Shull v. Harristown Tp.

• Decision Date: 16 January 1992
• Docket Number: No. 4-91-0449,4-91-0449
• Parties: , 166 Ill.Dec. 142 Steven Craig SHULL, a Minor, by his father and next friend, John R. Shull, and John R. Shull, Individually, Plaintiffs-Appellants, v. HARRISTOWN TOWNSHIP, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1164

585 N.E.2d 1164

223 Ill.App.3d 819, 166 Ill.Dec. 142

Steven Craig SHULL, a Minor, by his father and next friend John R. Shull, and John R. Shull, Individually Plaintiffs-Appellants, v. HARRISTOWN TOWNSHIP, Defendant-Appellee.

No. 4-91-0449.

Appellate Court of Illinois,

Fourth District.

Jan. 16, 1992.

Willoughby & Latshaw, P.C., Decatur (K. Michael Latshaw, of counsel), for plaintiffs-appellants.

Evan H. Johnson, Armstrong, Winters, Prince, Featherstun & Johnson, Decatur, for defendant-appellee.

Justice KNECHT delivered the opinion of the court:

On May 4, 1987, plaintiff, eight-year-old Steven Craig Shull, injured his hand while swinging on a sliding gate of a fence surrounding defendant Harristown Township's storage yard. Plaintiff's father, John R. Shull, Sr., filed suit on behalf of his son, and individually, to recover damages allegedly incurred from the injury. Harristown Township filed a motion for summary judgment. The Macon County circuit court granted its motion on June 12, 1991. Plaintiffs appeal, arguing summary judgment in favor of defendant was improper. We disagree and affirm.

When the accident occurred, Steven was eight years old, but would reach age nine on July 23, 1987. Steven's father, John R. Shull, Sr., filed a four-count complaint on behalf of Steven and individually. Plaintiffs later sought, and received, a voluntary dismissal of counts II and IV, which were pleaded against an additional party. The remaining counts were directed against defendant Harristown Township. Count I sought damages for Steven's personal injury, and was brought on behalf of Steven by his father. Count III was brought by Steven's father as plaintiff, individually, and sought compensation for Steven's medical expenses. Both counts alleged Harristown Township knew or should have known children would, and did, play in the yard and on the gate. Each count also alleged the gate constituted an unreasonably dangerous condition, defendant had actual or constructive notice of the unreasonably dangerous structure and sufficient time to remedy the condition before May 4, 1987. In addition, each count also alleged defendant was negligent by not keeping the metal gate locked or securing it to prevent persons from being injured. Steven, his parents, and the highway township commissioner were orally deposed.

During his deposition, Steven stated that on May 4, at approximately 4:30 p.m., he, his 10-year-old brother, and an 8-year-old friend went to play on a rock pile in Harristown Township's storage yard. Paul McKinney, the township's highway commissioner, was in charge of the yard. He testified the property was surrounded by a chain link fence. The gate was closed or padlocked only when McKinney was on vacation or when privately owned equipment was stored in the yard. He described the gate as a 16-foot rolling gate which slides horizontally.

The highway commission stored piles of rocks, culverts, and equipment in the yard. The township stored trucks, loaders, cinder spreaders, and snowplows in the yard. There was also a diesel and a gasoline gas tank in the yard. Mr. McKinney testified the fence and gate were erected approximately eight years ago to establish property lines. He conceded it was also built to keep people out of the yard. However, before the fence enclosed the yard, there were no problems with children playing in the yard, theft, or vandalism.

Steven's parents had told him to stay away from the township property. They feared he could be hurt by playing with matches around the gas stored there, or he might damage something. On the day Steven was injured, his father specifically told him not to go to the yard. Steven, his brother, and his friend had played on the rock pile four or five times within the previous month and a half before May 4. Steven testified that on one of the earlier occasions, they saw a man enter the township property in a truck. Steven said the man saw them playing on the rock pile, but said nothing to them. During the other times they played there, no one else was on the property.

McKinney testified he saw two children playing on a rock pile in the yard a few weeks before Steven's injury. He told them to leave the yard and never return. Although he did not know how old the children were, he stated they were "too small to be playing out there by themsel[ves]." Other than this occurrence, Mr. McKinney knew of no other occasion when children played in the yard, and did not know children played on the gate. He also did not know Steven and his friends were playing on the gate on May 4, 1987, until he later learned about Steven's injury.

