Qureshi v. Ahmed

• Decision Date: 30 September 2009
• Docket Number: No. 1-08-0795.,1-08-0795.
• Citation: 334 Ill.Dec. 265,916 N.E.2d 1153
• Parties: Wasim QURESHI, as Father and Next Friend of Mehak Qureshi, a Minor, Plaintiff-Appellant, v. Junaid AHMED and Loretta Ahmed, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

916 N.E.2d 1153

334 Ill.Dec. 265

Wasim QURESHI, as Father and Next Friend of Mehak Qureshi, a Minor, Plaintiff-Appellant, v. Junaid AHMED and Loretta Ahmed, Defendants-Appellees.

No. 1-08-0795.

Appellate Court of Illinois, First District, Third Division.

September 30, 2009.

Clancy Law Office, St. Charles (Wendell W. Clancy, of counsel); and Law Office of Robert G. Black, Naperville (Robert G. Black, of counsel), for Appellant.

Sanchez Daniels & Hoffman LLP, Chicago (Gerald M. Dombrowski), for Appellee.

Justice COLEMAN delivered the opinion of the court:

Plaintiff, Wasim Qureshi, appeals from an order of the circuit court of Cook County granting summary judgment to defendants, Junaid and Loretta Ahmed, in this negligence action for injuries his 10-year-old daughter Mehak sustained in a slip and fall on defendants' treadmill at their home. On appeal, plaintiff claims that the trial court erred in granting summary judgment because the evidence created a jury question as to whether the defendants owed a duty to protect plaintiff's daughter from the danger of the treadmill. Defendants contend that they owed no duty because the treadmill posed an open and obvious danger. For the reasons that follow, we reverse and remand for further proceedings.

The instant appeal presents a case of first impression in Illinois. Our courts have never considered whether a piece of home exercise equipment (i.e., a treadmill) poses an open and obvious danger to a child. Injury by fire, water, and falling from heights are considered open and obvious dangers, appreciable by very young children, 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).

BACKGROUND

On September 25, 2005, Mehak Qureshi sustained injuries to her hands when she slipped and fell while operating a treadmill at the home of Junaid and Loretta Ahmed. Mehak is the 10-year-old daughter of plaintiff Wasim Qureshi. The Qureshi family were friends and fellow mosque members with the Ahmed family. The Ahmeds' daughter Huda was a close friend of Mehak. The two girls and their siblings often visited each others homes, sometimes spending the night.

An overnight visit was arranged to take place on Saturday, September 24, 2005. Mehak, Huda, their respective siblings and several cousins spent the night in sleeping bags in the Ahmeds' living room. The T.V. room which contained the treadmill was located next to the living room. Huda had shown the treadmill to Mehak twice before, demonstrating how it worked at full speed.

No parents were present at either time. After waking up on Sunday morning, Mehak, who turned 10-years-old on that same date, asked Huda if she could use the treadmill. When Huda said it was okay, Mehak went to the treadmill and started it with the key hanging on the treadmill on a black string. Mehak had used a treadmill in her own home without incident. Although the other girls had raced on the treadmill when it was set on speeds of 11 and 13 mph, Mehak began moving at a speed of three mph and pushed it up to a seven. It was at this point that her foot slipped and she fell. When she tried to break her fall with the right hand, her hand got caught in between the base of the treadmill and the moving belt. The treadmill belt did not stop turning as it would only stop upon turning the key. Her hand was "de-gloved" and required surgery including skin grafts, multiple stitches, and ongoing physical therapy.

Plaintiff filed a complaint in negligence seeking damages against Junaid and Loretta Ahmed for the injuries suffered by his daughter Mehak. Plaintiff specifically alleged that the Ahmeds owed Mehak a duty to protect her from harm and that an accessible treadmill in their home presented an unreasonable risk of harm. Plaintiff contended that the lack of adult supervision, failure to provide instruction, and failure to secure the treadmill from the use of curious children breached their duty and led to Mehak's fall.

Defendants filed a motion for summary judgment arguing that there was no genuine issue of material fact as to the element of duty. After hearing argument on the motion, the circuit court granted defendants' motion for summary judgment without explanation. Plaintiff appeals that ruling. For the reasons discussed below, we reverse and remand for further proceedings.

DISCUSSION

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West 2006). When deciding on a motion for summary judgment, courts consider all of the evidence presented in the light most favorable to the nonmoving party. Purtill v. Hess, 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867 (1986). The plaintiff is not required to prove her case at the summary judgment stage. Helms v. Chicago Park District, 258 Ill.App.3d 675, 679, 196 Ill.Dec. 851, 630 N.E.2d 1016 (1994). Summary judgment is a drastic measure that should only be allowed when the right of the moving party is clear and free from doubt. Purtill, 111 Ill.2d at 240, 95 Ill.Dec. 305, 489 N.E.2d 867. A motion for summary judgment is reviewed de novo. Williams v. Manchester, 228 Ill.2d 404, 417, 320 Ill.Dec. 784, 888 N.E.2d 1 (2008).

