Henry v. Robert Kettell Const. Corp.

• Decision Date: 24 April 1967
• Docket Number: Gen. No. 66-55
• Citation: 82 Ill.App.2d 420,226 N.E.2d 89
• Parties: Hugh HENRY, Administrator of the Estate of Laureace L. Henry, Deceased, Appellant, v. ROBERT KETTELL CONSTRUCTION CORPORATION, a Corporation, and Donald F. Stearn, Appellees.
• Court: United States Appellate Court of Illinois

Page 89

226 N.E.2d 89

82 Ill.App.2d 420

Hugh HENRY, Administrator of the Estate of Laureace L Henry, Deceased, Appellant, v. ROBERT KETTELL CONSTRUCTION CORPORATION, a Corporation, and Donald F. Stearn, Appellees.

Gen. No. 66-55.

Appellate Court of Illinois, Second District.

April 24, 1967.

Corrigan & Mackay, Wheaton, for appellant.

Popejoy, Bowman, Unverzagt & Nelson, Wheaton, for appellees.

BURT, Justice.

Plaintiff administrator brought this suit against Robert Kettell Construction Corporation and Donald Stearn, its employee, for wrongful death due to the alleged negligence of the defendants, causing the death of a three year old child, Laureace Henry, on September 18, 1961, when she was crushed to death by a truck of the defendant's corporation, driven by the defendant Donald Stearn. She had been playing on an unfenced premises improved with a newly constructed house and used by the defendant corporation as a storage warehouse and contractor's equipment yard. The complaint is based solely on the theory of 'attractive nuisance' and it is necessary to describe the premises and surrounding circumstances in more than usual detail for an understanding of this case.

The deceased had always lived with her parents in suburban areas much like the area of her home. Robert Kettell, the owner of the Robert Kettell Construction Corporation, testified that about a dozen children under the age of ten lived within a block of the premises and that possibly forty children lived within a two block area of the premises. He said it was an area where there were young married couples with children.

The house was located on the southeast corner of Arboretum Road and Hackberry Lane in a residential area of DuPage County. The premises consisted of three lots facing north towards Hackberry Lane; the corner or westerly lot was vacant; the middle lot had a residence on it which, between the time of its erection on April 1, 1961, and the date of the accident on September 18, 1961, was used as a storage warehouse.

A dirt driveway led northeasterly from the front door of the house to Hackberry Lane. Ruts caused by the tires of vehicles driven to and from the front door were three to four inches deep and Robert Kettell described the driveway as 'fairly heavily rutted'. The carport on the east side of the house was used to house contractor's equipment being repaired or maintained. There was a dirt pile in about the center of the lot probably twenty feet long, ten feet wide and seven to eight feet high covered with weeds and it was possible to back a truck between the front door of the house and the dirt pile. There was also a dirt pile in the rear yard with a diameter of twenty feet and a height of a little over four feet. There were weeds on the premises including the dirt piles. This was all shown in photographs in evidence.

The next or most easterly lot was used for the storage of contractor's equipment by the corporate defendant and by Earth Movers Inc., a corporation owned by Kettell. Most of its surface was covered with gravel so that the heavy equipment would not sink into the ground; there was a semi-trailer, possibly thirty feet long and twelve feet high, parked on the eastern portion; and at the northern end there was a water faucet projecting about two feet out of the ground which Robert Kettell said was probably installed in 1960. Children would stop and drink there and play with the water; due south of the water faucet there were two round portable tanks, five feet long and three feet in diameter, of two hundred fifty gallon capacity, standing off the ground on six or seven foot tripod legs; one was used for the storage of gasoline and one for oil; from time to time during the day there were automobiles parked there by the heavy equipment operators.

On September 18, 1961, a sunny autumn day, the minor decedent had played with her brother Dana age 5 and Keith Berland age 4 at the eastern end of the Henry premises from 2:30 p.m. until shortly after 4:00 p.m. At that time the decedent's mother decided to take Scott, her one year old son, for a walk but the three were not interested in going with her.

The mother was not going to a prearranged place but thought that if Mrs. Berland, an adjacent neighbor, were outside or not busy she would visit her. The Berland home was south of the Henry home, separated from it by three vacant lots. They walked to the Berland home and Mrs. Henry was standing in the kitchen when she learned of the fatal injuries sustained by the minor decedent.