Steven's father testified he frequently saw children playing on defendant's rock piles on nice days. He knew of no instance, however, of children playing on the gate on which his son was injured. Steven's mother, Glenna M. Shull, also testified she saw children playing on the rock piles. However, she noticed these children after the workday ended for Harristown employees. Both parents also testified they saw children playing within the yard during township trustee meetings which occurred in a building in the yard. Although within the last three to four years McKinney had not attended many township meetings, he stated he never saw children playing in the yard during meetings which he attended. Shull also testified that when he spoke with McKinney after Steven was injured, McKinney said he knew children were playing on the rock piles, but he did not think anyone would get hurt.

Steven testified that on May 4, he, his brother, and their friend played on the rock pile for about 45 minutes, and then started playing on the gate. Although they had not played on the gate before, they agreed it was a good idea. One or more of the children would stand on the gate, and the other one or two would push it. Steven rode the gate this way five or six times before his hand was injured. While being pushed, a roller supporting the gate ran over Steven's hand. He knew the rollers were there. The two rollers were in a stationary position and he thought both rollers had already passed. During other times he was being pushed, he would raise his hand from the gate as it approached a roller, and when the roller passed, he would put his hand back on the gate. Steven stated he removed his hand in this way because he knew if he did not do so, "it would roll right over [his] hand" and hurt him. McKinney and Steven both stated the gate was not defective when Steven was injured.

On June 12, 1991, the court considered the complaint, answer, and depositions, and granted summary judgment to Harristown Township. It found there was no evidence sufficient to raise a triable issue of fact about whether a dangerous condition existed on the township's property which was likely to injure children of Steven's age and maturity because they could not comprehend the risk of the condition involved. The court dismissed plaintiffs' complaint with prejudice, and noted a written order would not be filed.

Summary judgment is appropriate when "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.1989, ch. 110, par. 2-1005; Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill.2d 229, 233-34, 151 Ill.Dec. 323, 325, 564 N.E.2d 778, 780; Suhadolnik v. City of Springfield (1989), 184 Ill.App.3d 155, 164, 133 Ill.Dec. 29, 34, 540 N.E.2d 895, 900.) Because it is a drastic means of disposing of litigation, summary judgment should be granted only when the "right of the moving party is clear and free from doubt." Logan, 139 Ill.2d at 233-34, 151 Ill.Dec. at 325, 564 N.E.2d at 780.

Each district of the Illinois Appellate Court, including this one, has periodically cited the abuse of discretion standard as governing review of a trial court's ruling on a motion for summary judgment, often in the context of setting forth general legal principles, but sometimes directly in analyzing and ruling on the appeal. (Wil-Shore Motor Sales, Inc. v. Continental Illinois National Bank & Trust Co. (1984), 130 Ill.App.3d 167, 172, 85 Ill.Dec. 648, 652, 474 N.E.2d 376, 380; Lindenmier v. City of Rockford (1987), 156 Ill.App.3d 76, 86, 108 Ill.Dec. 624, 631, 508 N.E.2d 1201, 1208; Kemp v. Sisters of the Third Order of St. Francis (1986), 143 Ill.App.3d 360, 361-62, 97 Ill.Dec. 709, 710, 493 N.E.2d 372, 373; Fitt v. City of Mattoon (1991), 215 Ill.App.3d 472, 158 Ill.Dec. 882, 574 N.E.2d 1275; Stofer v. First National Bank (1991), 212 Ill.App.3d 530, 541, 156 Ill.Dec. 570, 578, 571 N.E.2d 157, 165.) This is not the proper standard of review. (See, e.g., Zale Construction Co. v. Hoffman (1986), 145 Ill.App.3d 235, 240-41, 98 Ill.Dec. 708, 711-12, 494 N.E.2d 830, 833-34; Demos v. National Bank (1991), 209 Ill.App.3d 655, 659-60, 153 Ill.Dec. 856, 859, 567 N.E.2d 1083, 1086.) The entry of summary judgment is not a matter within the discretion of the trial court. In reviewing a trial court's ruling on a motion for summary judgment, the appellate court should consider anew the facts and law related to the case and determine whether the trial court was correct.

This case raises the question of whether the pleadings, depositions, admissions on file, and affidavits showed that a dangerous condition existed on defendant's property, the risks of which a child of Steven's age and maturity could not recognize. The parties agree the standard for a property owner's liability for injuries incurred by a minor on the owner's property is outlined in Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 126 N.E.2d 836, and discussed further in Corcoran v. Village of Libertyville (1978), 73 Ill.2d 316, 22 Ill.Dec. 701, 383 N.E.2d 177. The Corcoran court noted Kahn established the foreseeability of harm to children as the cornerstone of liability. Harm to...