In the instant case, the trial court granted summary judgment in favor of defendants, finding that they had no duty. Generally, in premises liability cases, the duty owed by a property owner to invitees is one of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on the property. 740 ILCS 130/2 (West 2006). The existence of a duty is a question of law. LaFever v. Kemlite Co., 185 Ill.2d 380, 388-89, 235 Ill.Dec. 886, 706 N.E.2d 441 (1998). Since 1955 when our supreme court decided Kahn v. James Burton Co., the liability of owners and occupiers of land upon which a child is injured has been determined with reference to the customary rules of ordinary negligence. Corcoran v. Village of Libertyville, 73 Ill.2d 316, 326, 22 Ill.Dec. 701, 383 N.E.2d 177 (1978), citing Kahn v. James Burton Co., 5 Ill.2d 614, 624, 126 N.E.2d 836 (1955).

Under Kahn and its progeny, a duty, which would not be imposed in ordinary negligence, will be imposed upon the owner or occupier of land only if such a person knows or should know that children frequent the premises and if the cause of the child's injury was a dangerous condition on the premises. See, e.g., Mt. Zion, 169 Ill.2d at 116-17, 214 Ill.Dec. 156, 660 N.E.2d 863; Corcoran, 73 Ill.2d at 326, 22 Ill.Dec. 701, 383 N.E.2d 177. Here, there is no question that children frequented the Ahmeds' home. The issue here relates to the presence of a "dangerous condition." A dangerous condition is "one 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 line of reasoning following Kahn, however, does not mean that the law imposes a duty on owners and occupiers of land to remedy conditions that pose obvious risks that children generally would be expected to appreciate and avoid. Mt. Zion, 169 Ill.2d at 117, 214 Ill.Dec. 156, 660 N.E.2d 863; Corcoran, 73 Ill.2d at 326, 22 Ill.Dec. 701, 383 N.E.2d 177. It is the reasonable foreseeability of harm that determines liability in negligence actions involving children. Cope v. Doe, 102 Ill.2d 278, 286, 80 Ill.Dec. 40, 464 N.E.2d 1023 (1984). "While certainly there are latent dangers that a child would not appreciate due to his minority, a possessor of land is free to rely upon the assumption that any child old enough to be allowed at large by his parents will appreciate certain obvious dangers or at least make his own intelligent and responsible choice concerning them." Mt. Zion, 169 Ill.2d at 117, 214 Ill.Dec. 156, 660 N.E.2d 863; W. Keeton, Prosser & Keeton on Torts, § 59, at 407 (5th ed. 1984). A danger is considered "obvious" if the condition and the attendant risk of harm are apparent to and would be recognized by a reasonable person or child exercising ordinary perception, intelligence, and judgment. Restatement (Second) of Torts § 343A, Comment b (1965). "When a child is injured, however, courts recognize that it may be foreseeable that the child, due to immaturity, will not fully appreciate the risk involved in encountering what to an adult is an open and obvious danger. * * * The test is whether a typical child who is old enough to be at large would lack the maturity to understand and appreciate the risk involved, therefore making it foreseeable that a typical child might be injured." Grant v. South Roxana Dad's Club, 381 Ill.App.3d 665, 670, 319 Ill.Dec. 780, 886 N.E.2d 543 (2008).

As previously noted, injuries resulting from fire, water, or heights are generally considered open and obvious dangers that are appreciable even by very young children. See Mt. Zion, 169 Ill.2d at 118, 214 Ill.Dec. 156, 660 N.E.2d 863; Restatement (Second) of Torts § 339, Comment j (1965). "The issue in cases involving obvious dangers, like fire, water or height, is not whether the child does in fact understand, but rather what the possessor may reasonably expect of him." Mt. Zion, 169 Ill.2d at 120, 214 Ill.Dec. 156, 660 N.E.2d 863, citing W. Keeton, Prosser & Keeton on Torts, § 59, at 407 (5th ed. 1984); M. Polelle & B. Ottley, Illinois Tort Law § 16.11 (2d. 1994). The test is an objective one based in part on the idea that parents bear the primary responsibility for safeguarding their children and it is reasonable to expect that a child who is permitted to be at large, beyond the watchful eye of his parents, can appreciate certain particular dangers. Mt. Zion, 169 Ill.2d at 126-27, 214 Ill.Dec. 156, 660 N.E.2d 863.

The ability of children to appreciate the danger is not the only issue in determining whether a duty...