May 14, 1996
RONALD G. HENSON AND ALICE U. HENSON, AS INDEPENDENT CO-ADMINISTRATORS OF THE ESTATE OF REBECCA LYNN HENSON, A MINOR, NOW DECEASED, PLAINTIFFS-APPELLANTS, CROSS-APPELLEES,
DANNY L. ZIEGLER AND KATHIE J. ZIEGLER, INDIVIDUALLY AND AS SPOUSE OF THE OTHER, DEFENDANTS-APPELLEES, CROSS-APPELLANTS.
Appeal from the Circuit Court of the 10th Judicial Circuit, Marshall County, Illinois. No. 92-L-15. Honorable Robert A. Barnes, Jr., Judge, Presiding. This Opinion Substituted for Vacated and Withdrawn Opinion of February 10, 1995, Previously
Released for Publication June 20, 1996.
Present - Honorable Peg Breslin, Presiding Justice, Honorable William E. Holdridge, Presiding Justice, Honorable Tom M. Lytton, Justice, Presiding Justice Breslin delivered the opinion of the court: Holdridge, P.j., and Lytton, J., concur.
The opinion of the court was delivered by: Breslin
PRESIDING JUSTICE BRESLIN delivered the opinion of the court:
The plaintiffs, Ronald and Alice Henson, brought this wrongful death action following the drowning of six-year old Rebecca Henson in an above-ground swimming pool owned by the defendants, Danny and Kathy Ziegler. The defendants moved for summary judgment, arguing that they owed no duty of care to Rebecca, inasmuch as the swimming pool was an open and obvious danger which they reasonably expected Rebecca to avoid. The trial court agreed and granted summary judgment to the defendants.
In Henson v. Ziegler, 269 Ill. App. 3d 439, 646 N.E.2d 643, 207 Ill. Dec. 77 (1995), we held that an above-ground swimming pool was not an open and obvious danger to a six-year old girl, and thus reversed the trial court's grant of summary judgment. The supreme court vacated our decision and remanded it for us to reconsider the issue in light of Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 214 Ill. Dec. 156, 169 Ill. 2d 110, 660 N.E.2d 863 (1995). After reviewing Mt. Zion, we are constrained to abandon our prior decision and to affirm the trial court's grant of summary judgment.
The court in Mt. Zion squarely held that an above-ground swimming pool was an open and obvious danger to a six-year-old child. Mt. Zion, 169 Ill. 2d at 120, 660 N.E.2d at 870. As a result of the supreme court's decision, landowners in this State owe no duty to six-year-old children to protect them from dangers associated with above-ground swimming pools.
The court's holding in Mt. Zion compels a finding in this case that the defendants owed no duty of care to six-year-old Rebecca to protect her from dangers associated with their pool. The plaintiffs therefore cannot establish negligence on the defendants' part, and the trial court was correct to grant summary judgment to the defendants.
The judgment of the circuit court of Marshall County is affirmed.
HOLDRIDGE, P.J., and LYTTON, J., concur.
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