Cummings v. Jackson

• Decision Date: 07 February 1978
• Docket Number: No. 14584,14584
• Citation: 14 Ill.Dec. 848,57 Ill.App.3d 68,372 N.E.2d 1127
• Parties: , 14 Ill.Dec. 848 Laura CUMMINGS, a minor, by Peoples Bank of Bloomington, Guardian of the Estate of Laura Cummings, Plaintiff-Appellant, v. Mark A. JACKSON, an Individual, Defendant, and City of Bloomington, Illinois, a Municipal Corporation, and Ladonna Cummings, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1127

372 N.E.2d 1127

57 Ill.App.3d 68, 14 Ill.Dec. 848

Laura CUMMINGS, a minor, by Peoples Bank of Bloomington Guardian of the Estate of Laura Cummings Plaintiff-Appellant, v. Mark A. JACKSON, an Individual, Defendant and City of Bloomington, Illinois, a Municipal Corporation, and Ladonna Cummings, Defendants-Appellees.

No. 14584.

Appellate Court of Illinois, Fourth District.

Feb. 7, 1978.

Robert L. Silberstein, Peoria, for plaintiff-appellant.

Bane, Allison & Saint, P.C., Bloomington, for defendants-appellees; Costigan & Wollrab, Bloomington, Robert W. Neirynck, Bloomington, of counsel.

GREEN, Presiding Justice.

This case involves a suit brought on behalf of a minor child to recover for personal injuries received on June 21, 1974, when she was hit by an automobile in a street in front of her mother's house in the city of Bloomington. At issue is an interpretation of the doctrine of parental immunity and an analysis of the rules determining the degree of care owed by the owners and occupiers of land to children who come onto the land.

The complaint filed in the circuit court of McLean County on behalf of plaintiff Laura Cummings was brought by the guardian of her estate, Peoples Bank of Bloomington. The complaint eventually contained 6 counts. Prior to trial count V, directed against plaintiff's mother, Ladonna Cummings, and count VI, directed against defendant City of Bloomington, were dismissed upon motions of those defendants. The other counts were submitted to the jury, resulting in verdicts and subsequent judgments for defendants to those counts. The only questions before us on appeal concern the propriety of the dismissal of counts V and VI.

Count V charged that defendant Ladonna Cummings negligently and in violation of city ordinance failed to trim trees in the grass parking between the edge of the street and her nearest property line. This failure was alleged to have obstructed the view of the driver of the automobile that hit plaintiff and to have been a proximate cause of her injuries. Defendant mother's motion to dismiss this count involved the doctrine of "parental immunity" claiming that no suit by a child against a parent for injuries incurred in the manner alleged was permissible.

In full force, the doctrine of "parental immunity" would, as its name implies, prohibit suits by children against their parents. No supreme court case has directly ruled upon the question of whether tort actions for negligence between children and parents may be maintained. In Nudd v. Matsoukas (1956), 7 Ill.2d 608, 131 N.E.2d 525, that court ruled that suits for willful and wanton misconduct were not prohibited but stated that the doctrine did prevent suits for ordinary negligence. The court said that the purpose of the rule was to preserve family unity and reasoned that suits for negligence would have a tendency to disrupt family unity but that if willful and wanton conduct was involved the family unity would already be disrupted. The court deemed the prevention of suit under the latter circumstances to be grossly unfair. Dictum in Mroczynski v. McGrath (1966), 34 Ill.2d 451, 216 N.E.2d 137, approved the Nudd analysis.

In Schenk v. Schenk (1968), 100 Ill.App.2d 199, 241 N.E.2d 12, a negligence suit brought by a father against a daughter for running into him with a car while he was a pedestrian in a street, this court further limited the immunity to situations where the duty breached arose out of the family relationship. Recovery was permitted. The rationale was that a suit charging a breach of a duty owed the general public is not as disruptive to a family unity as one charging breach of a duty owed primarily to family members and thus bringing into contention the inner workings of the family. Schenk acknowledged the logic of observing the doctrine of immunity when the injury arises out of the family relationship. In Cosmopolitan National Bank v. Heap (1970), 128 Ill.App.2d 165, 262 N.E.2d 826, immunity was upheld in a case where the complaint alleged that a child was injured because of the failure of a parent to maintain a stairway in the family's home. The court considered the injury to have arisen out of the family relationship and stated its approval of the Schenk analysis that would uphold immunity of a parent under those circumstances.

In the instant case the duty alleged to have been breached by the mother concerned the maintenance of trees on the area immediately adjacent to the home. The duty was owed primarily to the general public, however, and only incidentally to the members of the family living in the house. Although the question is a close one, we consider the situation to be more analogous to Schenk than to Heap and conclude that the injury to plaintiff was not alleged to arise out of the family relationship. We rule the dismissal of count V to be error.

Defendant City of Bloomington was charged not only in count VI which was dismissed but in count II which was submitted to the jury. That count charged the city with negligently maintaining a traffic hazard by placing trees along the parking and failing to inspect them to see if they were a hazard, placing a tree closer to the parking than permitted by ordinance or allowing the tree to remain there, placing or permitting a tree to remain so close to the street that when shoots and sprouts grew at the base, the view of pedestrians by motorists was obstructed, allowing a tree to become overgrown and untrimmed and failing to warn motorists that children were playing in the area. Count VI was based upon the decision in Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 126 N.E.2d 836. Plaintiff maintains that it sets forth a different theory of recovery than count II. Defendant City maintains that it was duplication to count II and properly dismissed.

In Kahn suit was brought on behalf of a child injured while playing as a trespasser on lumber piled in a dangerous manner by a supplier upon land occupied by a building contractor. In ruling that recovery might be allowed against the supplier and contractor, the court rejected the use of the label "attractive nuisance" in analyzing the duty of the two defendants to the trespassing child. Rather, the court stated that the proper basis lay in "the customary rules of ordinary negligence cases." (5 Ill.2d 614 at 624, 126 N.E.2d 836 at 841.) The court noted that ordinarily the owner or occupier of land owed no duty of ordinary care to persons coming on their land without invitation but recognized that the rule was not without exception. The heart of the opinion is contained in the...