Fishel v. Givens

• Decision Date: 14 April 1977
• Docket Number: No. 13568,13568
• Citation: 47 Ill.App.3d 512,5 Ill.Dec. 784,362 N.E.2d 97
• Parties: , 5 Ill.Dec. 784 Michael Eugene FISHEL, a minor, by his father and next friend, Charles A. Fishel, Plaintiff-Appellant, v. K. T. GIVENS, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 97

362 N.E.2d 97

47 Ill.App.3d 512, 5 Ill.Dec. 784

Michael Eugene FISHEL, a minor, by his father and next

friend, Charles A. Fishel, Plaintiff-Appellant, v. K. T. GIVENS, Defendant-Appellee.

No. 13568.

Appellate Court of Illinois, Fourth District.

April 14, 1977.

Knuppel, Grosboll, Becker & Tice, Petersburg, for plaintiff-appellant; Eldon H. Becker, Petersburg, of counsel.

Rammelkamp, Bradney, Hall & Dahman, Jacksonville, for defendant-appellee; Robert E. Bradney, Jacksonville, of counsel.

ALLOY, Justice.

Michael Eugene Fishel, a minor, by his father and next friend, Charles A. Fishel, appeals from an order entering summary judgment in favor of K. T. Givens and against plaintiff, in a personal injury suit.

The action brought by plaintiff was based on the theory of negligence of defendant, and sought recovery for personal injury sustained by plaintiff when an automobile driven by defendant and a mini-bike ridden by plaintiff collided. The trial court granted summary judgment in favor of defendant K. T. Givens on the grounds that at the time of the accident, as a matter of law, defendant was not negligent and plaintiff was contributorily negligent. On appeal in this court, plaintiff contends that the entry of summary judgment was improper on the grounds (1) that the trial court in determining the contributory negligence of plaintiff, applied an erroneous standard of due care, and (2) that the trial court erred in granting summary judgment in favor of defendant generally.

On June 25, 1972 (the date of the incident involved in the case), plaintiff Michael Eugene Fishel was 14 years of age and owned an 80 cc. Gimini mini-bike. Plaintiff, who had owned two other mini-bikes, had experience riding mini-bikes since he was 12 years old. Some time after 6:00 P.M. on June 25, 1972, at a time when it was still light, plaintiff, David Booth and two other boys decided to ride their mini-bikes on property owned by Art Jones in Beardstown, Illinois. It appeared that Jones was a local trucker, who had given the boys permission to ride their mini-bikes on his property, and that the boys had ridden their bikes there on a regular basis. The Jones' property was 'L'-shaped, and was bordered on the south by Garden Avenue, an east-west road. A private, unpaved road proceeded north from Garden Avenue, and took a 90 turn to the west and then proceeded behind the Jones' house. The corner was blind, since it was bordered on the west by a four to five foot hedge and on the east by sand piles. The roadway at the point of the corner was variously described as wide enough for two dump trucks to pass through, a narrow squeeze for two cars, and 25 feet wide at the most. Plaintiff and defendant were familiar with the Jones property and knew that the lot was not a public thoroughfare but was used by Jones' trucks.

On the date noted, at about 6:30 P.M., while plaintiff and Booth were riding their mini-bikes on the Jones property, defendant turned his automobile north off of Garden Avenue onto the Jones property. Defendant and Milton LeMaster, who was riding with defendant, were on their way to visit A. C. Jones, at the Jones residence. As defendant operated his automobile at a speed of 8 to 15 miles per hour in a northerly direction toward the blind curve, Booth and plaintiff, who was following Booth, were proceeding east on the private road, approaching the blind curve from the opposite direction as defendant. As plaintiff approached the curve, he rode his mini-bike on his left, or northern, side of the road at a speed of 10 to 15 miles per hour, about 10 feet behind Booth. As Booth turned the corner, he saw defendant's car and turned around to warn plaintiff. Booth was apparently on the right side of the road since defendant's car passed three or four feet to his left while Booth had three or four feet of road to his right. Plaintiff never saw the car or Booth's warning and struck the right front bumper of defendant's automobile. He was hurled to the edge of the road near the sand pile. Defendant had slowed down when he saw Booth, and was braking his car when the collision occurred. Although the car windows were down, defendant did not hear the mini-bikes prior to seeing Booth.

