Feldscher v. E & B, Inc.

• Decision Date: 25 March 1983
• Docket Number: No. 56384,56384
• Citation: 69 Ill.Dec. 644,95 Ill.2d 360,447 N.E.2d 1331
• Parties: , 69 Ill.Dec. 644 Robert Lee FELDSCHER, A Minor, Appellant, v. E & B, INC., Appellee.
• Court: Illinois Supreme Court

Page 1331

447 N.E.2d 1331

95 Ill.2d 360, 69 Ill.Dec. 644

Robert Lee FELDSCHER, A Minor, Appellant, v. E & B, INC., Appellee.

No. 56384.

Supreme Court of Illinois.

March 25, 1983.

Robert A. Chapski, Ltd., Elgin, for appellant; Jonathan L. Carbary, Elgin, of counsel.

McKenna, Storer, Rowe, White & Farrug, Wheaton, for appellee; Jay H. Tressler, Michael F. Dahlen, Wheaton, of counsel.

WARD, Justice:

This appeal is from a summary judgment in an action for personal injuries. Robert Lee Feldscher (hereafter Bobby) brought the action by his father and next friend, Robert F. Feldscher, against the defendant, E & B, Inc. doing business as Maaco Auto Painting & Body Works (Maaco). The suit was brought for burns received by Bobby while playing with friends on Maaco's property. The circuit court of Kane County entered summary judgment for Maaco, and the appellate court affirmed in a Rule 23 order (73 Ill.2d R. 23). (102 Ill.App.3d 1201, 61 Ill.Dec. 606, 434 N.E.2d 1203) We granted the Feldschers' petition for leave to appeal under Rule 315 (73 Ill.2d R. 315).

The Feldschers' complaint alleged that Maaco owned and operated an auto-painting and body shop in a section of Elgin where many young children lived. According to the complaint, on August 6, 1978, and for a long time prior thereto, the defendant "operated" an unfenced "open area," "as a place upon which to deposit and discard various kinds of open drums and cans of volatile liquids, thinners, gasoline type liquids, and other conbustibles [sic ], all of which were used by defendant." One of the drums, a 55-gallon drum, the complaint stated, contained a paint thinner, "Toluol." This drum had a pump that was "unsecured and unguarded" and, like all the drums and cans of volatile liquid on the premises, was "freely accessible to anyone." The Toluol was flammable and had characteristics similar to gasoline.

The complaint alleged that the materials were attractive to the children in the neighborhood; that on August 6, 1978, and for a long time prior to that date, many children played in the open area and around the drums; that the defendant knew, or by the exercise of reasonable care could have known, that the materials "were dangerous and naturally attractive and enticing to children of tender years, and that said children would be, and were, attracted and enticed to handle, investigate and play with, in, on, about and around the same, and that the materials were easily accessible and seen by children." It was the defendant's duty, therefore, the complaint set out, to use care in the storage and operation of the materials so the children would not be injured. The defendant, however, allegedly breached the duty by not fencing off the area and by permitting the materials "to be and remain in an open and exposed condition." Keeping the materials in such a manner violated, it was claimed, section 1 of "An Act to regulate the storage, transportation, sale and use of gasoline and volatile oils" (Ill.Rev.Stat.1977, ch. 127 1/2, par. 153), which makes it a petty offense for any person to store gasoline or similar volatile combustibles "in such manner or under such circumstances as will jeopardize life or property." Also, the complaint alleged that the storage was contrary to the fire-prevention code of the city of Elgin.

The complaint stated that Bobby Feldscher was seven years old on August 6, 1978, and was exercising due care for his safety commensurate with his age and intelligence. On that date, he and several other children who lived in the area went upon Maaco's property. They were accustomed to playing "on, in, around and upon it," and were "attracted, enticed and invited" to it. At that time, one of the drums of combustible liquid was ignited, causing Bobby severe injuries. The complaint sought damages of $1 million.

Maaco moved for summary judgment and filed discovery depositions of Bobby and his parents. According to the depositions, on August 6, 1978, Bobby was visiting his father, who lived next door to Maaco's body shop. Robert Feldscher's house was to the rear of Maaco's garage and adjacent to Maaco's parking lot. Bobby's parents were divorced and Bobby lived with his mother. To the best of his father's knowledge, Bobby was the only child living within a block of Maaco.