The mother went directly to the house in question and found the minor decedent lying face down in the rutted driveway in front of the house.

She was not moving or making any sound and there was considerable blood around her head. The mother called her name several times but there was no answer; she checked her breathing but found none. A neighbor took them to a doctor, who pronounced the child dead.

The defendant, Donald F. Stearn, testified that he was employed by the corporate defendant as a working foreman on September 18, 1961. He had worked on the construction of the house. On 'many' occasions he saw children on the premises, but never more than ten at a time. When he saw them he would 'shag' them off the property as many times as necessary. Neither Mr. Kettell nor any superior of Stearn's ever gave any specific instruction what to do with children found on the premises. Robert Kettell, the owner of the defendant Corporation, testified that no instructions were ever given to fence or barricade the premises in question.

On the day in question Stearn drove to the warehouse in a red three-quarter ton Ford pickup truck owned by the corporation. When Stearn was seated behind the driver's wheel, he did not know how high his head was from the ground. He was six feet seven and one-half inches tall. The hood extended about five feet in front of him and was about four or five feet above the ground; there was an area in front and to the right of the right front fender where he couldn't see the ground, but he had no idea of the size of the blind spot.

He entered the warehouse premises from Hackberry Lane and made a left turn to the east, so that he could back the truck to the front of the house. Then he observed two boys with bicycles to the south of the truck and two younger boys playing around the dirt pile at the front of the house.

He backed the truck within three to five feet of the front door, removed a sump pump from the truck and placed it in the house. He believed that the two older boys rode away during this time. When he came out of the warehouse the two younger boys were in the same area and he told them to stay away.

Stearn got into the truck by walking along the left side and getting in the driver's side. He admitted that he did not look around the area of the truck to see if the other children were in its immediate vicinity. Before driving off he did not look to the right or towards the carport because, 'I did not feel there was any necessity to'. He drove home and learned later that the minor decedent had been killed.

Keith Berland, the neighbor boy with whom the minor decedent had been playing, testified that only Laureace Henry, Dana Henry, and he were playing on the premises and that there were no older boys present. Keith asked Stearn what he came for and he said for supplies; Stearn did not tell them to get off the dirt pile; 'all the men used to let us play there'.

When Stearn was ready to climb in he said to the boys, 'Go away from the truck while I pull out now'. At that time Laureace was standing at the other side of the driveway about three or four feet away from the side of the truck. Dana Henry called Laureace over and the truck pulled out when she started to run. She got about three feet when the truck started to pull out. The truck came out a little faster and then she was hit by the front wheel and the back wheel missed her.

George Anonich testified that he was a general contractor engaged for thirteen years in residential and commercial construction. As a result of his inspection of the house and yard on October 12, 1965, he concluded that a snow fence would suffice to prevent a three year old child from coming on the premises in question.

He said it was the same type of fence seen along highways with slats an inch and a half to two inches wide and four or four and a half feet high interwoven with wire to keep the slats together. They would be affixed to steel posts about every ten feet and would be reusable or salvageable after use at a given location.

He was familiar with the usual and customary charges in DuPage County on September 18, 1961, for the erection of fencing of this type and estimated that it would cost approximately $290.00 to erect the fence around the corner lot and the lot on which the house stood, or $255.00 to fence one and a half lots.

He had occasion to erect fences around ten or fifteen residences where he did not enclose the entire premises.

He was familiar with the general custom and practice of house builders in DuPage County. He said he did not put up a fence every time he built a home, just in situations where it was required.

In the Circuit Court, the third amended complaint was stricken for failure to state a cause of action, but this Court reversed, in the case of Henry v. Kettell Const. Corp., 44 Ill.App.2d 356, at page 360, 194 N.E.2d 535, at page 538, (1963), holding that the complaint, containing substantially the same allegations as are set forth above, did state a cause of action, and further held, that 'Whether or not the partially erected residence with the construction equipment thereon, the pile of top soil in the rear and front of the residence, the construction equipment on the premises or the water faucet located thereon were sufficiently attractive to allure and attract children onto the premises to play and whether or not the defendants knew or...