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02/10/98 MARCIA PATERSON v. MARK LAUCHNER

MARCIA PATERSON, AS PARENT AND NEXT FRIEND OF JONATHAN LAUCHNER, A MINOR, PLAINTIFF-APPELLANT,
v.
MARK LAUCHNER, INDIVIDUALLY AND AS AGENT AND/OR EMPLOYEE OF DUKANE FARMS, INC., DEFENDANT-APPELLEE.



PRESIDING JUSTICE GEIGER delivered the opinion of the court:

The plaintiff, Marcia Paterson, as parent and next friend of Jonathan Lauchner, appeals from the April 4, 1997, order of the circuit court of Kane County granting summary Judgement in favor of Jonathan's father, defendant Mark Lauchner. Jonathan was struck and injured by a tractor being driven by the defendant in the course of his employment with Dukane Farms, Inc. (Dukane). The trial court entered summary judgment on behalf of the defendant, ruling that he was immune from liability pursuant to the parent-child tort immunity doctrine. On appeal, the plaintiff argues that (1) the defendant was not immunized from liability because the negligent operation of a tractor is not inherent to the parent-child relationship; (2) regardless of the defendant's individual liability, Dukane is liable for Jonathan's injuries as the defendant's employer; and (3) the trial court committed reversible error by failing to consider the impact of liability insurance. We affirm in part, reverse in part, and remand for further proceedings.

On February 22, 1996, the plaintiff filed her complaint in the circuit court of Kane County. The complaint alleged that, on August 18, 1995, Jonathan Lauchner was injured by the left front wheel of a tractor that was being driven by the defendant. As noted above, the defendant was allegedly operating the tractor in the course of his employment with Dukane. Specifically, paragraph 6 of the complaint alleged that the defendant committed the following negligent acts:

"(a) operated and controlled tractor at an unreasonable and unlawful speed ***; (b) negligently and carelessly failed to keep a proper lookout; (c) failed to keep the tractor under proper and sufficient, or any, control, so that it could be readily stopped; (d) failed to properly supervise Jonathan Lauchner, of whom he had temporary custody, by allowing him to be in the vicinity of a dangerous vehicle; (e) otherwise negligently and carelessly maintained, operated, and controlled tractor."

On November 15, 1996, the defendant filed a motion for summary judgment, arguing that (1) there was no evidence that he had negligently maintained or operated the tractor; and (2) he was not liable for Jonathan's injuries under the parent-child tort immunity doctrine. In support of his motion, the defendant provided the transcript of his own deposition testimony as well as the transcript of the deposition testimony of his son Jonathan.

At the defendant's deposition, he testified that on the date in question he had visitation rights with Jonathan and Aaron, his two sons, pursuant to a prior divorce decree. He testified that he owned 50% of Dukane at the time of the accident. On the day of the accident, he was hired to spray weeds with a tractor on Indian Trail Road and had brought Jonathan and Aaron to work with him.

At approximately 2 p.m. on that date, the defendant had to move the tractor in reverse in order to complete the spraying procedure. Prior to moving the tractor, he and his two sons got out of the tractor. He took the two boys about 50 feet southeast of the tractor and told them to stay there. Then, he began to back up in the tractor. After 15 seconds, the defendant looked and saw that the two boys were in the same place. He testified that, as he continued backing up, the left front tire of the tractor ran over Jonathan's leg. The tractor was traveling at a rate of speed under three miles per hour.

Jonathan testified that on the date in question he and his brother, Aaron, accompanied their father on a tractor to spray chemicals on some weeds on the side of a road. At the time of the accident, Jonathan was 10 years old. At one point, the defendant told Jonathan and Aaron that he was going to take the tractor to the other side of the road. He told his sons to walk to the shade on the other side of the road and to stay out of the way. Jonathan did not say anything to Aaron as the defendant moved the tractor.

Jonathan turned and watched the defendant as he "backed" the tractor. Then, Aaron walked over to the tractor, and Jonathan followed, walking slowly. Aaron never asked Jonathan to follow him. Jonathan did not know that the tractor was beginning to turn towards him; he thought that the tractor was moving in a straight line. As the tractor turned, it ran over his leg. The defendant called for help, and Jonathan was taken to a hospital by ambulance. He was placed in a body cast.

On January 21, 1997, the plaintiff filed a response to the defendant's motion for summary judgment, arguing that (1) there was sufficient evidence in the record to conclude that the defendant's negligent operation of the tractor was the proximate cause of Jonathan's injuries; and (2) the defendant was not immune from liability under the parent-child tort immunity doctrine because operating a tractor cannot be considered conduct inherent to the parent-child relationship.

On April 4, 1997, following oral argument, the trial court granted summary Judgement in favor of the defendant. The trial court explained its ruling as follows:

"In the case at bar, the court finds that *** [the defendant] was *** exercising his non-custodial visitation privileges with his child. He took his child with him for a scheduled parent-child visitation. During his visitation with his child, there existed the parental responsibility to exercise supervision over his child. In exercising his supervision over his child during his visitation, the child violated the father's instructions and left the father's field of view and was injured.

This court finds that the arent[-]hild ort mmunity octrine applies under the situation in the case at bar ***. This situation is inherent to the parent-child relationship of supervision of the child during a visitation time. It constitutes an exercise of parental authority and supervision over the child."

On April 14, 1997, the plaintiff filed a notice of appeal.

The plaintiff first argues that, in light of our supreme court's holding in Cates v. Cates, 156 Ill. 2d 76 (1993), the trial court erred in granting summary Judgement based upon the parent-child tort immunity doctrine. She argues that the negligent operation of a ...


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