Logan v. Old Enterprise Farms, Ltd.

• Decision Date: 21 November 1990
• Docket Number: Nos. 69527,69531,s. 69527
• Parties: , 151 Ill.Dec. 323 Anthony LOGAN, a Minor, by His Mother and Next Friend, Jo Ann Berry, et al., Appellees, v. OLD ENTERPRISE FARMS, LTD., et al., Appellants.
• Court: Illinois Supreme Court

Page 778

564 N.E.2d 778

139 Ill.2d 229, 151 Ill.Dec. 323

Anthony LOGAN, a Minor, by His Mother and Next Friend, Jo

Ann Berry, et al., Appellees, v. OLD ENTERPRISE FARMS, LTD., et al., Appellants.

Nos. 69527, 69531.

Supreme Court of Illinois.

Nov. 21, 1990.

Stephen W. Thomson and Curtis L. Blood, of Reed, Armstrong, Gorman, Coffey, Thomson, Gilbert & Mudge, Edwardsville, for appellant Old Enterprise Farms, Ltd.

John L. McMullin and John P. Cunningham, of Brown, James & Rabbitt, P.C., Belleville, for appellant O'Fallon United Church of Christ.

Maurice E. Bone, Michael J. Reagan and Alvin C. Paulson, of Kassly, Bone, Becker, Dix, Reagan & Young, P.C., Belleville, for appellees.

Richard H. Hoffman and Michael Resis, of Querrey & Harrow, Ltd., Chicago, for amicus curiae Illinois Ass'n of Defense Trial Counsel.

Kathryn Bettasso, of Patricia C. Bobb & Associates, and Josette Belvedere, Chicago, for amicus curiae Illinois Trial Lawyers Ass'n.

Justice CLARK delivered the opinion of the court:

On August 7, 1983, 15-year-old Anthony Logan (plaintiff) was injured when he fell from a tree. The accident left plaintiff a quadriplegic. Plaintiff seeks recovery for damages from defendants Old Enterprise Farms, Ltd. (the Farm), and O'Fallon United Church of Christ (the Church) for the injuries he sustained as a result of the accident. The issue before this court is whether defendants had a legal duty to plaintiff upon which liability may be predicated.

The injury occurred on property owned by the Farm. At the time, plaintiff and his parents were attending a picnic organized by the members of the consistory of the Church. One of the shareholders of the Farm had offered the Church use of the premises for the picnic plaintiff and his parents, members of the Church, attended on the day of the accident. The Church was allowed to use the premises at no cost. Plaintiff had been to the property on several occasions prior to his accident, and had been there as recently as the weekend before the accident.

The Farm, a closely held corporation, owned and had exclusive control of the real estate upon which the accident occurred. The premises, which abutted a lake, were used primarily for recreational purposes. There was a tree on the premises which had hanging from its branches a rope swing used to swing into the lake.

Prior to the date of the accident, the old rope swing was replaced with a new rope swing. The new swing was fitted with a plastic sheath which limited its flexibility and reduced the incidence of entanglement in the tree's branches. Plaintiff had used the rope swing on his prior visits to the premises and knew that the swing frequently got caught in the tree's branches. Plaintiff had seen people use a ladder, which rested at the foot of the tree, to climb the tree and release the swing from the tree's branches.

On the date of the accident, the ladder was leaning against the base of the tree. After plaintiff used the swing 5 to 10 times, the swing became entangled in the tree's branches. Using the ladder at the base of the tree, plaintiff climbed the tree and kicked the swing loose from the branch in which it was entangled. Plaintiff began to climb back down the tree when he fell, and woke up on the ground below the tree.

Plaintiff's parents saw plaintiff swing on the rope before he was injured and saw him climb the tree to release the swing. Although plaintiff's stepfather cautioned plaintiff as he climbed the tree, neither parent tried to prevent plaintiff from doing so.

Plaintiff filed an action against the Farm and the Church in the circuit court of St. Clair County seeking damages for injuries he sustained as a result of the alleged negligence of defendants. In counts I and II of his first amended complaint, plaintiff alleged that the Farm negligently failed to maintain the picnic and swimming area on its premises in a proper and safe condition and failed to warn plaintiff of the dangerous condition existing on the premises. In counts III and IV, plaintiff alleged that the Church negligently failed to provide adequate supervision of plaintiff, the picnic area, and the swing area, and failed to warn plaintiff of the dangerous condition existing on the premises.

