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Ryan v. Yarbrough

February 4, 2005


Appeal from the Circuit Court of Du Page County. No. 01-L-830. Honorable Kenneth L. Popejoy, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

The City of Naperville and its employee, Robert E. Yarbrough (collectively, the City), appeal from the dismissal with prejudice of their third-party contribution complaint against Patricia Ryan. Patricia Ryan's grandson, Nicholas Ryan, was injured in an accident involving a City truck driven by Yarbrough, and Nicholas's parents sued defendants on Nicholas's behalf. The City filed contribution complaints against Nicholas's parents and grandmother, Patricia, who was baby-sitting Nicholas at the time of the accident. On appeal, the City argues that the trial court erred in dismissing the amended contribution complaint, because the amended complaint sufficiently alleged that Patricia negligently supervised Nicholas when she gave Nicholas permission to skateboard in the street, in violation of certain City ordinances. We agree with the City and reverse the dismissal of the amended complaint.

[9]     On August 9, 2000, Nicholas, who was then six years old, was riding a skateboard on a residential street in Naperville when he and a Naperville truck driven by Yarbrough collided, causing Nicholas injuries. Nicholas's parents, Timothy Ryan and Shannon Hoban-Ryan, sued the City on Nicholas's behalf, alleging that Yarbrough was acting within the scope of his City employment at the time of the accident and that he caused the accident by driving carelessly. The City filed a counterclaim for contribution against Nicholas's parents, and, once they learned that Patricia was caring for Nicholas at the time of the accident, they filed a third-party complaint for contribution against her as well. The original complaint was dismissed and the City filed an amended complaint.

The City's amended complaint alleged that, just before the accident, Patricia gave Nicholas permission to skateboard on the street. The City stated that skateboarding on the street violated two City ordinances and that Nicholas's specific actions while skateboarding violated several traffic laws. The City alleged that Patricia had a duty "to exercise ordinary caution and care for the safety of the minor Plaintiff, Nicholas Hoban, and to supervise him so that he did not violate any laws." Patricia moved to dismiss the complaint under section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 2000)), contending that the City failed to plead a claim for negligent supervision by failing to allege that Patricia had the requisite degree of control over Nicholas as required by section 316 of the Restatement (Second) of Torts. Restatement (Second) of Torts §316 (1965). The City responded that Patricia did have the opportunity to prevent Nicholas from violating the ordinances banning skateboarding in streets, because she specifically gave him permission to skateboard in the street. The court dismissed the complaint with prejudice, ruling that "the cases are very clear in that there must be that [sic] immediate vicinity where there can be control in regard to those acts of negligence *** of that minor child." The City now appeals, contending that it sufficiently pleaded Patricia's negligence when it alleged that she gave Nicholas permission to skateboard in the street and that skateboarding in the street is a violation of City ordinances.

A trial court should grant a motion to dismiss a complaint under section 2--615 of the Code only when the allegations in the complaint, construed in the light most favorable to the plaintiff, fail to state a cause of action upon which relief can be granted. Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 147 (2002). The court must accept as true all well-pleaded facts and inferences drawn from those facts. Oliveira, 201 Ill. 2d at 147. The complaint is to be construed liberally and should be dismissed only when it appears that the plaintiff could not recover under any set of facts. Dubinsky v. United Airlines Master Executive Council, 303 Ill. App. 3d 317, 323 (1999). We review de novo a dismissal under section 2--615. Oliveira, 201 Ill. 2d at 147-48.

The Joint Tortfeasor Contribution Act (Contribution Act or Act) provides, in pertinent portion:

"(a) Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them." 740 ILCS 100/2(a) (West 2000).

A well-pleaded contribution claim must allege that the third-party defendant is liable in tort to the injured party. 740 ILCS 100/2 (West 2000); Government Employees Insurance Co. v. Buford, 338 Ill. App. 3d 448, 456 (2003). Here, the City alleges that Patricia is liable in the tort of negligence to Nicholas. To state a cause of action for negligence, a complaint must allege facts that establish a duty, breach of that duty, and proximate causation. See Hough v. Kalousek, 279 Ill. App. 3d 855, 860 (1996).

