Phillips v. J. F. Martin Cartage Co.

• Decision Date: 04 October 1976
• Docket Number: No. 60412,60412
• Citation: 42 Ill.App.3d 890,1 Ill.Dec. 904,356 N.E.2d 1237
• Parties: , 1 Ill.Dec. 904 Roy PHILLIPS, a minor, by and through his father and next friend, Homer Phillips, Plaintiff-Appellee, v. J. F. MARTIN CARTAGE COMPANY, Defendant-Appellant, and Ace Scavenger, Service, Inc., Defendant.
• Court: United States Appellate Court of Illinois

Page 1237

356 N.E.2d 1237

42 Ill.App.3d 890, 1 Ill.Dec. 904

Roy PHILLIPS, a minor, by and through his father and next friend, Homer Phillips, Plaintiff-Appellee, v. J. F. MARTIN CARTAGE COMPANY, Defendant-Appellant and Ace Scavenger, Service, Inc., Defendant.

No. 60412.

Appellate Court of Illinois, First District, First Division.

Oct. 4, 1976.

As Modified on Denial of Rehearing Nov. 4, 1976.

Beverly, Pause, Duffy & O'Malley, Chicago (Frank J. Pause, John J. O'Malley and Dom J. Rizzi, Chicago, of counsel), for defendant-appellant.

Michael H. Eiserman, LaGrange (Kevin J. Karey, LaGrange, of counsel), for plaintiff-appellee.

BURKE, Justice.

This is a negligence action brought to recover damages for personal injuries to a 12-year-old boy who was injured while trespassing on the defendant's premises. In a jury trial a verdict was rendered for the plaintiff. The defendant appeals from the judgment for $10,000 entered upon that verdict contending that it did not breach any legal duty to the plaintiff because the instrumentality which the plaintiff was injured upon did not present an unreasonable risk and the plaintiff's injury was not reasonably foreseeable, and that therefore the court should have granted the defendant's motion for a judgment notwithstanding the verdict or in the alternative the court should have granted the defendant's motion for a new trial.

The accident occurred in the early evening hours of July 17, 1970, while it was still light outside on the grounds of the defendant, J. F. Martin Cartage Company. The 12-year-old plaintiff, two cousins and a friend, all approximately the same age as the plaintiff, had ridden their bicycles over to the defendant's property to look for Drano, a household chemical to clean drains, that the plaintiff's parents needed. The plaintiff testified that 'some Kids' had told him that there was Drano on the premises. The property belonging to the J. F. Martin Cartage Company consisted of 6 3/4 acres of land upon which was located a large warehouse building which had 90 numbered stalls and door openings for loading and unloading trucks. The building was 60 feet wide and 520 feet long. The land surrounding the warehouse was not fenced in, but a company official testified that there were several no trespassing signs located on the premises. The scene of the injury was a steel refuse container located outside one of the truck stalls. The refuse container was rectangular in shape, open at the top, and stood 5 or 6 feet tall and was 8 to 10 feet wide and 20 feet long. At the time of the injury the container was up against the raised loading dock.

The plaintiff testified that he climbed upon the refuse container in order to climb into it to look for Drano, although several of the defendant's employees testified that there was no Drano in the container and that the company had not handled this product recently. The plaintiff testified that as he was climbing he had one hand on the refuse container and one on the loading dock. When he was about a foot and a half off the ground, his foot slipped and he hit or scraped his left knee against the side of the container. He fell and landed on his feet. The incident resulted in a dislocation of the plaintiff's knee. There was no evidence that the refuse container had any defect, and the plaintiff's attorney at trial stated that the plaintiff was not contending that the refuse container had any defect. The plaintiff's father testified that his son was large for his age and was not mentally retarded.

Two dock hands employed by J. F. Martin Cartage Company testified. Jose Valadez testified that while working on the dock the day of the incident he observed the plaintiff and his companions playing near the refuse container. He told them to get away but they did not leave. About 10 minutes later the accident took place. Another dock hand, Anthony Heinz, saw the plaintiff and his companions near the container but did not say anything to them and did not continue to observe them. The plaintiff testified that a man on the dock said it would be okay to look in the refuse container if he did not step on any nails. The dock foreman, Elroy Rios, who was working inside testified that one of his men came in and told him that there were some kids playing 'in the garbage can.' He went out to chase them away, but apparently the accident had already taken place.

The defendant contends that it did not breach any legal duty to the plaintiff because the refuse container did not present an unreasonable risk to the plaintiff and the injury to the plaintiff was not reasonably foreseeable. In considering this argument we shall accept the plaintiff's contentions that the evidence established that the defendant's employees were aware of the plaintiff's presence in the vicinity of the refuse container and that the actions they took in regard to the incident were within the scope of their employment thereby making the defendant corporation liable if their acts constituted negligence. Under these circumstances the plaintiff would be a discovered trespasser to which the owner or occupier of the land owes a duty to use ordinary care to avoid injury to the trespasser. (Briney v. Illinois Central R. R., 401 Ill. 181, 81 N.E.2d 866; Beverly Bank v. Penn. Central Co., 21 Ill.App.3d 77, 315 N.E.2d 110.) However, to establish that such a person violated his duty to use ordinary care, negligence must be shown. Negligence requires the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury to the plaintiff resulting from an occurrence that is not merely a possibility but which is reasonably foreseeable. (Cunis v. Brennan, 56 Ill.2d 372, 308 N.E.2d 617; Van Skike v. Zussman, 22 Ill.App.3d 1039, 318 N.E.2d 244.) In Van Skike, a 6-year-old plaintiff had purchased from one of the defendants a container of lighter fluid after he had obtained a toy cigarette lighter from a gumball machine in the defendant's store. The lighter was not...