Both defendants filed motions for summary judgment (Ill.Rev.Stat.1987, ch. 110, par. 2-1005) contending that they had no legal duty to plaintiff upon which liability could be predicated and that they were entitled to summary judgment as a matter of law. In two separate orders, the trial court alternatively granted the Farm's motion for summary judgment and denied the Church's same motion.

The appellate court reversed the trial court order that had granted the Farm's motion for summary judgment and affirmed the trial court order that had denied the Church's motion. (188 Ill.App.3d 920, 935, 136 Ill.Dec. 223, 544 N.E.2d 998.) We granted leave to appeal (107 Ill.2d R. 315). Based on our review of the record, we believe defendants' motions were appropriate and should have been granted. Accordingly, we reverse the appellate court order that had reversed the trial court's grant of the Farm's motion for summary judgment. We also reverse the appellate court order that had affirmed the trial court's denial of the Church's motion for summary judgment.

Before proceeding with an examination of the issue, we must first point out, as did the appellate court, that we find both defendants are similarly situated so as to make the trial court's alternative rulings on defendants' motions inconsistent. (188 Ill.App.3d at 925, 136 Ill.Dec. 223, 544 N.E.2d 998.) In Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 126 N.E.2d 836, this court concluded that the customary rules of negligence must be applied to determine the liability of owners or parties in possession or control of premises upon which a child is injured. The liability of the Farm, if any, as owner of the real estate in question, and the Church, as the party in control of the premises on the day of the accident, is therefore determined with reference to the same rules of negligence.

Summary judgment is a "drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt." (Purtill v. Hess (1986), 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867.) The motion shall be granted only "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Ill.Rev.Stat.1987, ch. 110, par. 2-1005(c); see Purtill v. Hess (1986), 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867.) The court must construe the evidence "strictly against the movant and liberally in favor of the opponent." Purtill, 111 Ill.2d at 240, 95 Ill.Dec. 305, 489 N.E.2d 867.

Defendants contend that plaintiff's complaint merely alleges the risk of falling from a tree. Because they believe they had no duty to warn plaintiff, defendants claim they are entitled to summary judgment as a matter of law. Plaintiff alleges that the instant action involves more than just a simple risk of falling from a tree. Plaintiff alleges that the tree from which he fell, the ladder resting at the foot of the tree, the rope swing, and the lake interacted to create a dangerous condition for which defendants were under a duty to warn plaintiff. Plaintiff relies on the appellate court decision in Novak v. C.M.S. Builders & Developers (1980), 83 Ill.App.3d 761, 39 Ill.Dec. 327, 404 N.E.2d 918, for his argument.

The plaintiff in Novak was a 10-year-old boy who was injured when he fell off a mound of dirt at a construction site. The excavation for the construction created mounds of dirt which were readily visible to children upon adjacent properties and public ways. The plaintiff alleged that the excavation, the mounds of dirt and a concrete foundation at the base of the excavation, in combination, created a latent dangerous condition that a minor was incapable of appreciating due to his immaturity. The trial court dismissed the plaintiff's action.

The appellate court reversed, stating that the combination of the mounds of dirt, the concrete foundation and the excavation interacted to form a "complex synergistic relationship" which created the dangerous condition that caused the plaintiff's injury. (Novak, 83 Ill.App.3d at 764, 39 Ill.Dec. 327, 404 N.E.2d 918.) Plaintiff relies on this language in presenting his argument to this court.

Plaintiff alleges, as did the plaintiff in Novak, that it was the combination of the tree, the swing, the ladder, the lake and instrumentalities that created the dangerous condition leading to his accident. Unlike the plaintiff in Novak, however, plaintiff has failed to show that the components interacted to create a latent dangerous condition. Contrary to the appellate court's observation, our review of the record indicates that plaintiff presented no evidence to create an issue as to the safety of the tree, the rope swing or the combination of the instrumentalities present on the day of his accident. (188 Ill.App.3d at 925, 927, 136 Ill.Dec. 223, 544 N.E.2d 998.) The fact that the instrumentalities existed together is not proof that they created a dangerous condition.

Although plaintiff relies on Novak in presenting his claim to this court, we believe that the appropriate authority is this court's decision in Corcoran v. Village of Libertyville (1978), 73 Ill.2d 316, 22 Ill.Dec. 701, 383 N.E.2d 177. In Corcoran a dangerous condition was defined by the court as that "which is likely to cause injury to the general class of children who, by reason of their immaturity, might be incapable of appreciating the risk involved." (Corcoran, 73 Ill.2d at 326, 22 Ill.Dec. 701, 383 N.E.2d 177.) The court affirmed the dismissal of a negligence action brought on behalf of a two-year-old child who fell...