Landman v. M. Susan & Associates, Inc.
Decision Date | 04 October 1965 |
Docket Number | Gen. No. 50417 |
Citation | 211 N.E.2d 407,63 Ill.App.2d 292 |
Court | United States Appellate Court of Illinois |
Parties | Richard LANDMAN, a minor, by his father and next friend, Leo Landman, Plaintiff-Appellant, v. M. SUSAN & ASSOCIATES, INC., a corporation, and Navanole & Ruffulo, Defendants-Appellees. |
Block & Levy, Howard I. Lidov and Alvin R. Becker, Chicago, for appellant.
Hinshaw, Culbertson, Moelmann & Hoban, Chicago, for M. Susan & Associates, Inc.; Oswell G. Treadway, Chicago, of counsel.
Treacy & Garbutt, Chicago, for Navanole & Ruffulo; William P. Treacy, Chicago, of counsel.
Plaintiff, a minor, seeks damages for an eye injury which resulted from sand thrown at him by a minor playmate while they were playing on a sand pile at a construction site. The trial court sustained motions to dismiss and entered judgment on the pleadings in favor of both defendants.
Plaintiff appeals on the theory that the complaint states a cause of action in that it alleges the defendants, both engaged in the building construction business, created and negligently maintained a hazardous condition dangerous to children of tender years, which proximately caused the personal injuries sustained by the plaintiff.
Initially, we agree with the plaintiff that as this cause was determined in the trial court on plaintiff's complaint and on defendants' motions to dismiss and for judgment on the pleadings, all of the well pleaded allegations of the complaint, together with all fair inferences to be drawn therefrom, are taken as true. A. A. Erickson Bros., Inc. v. Jenkins, 41 Ill.App.2d 180, 188, 190 N.E.2d 383 (1963).
In substance, the complaint alleges that defendants, in the course of erecting a building, caused a 'large pile of sand or soil' to be placed on the premises; that on May 18, 1963, plaintiff, then age 12, was playing with other children on the pile when one of the children 'threw sand or soil at the said Richard Landman, thereby seriously and permanently injuring him * * *.'
The negligent acts charged against defendants are that they:
Plaintiff argues that Plaintiff therefore concludes that the trial court erred in holding that the plaintiff's complaint failed to state a cause of action and in allowing defendants' motions to dismiss and for judgment on the pleadings.
The authorities cited by plaintiff, and which, we believe, provide the guidelines to be used here, are Kahn v. James Burton Co., 5 Ill.2d 614, 126 N.E.2d 836 (1955); Stewart v. DuPlessis, 42 Ill.App.2d 192, 191 n.E.2d 622 (1963); Smith v. Springman Lumber Co., 41 Ill.App.2d 403, 191 N.E.2d 256 (1963); and Halloran v. Belt Ry. Co. of Chicago, 25 Ill.App.2d 114, 166 N.E.2d 98 (1960). In the Kahn case, the plaintiff was injured when a pile of lumber on which he had been playing toppled over and boards of the pile fell on him. In that case, our Supreme Court said (5 Ill.2d p. 622, 126 N.E.2d p. 840):
'The test in the case at bar is whether the lumber company in the exercise of ordinary care could reasonably have anticipated the likelihood that children would climb onto the lumber and would be injured if it were not securely piled.'
The court also stated (p. 625, 126 N.E.2d p. 842):
'The element of attraction is significant only in so far as it indicates that the trespass should be anticipated, the true basis of liability being the foreseeability of harm to the child.'
In the Stewart case, which also involved a construction site, the plaintiff was hit in the face with a slaking lime 'snowball,' thrown by his playmates. In that case, this court said (42 Ill.App.2d p. 197, 191 N.E.2d p. 625):
In Smith v. Springman Lumber Co., a seven and one-half year old child climbed upon an unused, rusty oil tank and, while attempting to climb on an adjoining tree, slipped and fell to the ground. It was admitted that the defendant had knowledge that children played on the tank. There the court relied heavily on the Kahn case and stated (41 Ill.App.2d p. 407, 191 N.E.2d p. 258):
'Rather, the proper yardstick with which to measure this case against Kahn is whether or not the tank and tree together, because of defendant's knowledge of the children's playing upon them, created a 'dangerous agency' which was likely to cause injury to the children. As emphasized in Kahn, the true basis of liability is 'the foreseeability of harm to the child.' Under Kahn, these 'were matters for the determination of...
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Ahmed v. Pickwick Place Owners' Ass'n
...Builders & Developers, 83 Ill. App.3d 761, 766, 39 Ill.Dec. 327, 404 N.E.2d 918, 922 (1980), citing Landman v. M. Susan & Associates, Inc., 63 Ill.App.2d 292, 211 N.E.2d 407, 410 (1965) (pile of sand possesses no inherent hazard or in substance or location). Nor is there evidence presented ......
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