O'Clair v. Dumelle

• Decision Date: 21 February 1990
• Docket Number: No. 88 C 8966.,88 C 8966.
• Citation: 735 F. Supp. 1344
• Parties: Debra O'CLAIR, Plaintiff, v. Frank DUMELLE, III and, Constance G. Dumelle, Defendants.
• Court: U.S. District Court — Northern District of Illinois

735 F. Supp. 1344

Debra O'CLAIR, Plaintiff,¹ v. Frank DUMELLE, III and, Constance G. Dumelle, Defendants.

No. 88 C 8966.

United States District Court, N.D. Illinois, E.D.

February 21, 1990.

Sidney Ezra, Chicago, Ill., for plaintiff.

Stephen E. Sward, Mary G. Broderick, Rooks, Pitts and Poust, Chicago, Ill., for defendants.

ORDER

NORGLE, District Judge.

Before the court is the motion of defendants', Frank Dumelle, III and Constance G. Dumelle (the "Dumelles"), pursuant to Fed.R.Civ. 56(b) for summary judgment on the five count amended complaint of plaintiff, Debra O'Clair.

Rule 56(c) of the Federal Rules of Civil Procedure provides that a summary judgment "shall be rendered forthwith if the pleadings, deposition, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R. Civ.P. 56(c). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A plaintiff cannot rest on mere allegations of a claim without any significant probative evidence which supports his complaint. Id.; see First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims and defenses." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Accordingly, the nonmoving party is required to go beyond the pleadings, affidavits, depositions, answers to interrogatories and admissions on file to designate specific facts showing a genuine issue for trial. Id.

FACTS

The following facts submitted by the Dumelles are supported by the record and are adopted, with minor revisions, as the undisputed facts in this matter.

During 1987, the Dumelles owned eight to ten acres in a rural area in Marengo, McHenry County, Illinois. Transcript of the Deposition of Robert Nagy ("Nagy" Dep.) p. 7. The Dumelles had a house, barn, stable, chicken coop, riding area, wheat and hay fields and horses. Id. Also, on this land, adjacent to their house, was an above-ground swimming pool.

In September, 1987, Debra O'Clair, and her three-year old daughter, Beth O'Clair, both residents of Massachusetts, visited the Dumelles for one day. Transcript of the deposition of Debra O'Clair, Exhibit C to defendants' motion for summary judgment p. 18-19. During that visit, Debra O'Clair became aware that the Dumelles had an above the ground swimming pool in their back yard, which was connected to the living room of the house by a deck. Exhibit C, p. 21; Nagy Dep., p. 9.

Sometime after the September, 1987 visit, Debra O'Clair was called in Massachusetts from the Dumelles' home by her friend, Rob Nagy, who was visiting the Dumelles, and invited to visit the Dumelles again. Exhibit C, p. 26-27. Debra O'Clair told the Dumelles that she would come to visit them for a second time. Exhibit C, p. 27-28. Debra O'Clair and Beth arrived at the Dumelles, with Rob Nagy, sometime during October, 1987. Exhibit C, p. 23. It was Debra O'Clair's intention that they stay with the Dumelles for a couple of weeks, Exhibit C, p. 35, and they had been at the Dumelles for about two weeks at the time of the incident. Exhibit C, p. 48.

Debra O'Clair was aware that the swimming pool was present when she returned to the Dumelle home and that the swimming pool had water in it. Exhibit C, p. 38. Debra O'Clair knew that Beth had played near the swimming pool and had told her not to go near it. Once, when she saw Beth get a bucket and attempt to get water out of the pool with it, Debra ran and grabbed her. Exhibit C, p. 40-41. Debra O'Clair was also aware that Beth had toys in the Dumelles' backyard, where the swimming pool was located. Exhibit C, p. 54. Debra described the water in the pool as "gross," "disgusting" and "dirty." Exhibit C, p. 56.

The Dumelles were planning to get up early and leave their home to pick up some horses on the morning of November 1, 1987. Debra O'Clair knew that the Dumelles would be leaving their home "really early." Exhibit C, p. 58. When Debra O'Clair woke up on November 1, 1987, she went into the living room and spoke with the Dumelles. The Dumelles told Debra O'Clair that they were leaving the premises to pick up some horses. Exhibit C, p. 61. Debra O'Clair understood that she, as Beth's mother, was responsible for looking after Beth. Exhibit C, p. 102. At that time, Beth was on the floor of the living room in her pajamas watching television and coloring. Exhibit C, p. 60, 62-63. It was rainy and cold, about 40 degrees, outside. Nagy Dep., p. 22.

