# Newby v. LAKE ZURICH COMMUNITY UNIT

> Appellate Court of Illinois · August 27, 1985 · 136 Ill. App. 3d 92

URL: https://www.frixlaw.com/law-library/cases/9518963

## Case

- **Full name:** KRISTEN NEWBY, a Minor, by Mary Newby, Her Mother and Next Friend, Plaintiff-Appellant, v. LAKE ZURICH COMMUNITY UNIT, DISTRICT 95, Defendant-Appellee
- **Court:** Appellate Court of Illinois
- **Decided:** August 27, 1985
- **Citations:** 136 Ill. App. 3d 92; 90 Ill. Dec. 778; 482 N.E.2d 1061; 1985 Ill. App. LEXIS 2368
- **Precedential status:** Published
- **Opinion:** Concurrence by Reinhard
- **Judges:** Unverzagt, Reinhard
- **Cited by:** 33 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/9518963

## Opinion text

JUSTICE REINHARD, specially concurring:
I agree with the result reached in the majority opinion, but specially concur because I believe the analysis should simply focus on plaintiff’s failure to plead that she, by reason of her age and immaturity, could not comprehend and avoid the risk of harm alleged. (See Cope v. Doe (1984), 102 Ill. 2d 278, 286 , 464 N.E.2d 1023 .) There can be no recovery for injury caused by a danger found to be obvious because there is no duty to remedy that condition. (Cope v. Doe (1984), 102 Ill. 2d 278, 286 , 464 N.E.2d 1023 .) As I perceive plaintiff’s argument, she contends that her allegations of wilful and wanton misconduct by the defendant school district are sufficient to impose liability on defendant even if she could comprehend and avoid the risk of harm. Such a contention is untenable in the light of Cope v. Doe and the authorities cited therein.
The duty owed to a child coming onto premises owned or in the possession and control of another, as first enunciated in Kahn v. James Burton Co. (1955), 5 Ill. 2d 614 , 126 N.E.2d 836 , arises only where “the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children.” (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 625 , 126 N.E.2d 836 .) And, as stated in Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316 , 383 N.E.2d 177 :
“On the other hand, the Kahn principle should not be construed to impose a duty on owners or occupiers to remedy conditions the obvious risks of which children generally would be expected to appreciate and avoid. Even if an owner or occupier knows that children frequent his premises, he is not required to protect against the ever-present possibility that children will injure themselves on obvious or common conditions.” ( 73 Ill. 2d 316, 326 , 383 N.E.2d 177 .)
Thus, even an allegation of wilful and wanton conduct will not impose a duty if the condition causing the injury would be an obvious risk which the child would be expected to appreciate and avoid. Plaintiff’s amended complaint failed to allege that by reason of her age and immaturity, she could not comprehend and avoid the risk of harm alleged, and, accordingly, was properly dismissed. It is evident, to me at least, that plaintiff, who was Ylxk years old at the timé of the accident, has attempted to avoid her obvious knowledge of the risk by attempting to create a theory of liability not recognized in previous cases.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9518963. Public record. Not legal advice.