Cooper v. Meyer

• Court: Appellate Court of Illinois
• Writing for the Court: EBERSPACHER; CARTER, P. J., and GEORGE J. MORAN
• Citation: Cooper v. Meyer, 50 Ill.App.3d 69, 365 N.E.2d 201, 7 Ill.Dec. 916 (Ill. App. 1977)
• Decision Date: 23 June 1977
• Docket Number: No. 76-521,76-521
• Parties: , 7 Ill.Dec. 916 Penny COOPER, Plaintiff-Appellant, v. James R. MEYER and Danny Meyer, Defendants-Appellees.

Page 201

365 N.E.2d 201

50 Ill.App.3d 69, 7 Ill.Dec. 916

Penny COOPER, Plaintiff-Appellant, v. James R. MEYER and Danny Meyer, Defendants-Appellees.

No. 76-521.

Appellate Court of Illinois, Fifth District.

June 23, 1977.

David M. Correll, Douglas & Correll, Robinson, for plaintiff-appellant.

Edward Benecki, Gosnell, Benecki, Borden & Enloe, Ltd., Lawrenceville, for defendants-appellees.

EBERSPACHER, Justice.

This is an appeal taken by the plaintiff, Penny Cooper, from the dismissal with prejudice of count III of her amended complaint in the circuit court of Lawrence County. The dismissal was granted in response to the defendant, James R. Meyer's, motion to dismiss for failure to state a cause of action.

There is but one issue before this court at this time in this case. The plaintiff seeks the reversal of the trial court's dismissal of count III of the amended complaint. The plaintiff contends that the trial court erred in determining "that a cause of action could not be stated against a parent when the actual injury was inflicted by a minor." However, the actual holding of the trial court was "that said count III of the amended complaint does not state a cause of action under the present status of the Illinois law." We are in this appeal dealing with but count III of the amended complaint and the allegations contained therein.

The facts which brought this matter before the court are as follows. The plaintiff went to the defendant's house to advise him that a child of hers had been struck by a "brick bat" thrown by a minor child of the defendant. The defendant was not home at the time, but Danny Meyer, an older but still minor child of the defendant, was at home and the plaintiff informed him of the incident. Danny Meyer, it is alleged, then flew into a rage and wilfully and maliciously attacked the plaintiff by striking her with his hands. She was knocked to the ground. This attack by Danny Meyer resulted in a fractured jaw to the 28 year old plaintiff as well as other less serious injuries.

Count III of the amended complaint in substance alleges:

1. On November 4, 1975, plaintiff called at the residence of this defendant to advise him his younger son (not a party, having been dismissed out) had thrown a "brick bat" at plaintiff's child.

2. On said date, defendant was not present on said premises, but his other son, Danny Meyer (a remaining defendant), was.

3. That Danny Meyer wilfully and maliciously assaulted plaintiff at said time and place.

4. At said time and place Danny Meyer was a minor under the age of 19 years.

5. That this defendant, James R. Meyer, was negligent in that:

(a) He knew Danny Meyer had propensities to attack persons.

(b) Notwithstanding the said propensity of Danny Meyer, defendant failed to:

(1) "Warn the public at large of the potential danger to health, safety or property rights constituted by the conduct of Danny Meyer";

(2) "Failed to adequately supervise Danny Meyer"; and

(3) "Failed to restrain Danny Meyer to prevent him from intentionally attacking persons."

6. That because of the negligence charged against defendant, plaintiff was injured.

7. That plaintiff was in the exercise of due care for her own safety.

We must decide whether count III states a cause of action. Our Supreme Court has determined that whether or not a complaint states a cause of action is a question of law to be decided by the court. The principle was set forth in Barnes v. Washington, 56 Ill.2d 22, 26, 305 N.E.2d 535, 538, where the court states:

"Whether under the facts of a case such a relationship exists between two 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."

It is axiomatic that a complaint, in order to state a cause of action, must contain allegations of such facts, as are necessary for the plaintiff to prove to entitle him to prevail against the defendant. Byron v. Byron, 391 Ill. 256, 62 N.E.2d 790; City of Elmhurst v. Kegerreis, 392 Ill. 195, 64 N.E.2d 450.

A general rule is that parents are not liable for the torts of their children merely because of the relationship. (White v. Seitz, 342 Ill. 266, 174 N.E. 371.) An exception to the general rule is stated in § 316, Restatement of Torts (Second) ¹. We shall examine whether the plaintiff's amended complaint states a cause of action under the exception to the general rule. We shall assume for the purposes of this appeal and the motion to dismiss that the facts, as plead, are admitted. Thus plead, can count III stand?

The plaintiff relies most heavily upon the case of Ellis v. D'Angelo, 116 Cal.App.2d 310, 253 P.2d 675. In that case, the defendant parents hired the plaintiff babysitter. It was the first time that the plaintiff had been hired to babysit their four year old child who habitually engaged in violently attacking and throwing himself against people, knocking them down. The defendants were aware of this conduct and...