Debra O'Clair was aware that the sliding glass door in the living room, which lead to the deck connecting the house to the pool, had been kept unlocked on a regular basis by the Dumelles. Exhibit C, p. 76. Debra O'Clair was also aware that Beth was capable of opening the unlocked sliding glass door by herself. Exhibit C, p. 82. Debra O'Clair did not ask the Dumelles to lock the sliding glass door when they left their home on the morning of November 1, 1987, Exhibit C, p. 101, and she did not check the door to seek if it was locked or unlocked. Exhibit C, p. 83.

Shortly, after the Dumelles left the premises, Debra O'Clair went back to a bedroom to speak with Rob Nagy for a period of about 15 to 20 minutes. Beth sat in the living room in front of the television, Exhibit C, p. 62-63, next to the unlocked sliding glass door which led to the pool. Exhibit C, p. 95. Debra O'Clair could not see Beth from her location in the bedroom. Exhibit C, p. 63. Debra O'Clair checked on Beth four or five times in a 15 to 20 minute period. Exhibit C, p. 63.

After approximately 20 minutes, Debra O'Clair noticed that Beth was missing, and searched for her. Debra O'Clair did not look into the pool for Beth when she realized that her daughter was missing. She looked for Beth in the house and in the surrounding neighborhood. Exhibit C, p. 65, 70. Beth was found by Rob Nagy in the swimming pool. Exhibit C, p. 64-69, 74; Nagy Dep., p. 27. Debra O'Clair and Rob Nagy took Beth to Memorial Hospital. Exhibit C, p. 85-86. Beth was transferred to Rockford Hospital later in the day, where she was pronounced dead. Exhibit C, p. 88, 90.

On October 21, 1988, Debra O'Clair filed a complaint against the Dumelles alleging that their negligence resulted in the drowning death of Beth O'Clair. Specifically, she alleged that the Dumelles disregarded their duty to Beth by (1) failing to keep the sliding door in the family room, which lead to pool, locked, (2) failing to drain the pool properly, (3) failing to cover the pool, (4) failing to fence the pool, (5) failing to replace the pool ladder, and (6) failing to remove toys from the pool. The Dumelles answered on January 6, 1989, denying all allegations of negligence, and now move for summary judgment based on the absence of any duty owing from themselves to Beth O'Clair.

DISCUSSION

Beth O'Clair's death is truly a tragedy. Emotions are stirred by the story of a young child deprived of the opportunity to enjoy the promises of life. Sympathy for her mother is evoked. A desire may arise to compensate for the death of a child and the loss of a daughter in the only way the law can — monetarily. Yet, emotion cannot prevail. Compassion for the mother on the loss of her child must yield to justice for the faultless accused. That one has sustained a loss is not sufficient to require a third party to compensate for that loss. As stated by the Illinois Supreme Court:

It is always unfortunate when a child gets injured ... or killed ... while playing, but a person who is merely in possession and control of the property cannot be required to indemnify against every possibility of injury thereon. The responsibility for a child's safety lies primarily with its parents, whose duty it is to see that his behavior does not involve danger to himself. Others can be held responsible for injuries only if they are at fault under some recognized theory of liability.

Driscoll v. C. Rasmussen Corp., 35 Ill.2d 74, 219 N.E.2d 483, 486 (1966);² see also Gille v. Winnebago Housing Authority, 44 Ill.2d 419, 255 N.E.2d 904, 907-08 (1970).

Any legal obligation to compensate under these circumstances can only follow from a determination that the Dumelles were negligent, not from the mere fact that the loss — Beth's death — occurred on the Dumelle's property. Negligent behavior has occurred where defendant breached a duty owing to plaintiff proximately causing the injuries sought to be compensated. Beal v. Kuptchian, 164 Ill.App.3d 191, 517 N.E.2d 712, 713 (5th Dist.1987); Petrik v. Monarch Printing Corp., 150 Ill.App.3d 248, 501 N.E.2d 1312, 1316 (1st Dist.1986).

The first element which must be established is, of course, the existence of a duty owing from defendant to plaintiff. If no duty existed, it is axiomatic that no recovery can occur. Keller By Keller v. Mols, 129 Ill.App.3d 208, 84 Ill.Dec. 411, 413, 472 N.E.2d 161, 163 (1st Dist.1984); Beal, 517 N.E.2d at 714. "Whether under the facts of a case such a relationship exists between the parties as to require that a legal obligation be imposed upon one for the benefit of another is a question of law to be determined by the court." Keller, 84 Ill.Dec. at 413, 472 N.E.2d at 163; see also Mieher v. Brown, 54 Ill.2d 539, 541, 301 N.E.2d 307, 308 (1973); Beal, 517 N.E.2d at 713.

Although this concerns the potential liability of an owner of land for injuries sustained by a child as a result of an allegedly dangerous condition, Illinois has long since abandoned the concept of attractive nuisance — determining that the liability of owners and occupiers of land would be...