Plaintiff's action was instituted on July 8, 1974, by plaintiff's father and next friend. The complaint in the case alleged, in Count I, negligence on the part of defendant, and, in Count II, willful and wanton misconduct on the part of defendant, as bases for recovery. The negligence count of the complaint alleged that at the time of the collision, plaintiff was 'in the exercise of due care and caution of a person 14 years of age would use under circumstances similar to those involved in this suit.' On July 29, 1974, defendant filed a motion to dismiss Count I of the complaint on the ground that Count I was legally insufficient because plaintiff, in operating a motor vehicle, was held to the same standard of care as an adult. By court order entered on September 19, 1974, the complaint was amended as to Count I, on motion of plaintiff, to allege that plaintiff, at the time of the accident, was in the exercise of due care and caution, and defendant's motion to dismiss Count I was withdrawn. On June 26, 1975, defendant filed a motion for summary judgment, supported by the discovery depositions of plaintiff, plaintiff's father, David Booth, and defendant, and by the evidence deposition of Milton LeMaster. In a court order dated September 11, 1975, the trial court allowed defendant's motion for summary judgment, and stated:

'All of the depositions, discovery and evidentiary, have been read by me in toto and clearly reflect that the Plaintiff was contributorily negligent as a matter of law and that the Defendant by the same yardstick was not negligent. There being no genuine issue as to any material fact, the motion for summary judgment is ALLOWED and judgment is hereby entered in favor of the Defendant and against the Plaintiffs.'

The trial court also ruled that, as a matter of law, a minor operating a mini-bike on private property, such as here involved, is held to the standard of care required of an adult.

Plaintiff first argues, however, that the trial court erred in granting summary judgment, inasmuch as this was not a proper case for summary judgment, since, plaintiff contends, that there existed genuine issues of material fact. In this State, the Illinois Supreme Court has expressed the test for the propriety of summary judgment in The Farmer's Automobile Insurance Association v. Hamilton (1976), 64 Ill.2d 138, at 141--142, 355 N.E.2d 1, at 2:

'In Econo Lease, Inc. v. Noffsinger, 63 Ill.2d 390, 393, 349 N.E.2d 1, 2, we said: 'A motion for summary judgment will be granted if the pleadings, depositions, admissions and affidavits on file reveal that there is no genuine issue as to any material fact and that the movant is entitled to a judgment or decree as a matter of law. (Ill.Rev.Stat. 1975, ch. 110, par. 57(3); Carruthers v. B. C. Christopher & Co., 57 Ill.2d 376, 313 N.E.2d 457.) A reviewing court must reverse an order granting summary judgment if it is determined that a material question of fact does exist.''

It is also noted, as stated in Peltz v. Chicago Transit Authority (1st Dist. 1975), 31 Ill.App.3d 948, 951, 335 N.E.2d 74, 77, that:

'Merely alleging that a genuine issue of material fact exists without presenting any statement of fact to contradict the defendants' version, does not thereby create such an issue. * * *

'If there are no facts in dispute, inferences may be drawn from the undisputed facts to determine if the defendant is entitled to judgment as a matter of law. If no fair-minded person could draw different inferences from these facts, then there is no triable issue and the motion for summary judgment should be granted. (Southland Corp. v. Village of Hoffman Estates (1970), 130 Ill.App.2d 311, 264 N.E.2d 451.) This does not prejudice the party against whom judgment is granted since the same undisputed facts would support entry of a judgment at the conclusion of that party's case.'

We note that in the instant case, plaintiff has not demonstrated any conflict of explicit fact, and, in opposing the entry of summary judgment, apparently relies upon the existence of conflicting inferences which could be drawn from the undisputed material facts.

Plaintiff contends that the trial court erred, when determining that plaintiff was contributorily negligent as a matter of law, in measuring plaintiff's conduct by an adult standard of care, rather than by the standard of care of a child of like age, intelligence and experience. The initial complaint was based upon the child's standard of care, but when plaintiff was faced with defendant's motion to dismiss, plaintiff amended his complaint to allege the adult standard of care. As noted in the case of People ex rel. Valentine v. Briggs (1st Dist. 1941), 312 Ill.App. 199, 207, 38 N.E.2d 366, 369:

"As a general rule, if a party, after an order or judgment upon demurrer to the pleadings is given against him, under leave of court, amends the pleading demurred to, * * * he acquiesces in the judgment or order upon the demurrer, and will not be permitted to appeal therefrom, or, unless an exception is duly saved, to assign it for error in the appellate court * * *."

We also note that it has often been stated in the courts of this State that a party cannot try a case on one theory in the trial court and adopt a different theory in a court of review. As a corollary to this rule, a party cannot allege on appeal, error arising from a theory acquiesced in by that party in the trial court. He must adhere to the theory or position accepted by him in the trial or proceedings in the lower court. Since plaintiff, in his amended complaint, acquiesced in the theory that he was to be held to an adult standard of care, the argument that plaintiff need only be in the exercise of the standard of care of...