Perez v. Heffron

• Decision Date: 14 September 2016
• Docket Number: No. 2–16–0015.,2–16–0015.
• Citation: 407 Ill.Dec. 566,63 N.E.3d 998
• Parties: Rosa PEREZ, Individually and as Independent Administrator of the Estate of Edgar Ivan Fernandez Perez, Deceased, Plaintiff–Appellant, v. Steve HEFFRON, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

63 N.E.3d 998

407 Ill.Dec. 566

Rosa PEREZ, Individually and as Independent Administrator of the Estate of Edgar Ivan Fernandez Perez, Deceased, Plaintiff–Appellant,

v.Steve HEFFRON, Defendant–Appellee.

No. 2–16–0015.

Appellate Court of Illinois, Second District.

Sept. 14, 2016.

Tomasik Kotin Kasserman, LLC, of Chicago (Shawn S. Kasserman and Patrick J. Giese, of counsel), for appellant.

Fabricius & Lindig, of Ottawa (Raymond P. Fabricius, of counsel), for appellee.

OPINION

Justice ZENOFF delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Rosa Perez, the mother of Edgar Ivan Fernandez Perez, appeals from an order of the circuit court of Du Page County granting summary judgment in favor of defendant, Steve Heffron, in this wrongful death action arising from Edgar's drowning in defendant's swimming pool. We affirm.

¶ 2 I. BACKGROUND

¶ 3 The following undisputed facts are taken from depositions, photographs, and affidavits in the record. On Friday, June 14, 2013, defendant held a yard sale at his home in Bartlett, Illinois. Miguel Fernandez attended the sale along with his 34–month–old son, Edgar.¹ Miguel's sister, Socorro Fernandez, and their parents (“grandparents”) also attended the sale. Socorro's two-year-old granddaughter, Kristy, was with her.

¶ 4 Color photographs show the condition of the front, side, and back yards of defendant's home on that Friday. Items for sale were on the ground and on tables in the front yard. A walkway two pavers wide, which would accommodate single-file pedestrians, led to the backyard through a narrow side yard, bounded on one side by the house and shrubs and on the other by a large aboveground swimming pool. The pool appeared to be constructed of durable material and installed in the yard as a permanent and dominant fixture. Large hoses snaked through and around pool filters and pumps on the side of the pool facing the pedestrian walk. A very narrow strip of lawn separated the pool from the walk. Nothing obstructed a pedestrian on the walk from seeing the pool. A deck with a gate giving access to the pool was adjacent to one side of the pool. Stairs led from the deck down to a back patio area, where items were grouped for sale. A wooden fence with a gate separated the back and front yards.

¶ 5 Defendant had deliberately placed a clothes rack in front of the deck stairs to prevent yard-sale patrons from going onto the deck. According to defendant, on the previous day he ascertained that the deck gate to the swimming pool was latched. On that Friday morning, a blue plastic solar cover, used to heat the water in the pool, covered the entire inner perimeter surface area of the pool. According to defendant, a child standing on the deck looking at the solar cover would not be able to see the water. That Friday morning, defendant again checked the gate, saw that it was closed, and assumed that it was still latched.

¶ 6 In the early afternoon, Edgar was playing in defendant's front yard in the company of the Fernandez family and defendant. Defendant told Miguel, Socorro, and the grandparents that there were more items for sale in the backyard. Miguel had Edgar by the hand. Socorro, Kristy, and the grandparents went into the backyard, but Miguel stopped at the gate in the fence, uncertain if he wanted to look at more merchandise.² Miguel decided not to follow the others into the backyard. Edgar pulled on him, wanting to go with Socorro, Kristy, and the grandparents. Miguel called to the others to let them know that he was leaving Edgar in their care. They did not hear and did not realize that Edgar was no longer with Miguel. Miguel returned to the front of the house.

¶ 7 While Socorro was looking at the merchandise, Kristy walked away from her. According to Socorro, that was when she noticed the swimming pool. She found Kristy on the deck by the pool. The solar cover was “like a ball floating around,” and it covered only a “corner” or a “quarter” of the water. The cover was moving. Socorro did not investigate further, thinking that a filter caused the movement. Socorro, Kristy, and the grandparents returned to the front of the house, where they found Miguel standing in the street by the car, ready to leave. When Miguel asked where Edgar was, Socorro screamed, and she, Miguel, and defendant ran into the backyard. Edgar had drowned in the pool. The police investigation revealed that there was no functioning latch on the pool gate.

¶ 8 Plaintiff filed suit against defendant for wrongful death and survival. The second amended complaint alleged that defendant was negligent in that he failed to install a self-latching pool gate, failed to erect an enclosure making his pool inaccessible to children, and failed to warn invitees of the pool's presence. Each allegation was accompanied by the further allegation that the danger of the water in the pool was concealed by the solar cover. On September 22, 2015, defendant filed a motion for summary judgment on the grounds that he owed no duty to plaintiff and that the proximate cause of Edgar's death was Miguel's failure to supervise him. On December 9, 2015, the trial court granted summary judgment in favor of defendant, finding that the pool posed an open and obvious danger, relieving defendant of any duty. This timely appeal followed.

