Hendricks v. Peabody Coal Co.

• Citation: 253 N.E.2d 56,115 Ill.App.2d 35
• Decision Date: 22 September 1969
• Docket Number: Gen. No. 52964
• Parties: Earl Edward HENDRICKS, a Minor, by Charles R. Hendricks, his Father and Next Friend, Plaintiff-Appellee, v. PEABODY COAL COMPANY, a Corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 56

253 N.E.2d 56

115 Ill.App.2d 35

Earl Edward HENDRICKS, a Minor, by Charles R. Hendricks, his Father and Next Friend, Plaintiff-Appellee, v. PEABODY COAL COMPANY, a Corporation, Defendant-Appellant.

Gen. No. 52964.

Appellate Court of Illinois, First District.

Sept. 22, 1969.

Rehearing Denied Oct. 24, 1969.

Howard & French, Chicago, Richard G. French, Chicago, of counsel, for defendant-appellant.

James A. Dooley, Chicago, for plaintiff-appellee.

ALLOY, Justice.

This is an appeal from a judgment of the Circuit Court of Cook County based upon a jury verdict against defendant, Peabody Coal Company, assessing damages to plaintiff in the sum of $200,000. The jury had also answered a special interrogatory finding that Earl Edward Hendricks, plaintiff, was not guilty of negligence which proximately contributed to his injuries. As the case comes before us, the question of contributory negligence is not involved in this appeal. The only issue presented is whether plaintiff made out a case sufficient to raise a jury question, or alternatively stated, whether defendant should have foreseen harm to children such as plaintiff from the nature and use being made of defendant's premises.

The record discloses that on June 19, 1960, plaintiff, who was then 16 years and 5 1/2 months of age, was injured when he dove into a strip mine area that was filled with water, as a result of which he apparently broke his neck when his head hit the sand bottom. As a result of such injury, plaintiff is a quadriplegic and his disability is permanent. No questions of any trial errors are raised in this cause and our sole inquiry is to detemine whether, under the facts before us, defendant owed a duty to plaintiff, and whether the determination of this cause was properly made an issue of fact for the jury.

It is noted that for some years prior to 1955, Peabody Coal Company was engaged in strip mining operations in an area near Essex, Illinois, a small community of about 75 to 100 people. The body of water which was involved was in a pit in one of the abandoned strip mines located approximately 30 miles west of the city of Kankakee. The record discloses that the water-filled quarry was known throughout the city of Kankakee and vicinity, and that many people swam there and had heard about it from other persons who swam in the location. People came from as far away as Chicago, Joliet, Kankakee, Braidwood and South Wilmington. Defendant had excavated 70 to 75 feet deep to extract all coal from the area. After the defendant has ceased its mining operations in the area in 1955, and within six months thereafter, the aperture filled with water from natural springs, rain water and snowfall which resulted in clean, clear water and made it an excellent swimming place. The water was 35 to 50 feet deep in places. By reason of the contour of the mine, as soon as one moved a couple of feet from the shore line, he was in deep water. It differed from a natural lake in that there was a sharp drop-off. The north and east sides of the water hole were sand. It was about half a mile long and 300 feet in width at its widest point. A sand shelf extended in varying widths from a foot to three feet along the water edges.

There was no indication by signs that the pit, which was being used for recreational purposes, was owned or maintained by anyone, but, rather, that it was just waste land or 'a swimming hole'. It was also used by motor boats, water skiers, fishermen, and picnickers. It had been frequented for long periods of time by teenagers, young adults and families who would bring infants. The water-filled quarry ran generally north and south. A two-lane paved road leading from Essex, Illinois, ran parallel to the quarry. The county gravel road ran in a westerly direction which passed a private club. From this gravel road there was a dirt road running southerly to the north side of the water. It was customary for motorists to drive up and park on the north side of the body of water, almost at the edge of the pit itself.

