims that caused the minor plaintiffs' injuries. The trial court agreed with the Kims and granted their motion for summary judgment.

We note at the outset that summary judgment is a drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt. Stevens v. Riley, 219 Ill. App. 3d 823, 829, 162 Ill. Dec. 534, 580 N.E.2d 160 (1991). The motion should be granted only if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1994). In determining the presence of a genuine issue of material fact, the court must construe the evidence strictly against the movant and liberally in favor of the opponent. Stevens, 219 Ill. App. 3d at 829. We conduct a de novo review of the trial court's decision to grant summary judgment. Rockford Memorial Hospital v. Department of Human Rights, 272 Ill. App. 3d 751, 754, 209 Ill. Dec. 471, 651 N.E.2d 649 (1995).

Plaintiffs contend that the Kims breached a duty owed to plaintiffs. A defendant landowner has a duty to protect children from harm where he knows or should know that young children habitually frequent the property, a dangerous condition is present on the property, the condition is likely to cause children injury because they are too immature to appreciate the risk involved, and if the expense of protecting children from the dangerous condition is slight compared to the risk of injury. Kahn v. James Burton Co., 5 Ill. 2d 614, 625, 126 N.E.2d 836 (1955). The supreme court has stated that the Kahn principle should not be construed to impose a duty on owners and occupiers to remedy conditions which are obvious to children and which the children generally would be expected to appreciate and avoid. Corcoran v. Village of Libertyville, 73 Ill. 2d 316, 326, 22 Ill. Dec. 701, 383 N.E.2d 177 (1978); see also Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 214 Ill. Dec. 156, 1995 Ill. LEXIS 206, 660 N.E.2d 863, ...

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