finding a partially ice-covered retention pond was an open and obvious danger to a seven-year-old
How later courts described this case
- finding a partially ice-covered retention pond was an open and obvious danger to a seven-year-old
- the defendants owed no duty to seven-year-old child who drowned in their retention pond because the pond presented an obvious risk of drowning
- seven-year-old boy held to have been able to appreciate dangers of ice-covered pond
- wrongful death action against owner who built and developed apartment complex containing water retention pond partially covered with ice not sustainable because water hazard to seven-year-old drowning victim was open and obvious
Written by the judges who cited it.
The opinion
JUSTICE SIMON, also dissenting:
I join in Justice Clark’s dissent and add a few observations of my own.
In the last paragraph of its opinion the majority states that it “cannot say that it [the retention pond] presented perils that were not appreciated by the plaintiff’s decedent.” (102 Ill. withstanding the verdict when the evidence viewed in its aspects most favorable to the plaintiff so overwhelmingly favors the defendant that no verdict for the plaintiff could ever stand. A judgment n.o.v. cannot be entered in Illinois merely because the verdict is against the manifest weight of the evidence. Oberman v. Dun & Bradstreet, Inc. (7th Cir. 1974), 507 F.2d 349, 353 . I believe that to satisfy the Pedrick standard, it is necessary for the majority to be able to say affirmatively either that the retention pond presented no perils or dangers to a seven-year-old boy or that, if it did present such perils or dangers, they were fully appreciated by the plaintiff’s decedent. The majority opinion falls far short of a positive conclusion of the type that Pedrick requires.
This is understandable in view of the testimony of Kenneth Ringbloom, the defendant’s president, in which he stated in effect that the retention pond posed a danger to children because “any body of water is a danger to children.” (102 Ill. 2d at 281.) Other testimony which makes a judgment n.o.v. inappropriate in this case was that of the plaintiff and her cotenants that the manager of the apartment complex, Phillip Paniuski, had told them that the retention pond was a place for children who lived in the apartment complex to fish and to use for ice skating in the winter. In addition, I invite attention to the plaintiff’s testimony that, when the pond was frozen, she frequently saw children ice skating there, walking and sliding on the ice, and kicking pieces of wood around the ice. With that testimony, which for purposes of a judgment n.o.v. we must assume was true, I believe there was sufficient evidence for the jury to conclude that the defendants were negligent, for they knew the pond was a danger and that children who lived in the apartments were using the ice when the pond was frozen and yet did nothing to prevent them from using it or to warn them of the danger in using it. These children were in no sense trespassers and as residents
could reasonably have been expected to use the pond. On the basis of the evidence taken in its aspect most favorable to the plaintiff, the jury could have concluded that the defendants encouraged children who occupied the apartment complex to use the pond in the winter time without making any effort to warn them of the perils such use presented or to curtail the use.
JUSTICE CLARK joins in this dissent.