The particular day in question, June 19, 1960, was a Sunday. Four carloads with 13 teenagers left a home in Kankakee. When the young people arrived at the north end it was too crowded to swim there, so they went to the east end of the water. A few of the boys started to dive from a three to four foot bluff into the water. When plaintiff arrived at the scene, three of his companions were diving into the water from a bluff on the east side of the north end. On this day, as on previous occasions when plaintiff had been there (this was his fifth trip there), one swimmer after another made his dive, then came to the plateau shelf and climbed up it. The sand on the shelf was stirred up and visibility made it impossible to see the location of the shelf or the bottom under the water. There was evidence that the use of the water and action of swimmers would stir the sand and make it shift. The evidence indicated that plaintiff went into the water only after seeing the other boys dive at the place several times. Each of them dove from the same spot out over the same area that plaintiff did. The evidence indicated that plaintiff was as capable in diving as the other boys. Plaintiff, however, had not yet dived at the particular place on this day. He followed one of his conpanions and another was waiting to follow him. From where plaintiff dove he could not see the sand and when he dove he did not know the condition of the sand in the bottom. Plaintiff ran and dived. He did not slip prior to his dive and the next thing plaintiff could remember he was laying on the bank. Other witnesses indicated that he had struck the sand at the bottom. One of his companions found him with his head partially imbedded in the sand and, with the help of others, pulled him out of the water.

From 1955 to 1960, the only policing of the area was done by defendant's employees on a part-time basis. It was only a part-time activity, and all the employees did, when they found people there, was to take down one or two of the license numbers but nothing further was done about it. It was not until after the injury to plaintiff that defendant allowed police to come onto the premises and, thereafter, signs were also put up in the quarry. There was strong evidence that there were no signs prohibiting trespassers or warning of any danger prior to the time of the occurrence resulting in injury to plaintiff. There were also no fences or barricades of any kind anywhere nor were there any lifeguards or life preservers.

Evidence was introduced at the trial of this cause disclosing that the cost of a six-foot high steel chain-link fence with steel posts set in concrete surrounding the entire pit would have cost $12,000 to $14,000, and that this would have effectively barred persons from using the premises.

It is asserted by plaintiff in this cause that as the case is now presented to this Court, the admitted facts are that (1) defendant created the condition, having excavated a deep hole out of the earth; (2) defendant abandoned the area in 1955; (3) within six months thereafter, it was filled with water thirty-five to forty-five feet deep, water which was clear and clean which defendant knew made an excellent swimming place; (4) this body of water was different from a natural lake in that there is a sharp drop-off a couple of feet from the shore, with the water following the contour of the mine; (5) when swimmers were in the water, the sand would shift from their activity in contact with it and this changed the location of the sand; (6) for a period of years, defendant knew this place was frequented by swimmers, divers, picnickers, boaters, water skiers and fishermen; (7) defendant knew of the configuration of the pit with the shelf to the drop-off lurking just below the water surface, and that there would be large numbers of people in the place for recreation of varying ages, from adults and teenagers to infants; (8) with this knowledge, defendant undertook to police the area in an inadequate manner and not until 1961, after the accident, allowed the Essex Police Department to take over; (9) the area was not fenced, although this could have been done for a very reasonable sum; (10) defendant did not post the area so that even adults did not know it was another's property, but described it as wasteland or a swimming hole; (11) plaintiff, as good a diver as his companions, on this particular day did a running dive, as his companions had been doing, and did not fall but went into the water, where he was found; and (12) what plaintiff struck was not known, since he seemed to go out normally on the dive and was found unconscious. These assertions made by the plaintiff are in fact supported by evidence in the record although there was some dispute as to certain facts involved.

Defendant contends that plaintiff failed to show that defendant violated any duty owed to him and specifically failed to show under the precedent of Kahn v. James Burton Co., 5 Ill.2d 614, 625, 126 N.E.2d 836, that defendant owed plaintiff a duty. It is stated in this connection that the theory of 'attractive nuisance' to remove a minor from the status of a trespasser no longer appears to be the law in Illinois (Kahn v James Burton Co., supra). Both parties to this cause agree that the test is foreseeability of injury as enunciated in Kahn v. James Burton Co., supra, rather than a vaguely announced doctrine of 'attractive nuisance'. The fundamental question is whether the evidence establishes a sufficient basis upon which a jury could determine that defendant was guilty of negligence toward plaintiff.

As stated in Runions v. Liberty National Bank, 15 Ill.App.2d 538, at 540, 147 N.E.2d 380 at 381:

'Plaintiff relies upon Kahn v. James Burton Co., 5 Ill.2d 614, 126 N.E.2d 836 (1955). That case marks a departure from the traditional standards developed by the law in cases in which children are attracted...