Kay v. Ludwick
| Decision Date | 13 October 1967 |
| Docket Number | Gen. No. 10886 |
| Citation | 87 Ill.App.2d 114,230 N.E.2d 494 |
| Parties | Wanda Lee KAY, by her Next Friend Marian Kennedy, Plaintiff- Appellant, v. Sarah J. LUDWICK, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Hanley, Phillips & Traub, Fairbury, for appellant.
Adsit, Thompson, Strock & Strong, Pontiac, Faraday, J. Strock, Pontiac, of counsel, for appellee.
The trial court allowed the defendant's motion to dismiss the complaint for failure to state a cause of action and entered a judgment in bar of the suit. Plaintiff appeals.
The four-year-old plaintiff, along with her mother, were guests at the residence of the defendant. While there, a riding-type rotary power mower was engaged in mowing the lawn. It is alleged in the complaint that because of its bright color and mobility, the mower was alluring and attractive to small children who would be tempted and induced to play on it, and that the defendant knew or should have known that this mower was a dangerous and potentially harmful machine when operated in the presence of small children; that while attempting to climb upon the rear of the machine while it was in motion, the plaintiff came into contact with the rotary blade and her entire left heel was severed causing permanent injury, pain and suffering, medical expense, etc. It is further alleged that the defendant was negligent in (a) permitting the machine to be operated which the invited minor child was on the premises, (b) in failing to warn the minor child of the danger, (c) failed to have proper safeguards to protect the child from injury, (d) failed to stop the operation of the mower while the child was on the premises, (e) allowed the child to play in the front yard without adequate supervision, and (f) failed to refrain from carrying on an activity which the defendant knew or should have known would be dangerous to the child.
The parties are properly in accord on the proposition that it is the duty of the host to keep his premises reasonably safe for his invited minor guests. In Kahn v. James Burton Company, 5 Ill.2d 614, 126 N.E.2d 836, our Supreme Court there stated that the customary rules of ordinary negligence control the duties of a landowner to an infant invited onto his land. We take the facts alleged as true. The sole issue in this case is whether those facts establish a duty of the defendant to the plaintiff which was breached to the plaintiff's damage. 'This is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court.' Prosser, Torts § 36, 3 (3d ed 1964). Whether or not there was a likelihood of injury to a four-year-old child playing in a yard in which a riding rotary mower was being operated was reasonably foreseeable does not answer our problem. As stated in Lance v. Senior, 36 Ill.2d 516, 518, 224 N.E.2d 231, 233, more is required. Prosser, Torts § 53, p. 331 (3d ed 1964).
Neither counsel has cited nor has our own research disclosed any precedent establishing a standard of conduct under the specific facts which we examine. Each case necessarily rests on its own set of facts. Man's ingenuity in inventing mechanical devices which in their operation may cause injury to his fellow man seems unlimited. This fact together with constant changing social conditions lead constantly to judicial recognition of new duties and new standards of conduct. Courts are thus not placed in solitary confinement with the duties of yesterday, but are free to recognize new duties and standards of conduct where the factual realities require that they do or should exist.
In the instant case, we are thus confronted with undisputed questions of fact and the clear obligation to declare the existence or non-existence of a duty on the part of this defendant to this plaintiff. We have a four-year-old child who was under the apparent, if not the actual care, custody, control and management of her mother. It seems clear that this mother observed no apparent harm in permitting her child to play in the...
To continue reading
Request your trial
-
Workman v. Dinkins
... ... Ludwick, 87 Ill.App.2d 114, 230 N.E.2d 494 (1967) (homeowner riding a lawnmower owed no duty to four-year-old injured while attempting to climb the mower because the operation of the mower was either fully known to the parent or patently obvious to the parent, and it seemed clear that the mother observed ... ...
-
Trotter by Trotter v. Chicago Housing Authority
...be held responsible for injuries only if they are at fault under some recognized theory of liability." See also Kay v. Ludwick (1967), 87 Ill.App.2d 114, 119, 230 N.E.2d 494. Further, there is nothing in the record to indicate what will be the relative expense or inconvenience in remedying ......
-
Washington v. Atlantic Richfield Co.
... ... [5 Ill.Dec. 149] likewise arose exceptions. Where the occupier was guilty of active negligence, his duty became that of ordinary care. (See Moore v. Ohio Oil Co. (1926), 241 Ill.App. 388, 391, and Ryan v. Chicago & Northwestern Ry. Co. (1942), 315 Ill.App. 65, 77, 42 N.E.2d 128; Kay v. Ludwick (1967), 87 Ill.App.2d 114, 230 N.E.2d 494.) So also is there the duty to disclose and warn licensees against hidden dangers of which the land occupier has knowledge. (Seipp v. Chicago Transit Authority (1973), 12 Ill.App.3d 852, 299 N.E.2d 330.) Such a failure to disclose may constitute wilful ... ...
-
Mittelman v. Witous
...factual realities of this case require recognition of the duty in defendant Ferrini asserted by plaintiff. (See Kay v. Ludwick (1967), 87 Ill.App.2d 114, 118, 230 N.E.2d 494.) Rather, we believe that Ferrini sufficiently fulfilled any duty he may have owed plaintiff to prevent further harm ......