Cope v. Doe

JUSTICE CLARK, dissenting:

In the instant case, a jury returned a verdict in favor of the plaintiff and the trial court entered judgment on that verdict. The appellate court then reversed the judgment of the circuit court and held that defendants were entitled to a judgment n.o.v. because the defendants owed no duty to plaintiff’s decedent as a matter of law. The majority has affirmed the judgment of the appellate court. I cannot agree with the majority of this court that the defendants in the case at bar owed no duty to plaintiff’s decedent as a matter of law. I believe that the questions of whether the retention pond was characterized by the developer as a “recreational facility,’’ whether the retention pond was an “ordinary body of water,” whether plaintiff’s decedent appreciated the perils the water presented, and whether the retention pond created a reasonably foreseeable risk of harm (the test for assessing liability), were all matters for determination by the jury. .

In Kahn v. James Burton Co. (1955), 5 Ill. 2d 614 , the appellate court reversed the judgment of the superior court of Cook County and remanded the cause with directions to enter judgment for the defendants because it held that as a matter of law the supplier of the lumber (upon which the plaintiff fell) was not guilty of any negligence, since there was no duty owed by the supplier. ( 5 Ill. 2d 614, 619-20 .) In that case, this court held that “the questions whether the lumber was so piled as to create an unreasonable danger to children playing thereon, and whether it was so attractive to children as to suggest the probability that children would climb onto it, were questions for the jury under the circumstances shown in the record.” 5 Ill. 2d 614, 621 .

In Kahn, this court stated:

“The creator of certain conditions dangerous and hazardous to children because of their immature appreciation of such dangers and hazards must be held to a certain standard of conduct for the protection of such children in accordance with the attendant circumstances and conditions. Account must be taken of the cost and burden of taking precautionary measures and of the right of families and society to rear and develop children with freedom of activity in their communities, without being subject to unreasonable risks which might cause serious injury or death to such children. *** The test in the case at bar is whether the lumber company in the exercise of ordinary care could reasonably have anticipated the likelihood that children would climb onto the lumber and would be injured if it were not securely piled.

We think the jury was justified in finding, from the condition of the lumber pile, its proximity to the intersection of two public alleys, the fact that it was delivered during summer vacation in a populous community, and other facts and circumstances in evidence, that defendant should have known it would be likely to attract children who might be injured if they climbed upon the lumber as it was piled. A verdict will not be set aside merely because the jury could have found differently or because judges feel that other conclusions would be more reasonable. (Lindroth v. Walgreen Co. 407 Ill. 121 .) In the trial of a law suit, questions of one’s due care, another party’s alleged negligence and the proximate cause of such injured party’s injuries and damages are pre-eminently questions of fact for a jury’s determination. Under our system of jurisprudence, jury determinations can be set aside only when a court of review, or a trial court upon proper motion, is clearly satisfied that they were occasioned by passion or prejudice or found to be wholly unwarranted from the manifest weight of the evidence. We think the trial court properly overruled defendant’s motion for judgment notwithstanding the verdict, and that the Appellate Court erred in deciding otherwise.” (Emphasis added.) ( 5 Ill. 2d 614, 622-23 .)

This court further stated:

“It is generally true, as defendant contends, that an owner or one in possession and control of premises is under no duty to keep them in any particular state or condition to promote the safety of trespassers or others who come upon them without any invitation, either express or implied. (Briney v. Illinois Central Railroad Co. 401 Ill. 181 ; Darsch v. Brown, 332 Ill. 592 .) It is also established that infants, as a general rule, have no greater rights to go upon the land of others than adults, and that their minority of itself imposes no duty upon the occupier of land to expect them or prepare for their safety. (Burns v. City of Chicago, 338 Ill. 89 ; McDermott v. Burke, 256 Ill. 401 .) It is recognized, however, that an exception exists 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. In such cases there is a duty upon the owner or other person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. (Wagner v. Kepler, 411 Ill. 368 .) The element of attraction is significant only in so far as it indicates that the trespass should be anticipated, the true basis of liability being the foreseeability of harm to the child. Whether the lumber pile was sufficiently attractive to entice children into climbing upon it, whether its condition would involve danger from such activity, and whether the contractor should have anticipated the probability of the accident, were matters for determination by the jury. City of Pekin v. McMahon, 154 Ill. 141 .” (Emphasis added.) ( 5 Ill. 2d 614, 625 .)

In Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316 , a case on which the majority relies, a two-year-old child fell into a ditch in a park near his home and suffered brain damage. In Corcoran, this court determined that “the ditch, as described in the pleadings, posed no reasonably foreseeable risk of harm to children.” ( 73 Ill. 2d 316, 329 .) This court also held that “[i]t [was] apparent that, in spite of plaintiffs’ attempts to characterize the ditch as one with particularly hazardous attributes, the pleadings, stripped of their conclusional emphasis, allege[d] nothing more than the risk of falling into a ditch, a risk which is incident to any common ditch or obvious depression in the ground and one which children generally would be expected to recognize and appreciate.” 73 Ill. 2d 316, 328 .

I believe that Corcoran and the instant case are clearly distinguishable. In the case at bar, we are not dealing with a ditch which was apparently determined to be a natural condition of the ground, we are dealing with a “retention pond” which the developer constructed to collect and retain surface water from the complex. (102 Ill. 2d at 281.) In Corcoran, there was also no evidence in the record to show that the ditch posed a reasonably foreseeable risk of harm to children. In the instant case, there was testimony that children frequented the pond to fish and used it for other recreational purposes; therefore it may have posed a reasonably foreseeable risk of harm to children.

I do not agree that a seven-year-old can appreciate the fact that water that is partially frozen actually creates a greater risk of drowning, the fact that if a pond is partially frozen, the water is at a temperature where a person who falls in may suffer from exposure, or the fact that if a person falls through a hole in the ice and goes down into the water, he or she may not come back up directly in line with his or her point of entry, become trapped under the surrounding ice, and be unable to come up for air. It may be apparent that if you step off the edge of a ditch you will fall in the hole. I do not think it is as obvious that if you stand on the frozen edge of a pond you will drown. In any event, I believe these issues were factual determinations to be made by the jury, and therefore I respectfully dissent.

GOLDENHERSH and SIMON, JJ., join in this dissent.