# Mt. Zion State Bank & Trust v. Consolidated Communications, Inc.

> Illinois Supreme Court · November 2, 1995 · 169 Ill. 2d 110

URL: https://www.frixlaw.com/law-library/cases/9516886

## Case

- **Full name:** MT. ZION STATE BANK & TRUST, Guardian of the Estate of Dale Beavers, Jr., a Minor, Appellee, v. CONSOLIDATED COMMUNICATIONS, INC., Appellant
- **Court:** Illinois Supreme Court
- **Decided:** November 2, 1995
- **Citations:** 169 Ill. 2d 110; 214 Ill. Dec. 156; 660 N.E.2d 863; 1995 Ill. LEXIS 206
- **Precedential status:** Published
- **Opinion:** Dissent by Harrison
- **Judges:** Freeman, Harrison
- **Cited by:** 184 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9516886

## How later opinions describe it (automated extraction)

- explaining that “[I]n a civilization based on private ownership, it is considered a socially desirable policy to permit a person use of his land in his own way, without the burden of watching for and protecting those who come there without permission or right”
- holding that under Illinois law defendant could reasonably expect that six-year-old child would appreciate the risk presented by swimming pool and therefore owed no duty arising out of defendant’s placement of utility pedestal next to fence around pool
- holding that the defendant could reasonably expect that a six-year-old child would appreciate the risk represented by a swimming pool and, therefore, owed no duty arising out of the defendant’s placement of a utility pedestal next to fence around pool
- stating that because the pleading must be reviewed de novo, whether Consolidated Communications, Inc., preserved its argument for consideration “is neither a limitation on the nature or the parameters of our review”
- holding that landowner owed no duty to protect 6year-old from obvious danger of drowning in pool

## Opinion text

JUSTICE HARRISON, dissenting:
The majority opinion confirms something that we should have known already: in Illinois, it is better to be a telephone company than to be a little boy. In In re Illinois Bell Switching Station Litigation (1994), 161 Ill. 2d 233 , this court decreed that phone companies can ruin a customer’s business with impunity. Today the court gives them license to maim our children. I did not agree with the first of these rulings, and I certainly cannot join in the second.
The majority’s analysis is based on the proposition that a child who is "old enough to be allowed at large by his parents” is old enough to appreciate the risks posed by "obvious dangers,” such as swimming pools. What my colleagues forget is that the child here was not "at large” and was not old enough to be "allowed at large.” According to the pleadings, he was just a six-year-old boy out playing in the backyard.
Under Illinois law, children under the age of seven cannot be guilty of contributory negligence. (Mort v. Walter (1983), 98 Ill. 2d 391, 395 .) That being so, I fail to see, as a matter of law, how little Dale can possibly be expected to have comprehended and avoided the risks posed by his neighbor’s above-ground pool. Not only is such a position irreconcilable with our rules on negligence, it defies common experience.
To a six-year-old, the danger posed by an above-ground pool is far from obvious. When my colleagues assert a contrary position, I see that it has been too long since they have been responsible for the care of small children, or even been in their company. To impute to such children the judgment and maturity the majority expects reminds me of the words once used by the Michigan Supreme Court in similar circumstances: "All of this is straight from outer space. It is pure, fantasy. It is unrelated to life on this earth.” Elbert v. City of Saginaw (1961), 363 Mich. 463, 480 , 109 N.W.2d 879, 887 .
The average six-year-old child cannot possibly know that an above-ground pool is apt to be deeper than he is tall, that there is no shallow end where he can stand safely, and that passers by will not be able to see him over the sides of the pool if he founders in the water. This is more than idle speculation on my part. According to figures compiled by the American Academy of Pediatrics, drowning is second only to automobile accidents in causing accidental death among children younger than 15. More than half of those drownings, the organization estimates, occur in swimming pools. (Cleveland Plain Dealer, July 22, 1993, at 8C.) If the risks posed by swimming pools were really so evident, why would our children be losing their lives with such frequency?
There is something else disturbing about the majority’s analysis. When my colleagues hold that a child allowed at large by his parents should be able to appreciate the danger posed by a swimming pool, what they really mean is that if Dale was not old enough to know that his neighbor’s pool was dangerous, his parents should have watched him more carefully. Thus, according to them, Dale’s mother and father must also share in the blame.
I regard this contention as profoundly offensive. If there is anyone in this tragedy who is blameless, it is Dale’s parents. Based on the pleadings, there is no basis for concluding that they deviated in any way from the applicable standard of care. If parents cannot allow their six-year-olds out in the backyard without having to hover over them every second to protect them from some new hazard a local utility has decided to create, we are subjecting them to a level of diligence they cannot possibly sustain.
The culpable party here is the phone company, not Dale’s mother and father. To say that it could not foresee the risk of injury defies comprehension. As a result of the high number of deaths and injuries caused to children by swimming pools each year, the importance of maintaining fences to protect children from unsupervised access to swimming pools has become well established. Such fences are now typically, required by local and county ordinances where, as here, homeowners have installed backyard pools. In Chicago and most of its suburbs, for example, any pool that is five or more feet deep must have a fence around it and a self-latching gate. Chicago Tribune, July 21, 1993, at 1.
While we do not know if Taylorville had such a requirement, no great sophistication is necessary to appreciate that in a suburban neighborhood, the very reason people place fences around their pools is to help keep local children away so they do not fall in and injure themselves when an adult is not present, as Dale did here. The risk of injury was patent, and it was totally ignored by the company. When they installed the pedestal next to the fence, they defeated the critical protection it provided just as surely as if they had sent a worker over to hold out his hands and give little Dale a boost over the top. That is surely something for which they should be made to answer.
In urging a contrary position, the majority relies on various evidentiary materials. This is improper in the context of a motion to dismiss under section 2 — 615 (735 ILCS 5/2 — 615 (West 1992)) for failure to state a cause of action. The only question presented by such a motion is whether sufficient facts are contained in the pleadings which, if established, would entitle the plaintiff to relief. (Illinois Graphics Co. v. Nickum (1994), 159 Ill. 2d 469, 488 .) Because a section 2 — 615 motion is based on the pleadings rather than on the underlying facts, affidavits, the products of discovery, documentary evidence not incorporated into the pleadings as exhibits, testimonial evidence or other evidentiary materials may not be considered by the court in making its ruling. (See Barber-Colman Co. v. A & K Midwest Insulation Co. (1992), 236 Ill. App. 3d 1065, 1068 .) A cause of action should be dismissed on the pleadings only if it is clearly apparent that no set of facts can be proven which will entitle a plaintiff to relief. Illinois Graphics Co., 159 Ill. 2d at 488 .
Ultimately, what is most absurd about the majority’s opinion is that it requires children to behave more sensibly than utility companies. My colleagues say that young children should know of the dangers of water, height and fire, but they have no similar expectation of a multimillion dollar corporation. Telephone companies are evidently free to act as irresponsibly as they want, as we saw earlier in In re Illinois Bell Switching Station Litigation (1994), 161 Ill. 2d 233 . There, the phone company lacked the sense to call the fire department when one of its own switching stations was burning down, and still, as here, the majority was able to turn the other way. I, for one, cannot understand this deference. No matter how valuable the service the phone company provides to its customers and shareholders, it is not worth allowing our children to be sacrificed. I therefore dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9516886. Public record. Not legal advice.