August 6 was a Sunday and Maaco was closed. Bobby was playing with his friends Douglas, Tony and Terry, who were older children. Bobby had gone to Douglas' house that morning. The boys were playing hide-and-seek when Douglas got the idea of starting a fire. Douglas, who was 10 years old but called "Baby," took a sprinkling can from the garage of a woman who lived next door to Maaco's shop and got some matches from a nearby liquor store. Bobby, in his deposition, stated that he watched Douglas take those items, but that he did not know what Douglas was going to do with them.

The boys proceeded to Maaco's property. There Douglas pumped what he said was gasoline from a large drum. Douglas filled the sprinkling can and another can with the "gas" and poured it into some beer and soft drink cans. He taped six beer and pop cans together and touched a match to them.

The cans were supposed to explode; however, a fire started. Some paper was burning on the ground and Douglas threw the six burning cans into a garbage dumpster and tossed paper into the dumpster. Bobby said at the time of his deposition that Douglas "put too much [gasoline into the cans]. You are supposed to dunk it in and dunk it out fast. So, that's how it caught on fire * * *." Tony and Terry took paper from the dumpster and threw it on the fire. Douglas splashed some of the paint thinner onto Bobby's pants and pushed Bobby into the burning gasoline on the ground. Bobby suffered burns on the legs. That was the first time that Bobby or any of the boys had played at making firebombs. Bobby had never seen it done before, and Douglas learned, Bobby said, about making the firebombs from an older brother.

Bobby returned to his father's house from Maaco with his shoes and pant legs burning. Both of Bobby's parents had told him not to play at Maaco and to their knowledge he never had before the day of the fire. When Bobby's friends came to visit, they played in the back yard, not at Maaco. August 6, 1978, was the first time that there had been a fire at Maaco.

Opposing the motion for summary judgment, the plaintiffs submitted an affidavit of George Van DeVoorde, the chief of the Elgin fire department. In it he said that he had found on the defendant's premises at the time of the fire "four 55 gallon drums full of waste liquid that looked and smelled like old paint and reducer with no caps on them, one 55 gallon drum of Toluol with a red flammable sticker with a pump in it * * *, a sprinkling can about half full of some kind of thinner and two dumpsters of trash and cans." The chief said that both Toluol and gasoline are highly flammable, and that the Elgin fire-prevention code requires that an outside storage area for flammable liquids must be protected against tampering or trespass.

The plaintiffs also submitted an unsworn statement which had been given to an insurance company by Michael Arians, Maaco's general manager. In it, Arians said that he examined the premises after the fire. Behind the shop there were some 55-gallon drums belonging to Maaco. Some were empty, some had water, and one had a little thinner left on the bottom. A short distance from those drums were two charred smaller cans, a gasoline can and a sprinkling can, neither of which belonged to Maaco and neither of which had been there before the day of the fire, he said. Also, a garbage dumpster that belonged to the disposal company that picked up Maaco's refuse appeared to have been burned.

Arians believed that the drum with the paint thinner probably had been in the rear area for a few days, and had been placed there by the body-repair men and painters when it was nearly empty. On the day of the fire no employees were at the shop. Maaco's refuse pickup days were Monday, Wednesday and Friday.

Arians had never seen children in the area where the fire took place, although he had chased children from a lot beside Maaco. He had seen Bobby in the showroom and repair areas several times, and he had told Bobby to leave.

Maaco objected to the admission of the fire chief's affidavit and the unsworn statement of Arians, but did not obtain a ruling on the question from the trial court. Under the circumstances, the objection was waived. (See Department of Public Works & Buildings v. Anastoplo (1958), 14 Ill.2d 216, 222, 151 N.E.2d 337.) The trial court stated at the time it entered judgment that it had considered all of the evidence and pleadings before it.

We consider that the court properly entered summary judgment for Maaco. Under section 57 of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 57), a defendant may move for summary judgment at any time. Judgment will be entered "if the pleadings, depositions, 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." Our Rule 212 (73 Ill.2d R. 212) provides that a discovery deposition may be used for any purpose for which an affidavit may be used.

In Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 126 N.E.2d 836, this court considered a landowner's legal duty toward trespassing children. In Kahn, where a boy of 11 years was injured when a construction lumber pile upon which he was playing toppled, this court 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. [Citations.] It is also established that infants, as a general rule,...