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Appelhans v. McFall

October 15, 2001


Appeal from the Circuit Court of McHenry County. No. 00-LA-96 Honorable Michael J. Sullivan, Judge, Presiding.

The opinion of the court was delivered by: Justice Byrne


Plaintiff, Maxine Appelhans, was walking along a rural road with no sidewalk when five-year-old defendant William McFall (William) collided with her while he rode his bicycle. Plaintiff suffered personal injuries and later filed her fourth amended complaint, in which she alleged that William rode his bicycle negligently and that his parents, defendants William and Stacy McFall, negligently failed to instruct him on the use of the bicycle or supervise him while he rode it. The trial court dismissed the complaint, and plaintiff appeals. Plaintiff now asks us to overturn the well-settled principle that a child is incapable of negligence if he is less than seven years old. She also argues that she was not required to allege specific facts that would render William's alleged negligence more foreseeable to his parents. We affirm.

In her fourth amended complaint, plaintiff alleged the following facts. On October 4, 1999, plaintiff, who was 66 years old at the time, was walking north along the eastern edge of McCabe Road in the Township of Nunda when William, who was five years old, rode his bicycle and struck plaintiff from behind. Plaintiff fell and suffered a fractured hip. At the time of the accident, it was daylight outside, the pavement was clear and dry, and no other pedestrians, automobiles, or bicyclists were present. The roadway in the area was straight and flat.

In count I, plaintiff alleged that William's parents negligently failed to (1) instruct their son on the proper use of his bicycle, or (2) supervise him while he rode his bicycle on a public roadway because they knew or should have known that his youth would prevent him from considering the safety of pedestrians such as plaintiff. Plaintiff alleged that her injuries were proximately caused by the parents' failure to supervise their son or teach him how to use his bicycle properly. In count II, plaintiff generally asserted that William negligently caused the collision.

Defendants filed a motion to dismiss pursuant to sections 2--615(a) and 2--619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2--615(a), 2--619(a)(9) (West 2000)). The trial court granted the motion, concluding that William's youth rendered him incapable of negligence and that plaintiff failed to allege specific facts that would have put William's parents on notice that he might ride his bicycle negligently. This timely appeal followed.


Defendants' motion to dismiss pursuant to section 2--619(a)(9) of the Code admits all well-pleaded facts in the complaint and all reasonable inferences drawn therefrom. See Siebert v. Bleichman, 306 Ill. App. 3d 841, 844 (1999). The trial court's dismissal under the section is subject to de novo review. See Siebert, 306 Ill. App. 3d at 844. The fact that disposes of this issue is undisputed: William was five years old when he collided with plaintiff.

On appeal, plaintiff contends that we should abandon the well-settled rule that a child is incapable of negligence if he is less than seven years old. She argues that we should adopt the "Massachusetts Rule," under which any child will be found capable of negligence if the fact finder decides that the child failed to exercise a degree of care that is reasonable for similarly situated children. Toetschinger v. Ihnot, 312 Minn. 59, 64, 250 N.W.2d 204, 208 (1977).

Section 283A of the Restatement (Second) of Torts (Restatement) mirrors the Massachusetts Rule and provides that "[i]f the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable person of like age, intelligence, and experience under like circumstances." Restatement (Second) of Torts §283A (1965). Comment b to section 283A further provides in relevant part:

"Some courts have endeavored to lay down fixed rules as to a minimum age below which the child is incapable of being negligent, and a maximum age above which he is to be treated like an adult. Usually these rules have been derived from the old rules of the criminal law, by which a child under the age of seven was considered incapable of crime, and one over fourteen was considered to be as capable as an adult. The prevailing view is that in tort cases no such arbitrary limits can be fixed. Undoubtedly there is a minimum age, probably somewhere in the vicinity of four years, below which negligence can never be found; but with the great variation in the capacities of children and the situations which may arise, it cannot be fixed definitely for all cases." Restatement (Second) of Torts §283A, Comment b (1965).

In 1886, our supreme court held that an injured child who was seven years and three months old at the time of the accident "was too young, at the time she was injured, to observe any care for her personal safety." Chicago, St. Louis & Pittsburgh R.R. Co. v. Welsh, 118 Ill. 572, 574 (1886). The court later expressly adopted the tender years doctrine, which states that a child is incapable of contributory negligence if he is less than seven years old. Chicago City Ry. Co. v. Tuohy, 196 Ill. 410, 422 (1902). Subsequently, the appellate court held that the adoption of comparative negligence in this state did not affect the validity of the tender years doctrine. Chu v. Bowers, 275 Ill. App. 3d 861, 864 (1995), citing Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 267 Ill. App. 3d 402 (1994), and Toney v. Mazariegos, 166 Ill. App. 3d 399 (1988). The rationale for the tender years doctrine is the belief that a child under the age of seven is incapable of recognizing and appreciating risk and is therefore deemed incapable of negligence as a matter of law. Chu, 275 Ill. App. 3d at 864. The child's immaturity limits his liability regardless of whether, as a litigant, he is the plaintiff or the defendant. Jorgensen v. Nudelman, 45 Ill. App. 2d 350, 352 (1963).

Initially, we address plaintiff's argument that the "open and obvious danger" rule is inconsistent with the tender years doctrine. She contends that William should be liable for the allegedly "open and obvious" danger he created for plaintiff because a court would hold him responsible for the open and obvious dangers he encounters himself. In Chu, the Appellate Court, Third District, rejected this argument, concluding that the open and obvious danger rule applies only to premises liability cases. Chu, 275 Ill. App. 3d at 866. The rule bars a minor's recovery where the danger associated with the condition that causes the injury is so apparent that the landowner could not reasonably foresee the condition causing any injury. Therefore, the court noted, the rule addresses the question of whether the defendant landowner is negligent rather than whether the child is negligent. Chu, 275 Ill. App. 3d at 866. Because the open and obvious danger rule addresses a defendant landowner's potential negligence and the tender years doctrine addresses a minor plaintiff's potential negligence, the two doctrines are not inconsistent. We agree with the Third District's analysis of this issue and reject plaintiff's argument accordingly. See Chu, 275 Ill. App. 3d at 866.

Defendants contend that we must follow the tender years doctrine simply because Illinois courts have applied it for nearly 100 years. Plaintiff responds that profound societal changes since the adoption of the rule undermine defendants' advocacy of stare decisis. Specifically, plaintiff asserts that the judiciary that crafted the rule did not envision "cable television, video games, the internet, pre-teen gangs, and violent crime." She argues that, in response to these modern-day challenges, children are instructed at an early age that they ...

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