Schoen v. Harris

• Decision Date: 14 April 1969
• Docket Number: Gen. No. 68--29
• Citation: Schoen v. Harris, 246 N.E.2d 849, 108 Ill.App.2d 186 (Ill. App. 1969)
• Parties: Fred SCHOEN, Plaintiff-Appellee, v. Raymond E. HARRIS, Robert W. Brown and Stanley Schoen, Defendants-Appellants.
• Court: Appellate Court of Illinois

Page 849

246 N.E.2d 849

108 Ill.App.2d 186

Fred SCHOEN, Plaintiff-Appellee, v. Raymond E. HARRIS, Robert W. Brown and Stanley Schoen Defendants-Appellants.

Gen. No. 68--29.

Appellate Court of Illinois, Third District.

April 14, 1969.

Cassidy, Cassidy, Quinn & Lindholm, Peoria, for appellants.

Chester Thomson, Bloomington, August Black, Morris, for appellee.

STOUDER, Presiding Justice.

Plaintiff-Appellee, Fred Schoen, commenced this action in the Circuit Court of Tazewell County seeking damages for personal injury against Raymond Harris, Robert Brown and Stanley Schoen, Defendants-Appellants. At the close of plaintiff's evidence the court directed a verdict in favor of defendants on the first count of the complaint based on the negligence of defendants toward the plaintiff as a social guest. No error is assigned on this ruling. At the close of all the evidence, the court declined to direct a verdict in favor of defendants on the second count of the complaint based on wilful and wanton conduct of the defendants toward the plaintiff as a social guest. The issues raised by the second count of the complaint were submitted to the jury resulting in a verdict and judgment against defendants in favor of plaintiff in the sum of $10,000.00 from which judgment defendants have appealed.

The facts are largely undisputed. The defendants are three bachelors who leased and occupied a residence near Peoria, Illinois, the premises including an outdoor swimming pool. Plaintiff, Fred Schoen, is the father of Stanley Schoen, one of the defendants. On the day in question, Stanley Schoen invited his parents, his sister and her husband and their seven year old daughter to visit him. On the day of the visit, Harris and Brown had left the house and had gone elsewhere but were aware that Stanley Schoen had invited the members of his family to visit him. The parties ate lunch about 2:30 in the afternoon and at about 4 o'clock some of the members of the party went swimming, including plaintiff Fred Schoen but not including his son Stanley Schoen. Plaintiff swam for about thirty minutes talking and playing with the other members of the party which included his granddaughter. Near the end of this period he observed his granddaughter using a 'bongo board' which was located on the concrete surface adjacent to the swimming pool.

The 'bongo board' which was admitted into evidence, is an amusement or exercise device. It consits of two wooden pieces. The first a circular roller about fifteen inches in length and about five inches in diameter. Midway between the two ends is a groove about one inch wide which encircles the roller. The second piece is an ordinary hardwood board eleven inches wide and thirty six inches long. On the under side of the board is a wooden strip three quarters of an inch wide, three quarters of an inch deep and running the length of the board. The device is used by placing the board on the roller with the strip on the underside of the board fitting into the groove on the roller. By placing one's feet at either end of the board and by shifting one's weight from one foot to the other a 'teeter-totter' effect results. Although the device appears to have no particular relation to swimming, the defendants indicated that the device was commonly used for amusement, for developing leg muscles and for improving balance.

When plaintiff's granddaughter called to him, plaintiff got out of the pool and walked to within a few feet of where his granddaughter was using the 'bongo board'. She got off the 'bongo board' and plaintiff decided to try the device. He placed his left foot on one end of the board and shortly after placing his right foot on the board he 'flipped', fell on the concrete surface and broke his hip. Neither Stanley Schoen or either of the other defendants was present at the scene of the incident at the time it occurred. Two occurrence witnesses testified, plaintiff and his wife. The wife's testimony corroborates the events preceding the injury i.e. the swimming, the use of the 'bongo board' by the granddaughter, the getting on the 'bongo board' by plaintiff and his fall.

In seeking to reverse the judgment of the trial court, defendants contend the trial court erred in denying their motion for a directed verdict at the close of the evidence and in denying their post trial motion for judgment notwithstanding the verdict. Defendants argue that as a matter of law the evidence is insufficient to support the conclusion that their conduct was wilful and wanton, that any misconduct of theirs proximately caused the injury to plaintiff or that plaintiff was free from contributory wilful and wanton conduct. Defendants also argue that the trial court erred in the giving or refusing of instructions but in so far as errors are claimed in instructions given in behalf of plaintff, they are likewise based on insufficiency of evidence and are therefore necessarily related to the principal issues of the case.

With respect to wilful and wanton conduct, the complaint alleges in substance one, that the defendants placed a bongo board near the edge of the swimming pool for use by their guests, two, that defendants invited the plaintiff to use the pool and the bongo board, three, that defendants knew or should have known that the plaintiff was not familiar with the operation of a bongo board and four, that defendants therefore had a duty to warn plaintiff of the nature of the operation of the bongo board since it presented a potentially dangerous condition to a person not familiar with it. The alllegations of the complaint were incorporated as an issues instruction.

Both parties concede that plaintiff's status was one of a social guest. The general rule is that an occupant of land has no duty to avoid or prevent injury to a licensee (which includes a social guest) but such occupant does have a duty to refrain from wilfully or wantonly injuring such licensee. Marcovitz v. Hergenrether, 302 Ill. 162, 134 N.E. 85 and Dent v. Great Atlantic & Pacific Tea Co., 4 Ill.App.2d 500, 124 N.E.2d 360. It follows that an occupant has no general duty of reasonable care toward a licensee to make the premises safe or to discover unsafe conditions on the premises. The duty to refrain from wilful or wanton injury as...