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Farrell v. Farrell

Court of Appeals of Illinois, Third District

December 28, 2016

AUSTEN FARRELL, a Minor, by His Mother, Emily Scheel, Plaintiff-Appellant,
v.
STEPHANIE FARRELL, Defendant-Appellee.

         Appeal from the Circuit Court of the 13th Judicial Circuit, Bureau County, Illinois, Circuit No. 16-L-3 Honorable Cornelius J. Hollerich, Judge, Presiding.

          JUSTICE CARTER delivered the judgment of the court, with opinion. Presiding Justice O'Brien and Justice Schmidt concurred in the judgment and opinion.

          OPINION

          CARTER JUSTICE.

         ¶ 1 Plaintiff, Austen Farrell, by his mother, Emily Scheel, filed a complaint against defendant, Stephanie Farrell, claiming that defendant acted negligently with regard to an incident on her property in which plaintiff was injured while riding a dirt bike. Plaintiff appeals the trial court's grant of summary judgment in favor of defendant. We affirm.

         ¶ 2 FACTS

         ¶ 3 On August 21, 2015, plaintiff, who was 12 years old at the time, operated a dirt bike on property owned by defendant, his paternal grandmother. The property consisted of buildings, vacant land, paths, and planted cornfields. Plaintiff's dirt bike collided with an all-terrain vehicle (ATV) driven by another minor. Plaintiff was injured as a result of the collision.

         ¶ 4 Plaintiff filed a complaint against defendant alleging that defendant acted negligently in that she:

"a. Failed in her duty as owner and occupant of [the] real estate ***, that she failed to exercise ordinary care to the property which would be reasonably safe for the use of children, in that the owner failed to notify the children, that riding ATVs and dirt bikes could collide due to the operation of those vehicles and cause propelling of the passenger into the driver if there is a braking and/or a sudden stop caused by an object in the path.
b. Failed in her duties as owner and occupant, by inviting children on the property and then failing to see if the property was safe for the use of children riding ATVs and dirt bikes.
c. Failed in her duty to the invited children, as the [defendant] failed to warn the children of mature corn blocking the vision of the children while riding ATVs and dirt bikes, which was a danger.
d. Failed in her duty to the invited children in that the [defendant] failed to stay outside and/or supervise the invited children while riding ATVs and dirt bikes."

         ¶ 5 Defendant filed a motion for summary judgment arguing that she "owed no duty to protect [plaintiff] from the risk of danger associated with the operation of the dirt bike." The motion alleged that "at the time of the alleged incident, [plaintiff] was under the supervision of [Heath Farrell, plaintiff's father]." The motion argued that Heath, rather than defendant, had a duty to supervise plaintiff at the time of the incident.

         ¶ 6 An affidavit executed by Heath was attached to the motion for summary judgment. The affidavit stated that Heath was plaintiff's father, Scheel was Heath's former wife, defendant was Heath's mother, and the minor who plaintiff collided with was the daughter of Heath's fiancée. Heath was "extremely familiar with the area where the incident alleged in the Complaint took place." Heath stated that prior to the date of the incident, he gave plaintiff permission to ride a dirt bike or ATV on defendant's property. Heath was aware "prior to and on the date of the incident" that plaintiff would be riding the dirt bike or ATV without direct adult supervision and that other minors would be operating dirt bikes or ATVs at the same time. Heath stated that "at the time of the alleged incident I was the 'custodial parent' of my son, [plaintiff], and he was under my supervision." Heath stated:

"I have reviewed the allegations in the Complaint and the activities alleged therein to have taken place at the time of the alleged incident were such that they fall within the permission I had granted to my son, [plaintiff], and which I ...

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