The amended complaint in this case alleges facts that establish that Patricia owed a duty to Nicholas. A caretaker of a child has a duty to protect the child from harm. Parks v. Kownacki, 305 Ill. App. 3d 449, 461 (1999). The complaint alleges that Nicholas "was under the care and supervision of Patricia." This allegation establishes that Patricia owed Nicholas a duty to protect and supervise Nicholas. See Allstate Insurance Co. v. Mathis, 302 Ill. App. 3d 1027, 1030 (1999).

The amended complaint also alleges facts sufficient to establish that Patricia breached her to duty to supervise and protect Nicholas. The amended complaint alleges that "[i]mmediately prior to the occurrence, Nicholas Hoban asked Patricia Ryan's permission to skateboard on public streets." The complaint also alleges that it is unlawful to skateboard on Naperville streets and that Patricia had seen Nicholas fall off his skateboard "two or three times in the past." When viewed in a light most favorable to the City, these facts sufficiently establish that Patricia acted unreasonably when she gave Nicholas permission to ride his skateboard in the street. Further, the complaint alleges that Nicholas was injured by a truck when he skateboarded near an intersection. This is sufficient to establish that Patricia's alleged negligence was a proximate cause of Nicholas' injury. Accordingly, the trial court erred by dismissing the City's amended complaint for failure to state a cause of action.

Citing the Restatement (Second) of Torts, section 316, Patricia argues that she owed no duty to Nicholas because "parents are not liable for the torts of their children." This argument fails to recognize that the complaint alleges that Patricia, and not Nicholas, committed a tort. Thus, contrary to Patricia's contention, the City does not have to establish an exception to the rule enunciated by section 316, because it does not apply to this case. The cases cited by Patricia are not applicable to this case for the same reason section 316 is not applicable. The cases cited by Patricia discuss whether a parent had a duty to protect a third person from his or her child's negligence. Here, the complaint alleges that Patricia was negligent in supervising Nicholas and that her negligence was a proximate cause of Nicholas' injuries.

We feel constrained to respond to the issue of waiver; an issue not raised by the parties but by the dissent The fact that the City cited section 316 in its argument in its appellate brief does not constitute waiver of any other valid argument that its complaint sufficiently stated a cause of action outside of the parameters of section 316. The City did not cite section 316 as a basis for its contribution claim in its complaint. Patricia first raised section 316 in her motion to dismiss. The City discussed section 316 only as a response to Patricia's motion. Rather than pointing out that section 316 of the Restatement was a red herring, the City erroneously argued that section 316 supported its cause of action in contribution. The City's failure to correctly explain that section 316 does not apply does not constitute a waiver of all other valid arguments. It constitutes a non-meritorious argument.

When reviewing a trial court's order dismissing a complaint, we are charged with reviewing the complaint de novo to determine whether the plaintiff's allegations state a cause of action. Oliveira, 201 Ill. 2d at 147-48. The term "de novo" means that the court reviews the matter anew--the same as if the case had not been heard before and as if no decision had been rendered previously. Tatara v. Peterson Diving Service, 283 Ill. App. 3d 1031, 1037 (1996). Thus, when we review the matter de novo, we are not constrained to make the same mistake the trial court made when it based its decision on an argument that lacked merit. Not every possible argument is waived when one argument lacks merit. An argument of an otherwise properly preserved issue on appeal is waived when it fails to comply with Supreme Court Rule 341 (134 Ill. 2d R. 341) or another supreme court rule. In this case, the City's arguments regarding section 316 did not violate Supreme Court Rule 341 or any other rule. The City's attempt to reconcile section 316 with its complaint does not constitute waiver of all other valid arguments; rather, the section 316 argument merely lacks merit. Nevertheless, excluding the argument regarding section 316, the City sufficiently argued in its brief, and stated in its complaint, a cause of action in contribution against Patricia. Therefore, the judgment of dismissal with prejudice was reversible error.

We feel constrained to make some comment regarding the dissent. We find it baffling that the dissent fails to comprehend the following sentence contained in the City's first brief: "In the case at bar, the Third-Party Defendant could also step in and stop Nick from causing harm to himself by not granting permission to Nick to skateboard on the City's streets." This statement, in conjunction with the City's claim that Patricia violated a city ordinance prohibiting such activity by ...

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