¶ 9 II. ANALYSIS

¶ 10 Plaintiff contends that summary judgment was not appropriate, for the following reasons: (1) the solar cover hid the danger of drowning from Edgar, and neither Miguel nor Socorro knew of the pool's presence; (2) defendant created a “distraction” by cluttering the backyard with merchandise and hiding the stairway entrance to the pool; and (3) the law imposing upon children of tender years the duty to recognize and protect themselves from the danger of drowning is absurd and should be changed.

¶ 11 Summary judgment is a drastic means of disposing of litigation and should be granted only when the right of the moving party is clear and free from doubt. Stevens v. Riley, 219 Ill.App.3d 823, 829, 162 Ill.Dec. 534, 580 N.E.2d 160 (1991). Summary judgment will be granted when the pleadings, depositions, admissions, and affidavits on file show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Stevens, 219 Ill.App.3d at 829, 162 Ill.Dec. 534, 580 N.E.2d 160. We review de novo a trial court's grant of summary judgment. Duffy v. Togher, 382 Ill.App.3d 1, 7, 320 Ill.Dec. 391, 887 N.E.2d 535 (2008).

¶ 12 Owners and occupiers of land are not ordinarily required to foresee and protect against injuries resulting from dangerous conditions that are open and obvious. Suchy v. City of Geneva, 2014 IL App (2d) 130367, ¶ 22, 380 Ill.Dec. 395, 8 N.E.3d 565. A condition is “open and obvious” where a reasonable person exercising ordinary perception, intelligence, and judgment would recognize both the condition and the risk involved. Suchy, 2014 IL App (2d) 130367, ¶ 22, 380 Ill.Dec. 395, 8 N.E.3d 565. Open and obvious dangers include fire, height, and bodies of water and are considered to be apparent to young children. Suchy, 2014 IL App (2d) 130367, ¶ 22, 380 Ill.Dec. 395, 8 N.E.3d 565. The legal concept of reasonable foreseeability of injury from drowning in swimming pools takes into account that even young, unsophisticated, or immature people are assumed to appreciate the risks associated with such conditions. Bezanis v. Fox Waterway Agency, 2012 IL App (2d) 100948, ¶ 28, 359 Ill.Dec. 663, 967 N.E.2d 393. Where the physical nature of the condition is undisputed, courts can decide whether a danger is open and obvious as a question of law. Suchy, 2014 IL App (2d) 130367, ¶ 22, 380 Ill.Dec. 395, 8 N.E.3d 565. Specifically, swimming pools have been held to be open and obvious dangers as a matter of law. Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill.2d 110, 118, 214 Ill.Dec. 156, 660 N.E.2d 863 (1995). Whether a condition is open and obvious depends not on subjective knowledge but on the objective knowledge of a reasonable person confronted with the same condition. Park v. Northeast Illinois Regional Commuter R.R. Corp., 2011 IL App (1st) 101283, ¶ 14, 355 Ill.Dec. 882, 960 N.E.2d 764.

¶ 13 If a child is too young, mentally or chronologically, to be “at large,” the duty to supervise the child so as to protect against obvious risks lies primarily with the accompanying parent. Stevens, 219 Ill.App.3d at 832, 162 Ill.Dec. 534, 580 N.E.2d 160. Failure of a parent to supervise his or her child is not foreseeable, and the law does not require a landowner to anticipate negligence on the parent's part and guard against it. Englund v. Englund, 246 Ill.App.3d 468, 476, 186 Ill.Dec. 57, 615 N.E.2d 861 (1993).

¶ 14 Plaintiff argues that the open-and-obvious doctrine is inapplicable because the solar cover hid the danger of drowning. Plaintiff also maintains that neither Miguel nor Socorro knew of the pool's existence. Although a plaintiff is not required to prove his or her case at summary judgment, to survive a motion for summary judgment, the plaintiff must present a factual basis that would arguably entitle him or her to a judgment. Bank of America, N.A. v. Adeyiga, 2014 IL App (1st) 131252, ¶ 54, 390 Ill.Dec. 431, 29 N.E.3d 60. Although defendant testified at his deposition that the solar cover overlaid the entire interior surface of the pool in the morning, there is no evidence that it was in the same position when Edgar encountered the pool in the early afternoon. Socorro testified at her deposition that the solar cover was balled up over a “corner” or a “quarter” of the water when she pulled Kristy away from the deck. To infer that Edgar balled up the plastic cover is not reasonable, because of its size. Also, it appears from defendant's deposition testimony that there were other people on the premises.

¶ 15 Socorro testified at her deposition that she first saw the pool when she noticed Kristy on the deck, but she also testified that ...