Sparling v. Peabody Coal Co.

• Decision Date: 27 November 1974
• Docket Number: No. 46545,46545
• Citation: 322 N.E.2d 5,59 Ill.2d 491
• Parties: Judith SPARLING, Appellant, v. PEABODY COAL COMPANY, Appellee.
• Court: Illinois Supreme Court

Page 5

322 N.E.2d 5

59 Ill.2d 491

Judith SPARLING, Appellant, v. PEABODY COAL COMPANY, Appellee.

No. 46545.

Supreme Court of Illinois.

Nov. 27, 1974.

Rehearing Denied Jan. 28, 1975.

Rex Carr, East St. Louis, and Karns, Starnes, Nester & Stegmeyer, Belleville, for appellant.

Pope & Driemeyer, East St. Louis (W. Thomas Coghill, Jr., East St. Louis, of counsel), for appellee.

GOLDENHERSH, Justice.

Defendant, Peabody Coal Company, appealed from the judgment of the circuit court of St. Clair County entered upon a jury verdict in the amount of $500,000 in favor of plaintiff, Judith Sparling, in her action to recover damages for personal injuries suffered when she fell into a fire burning inside a pile of coal dust or slack. The appellate court reversed the judgment (16 Ill.App.3d 301, 306 N.E.2d 79) and we allowed plaintiff's petition for leave to appeal.

On April 2, 1947, the Perry Coal Company sold a 22 1/2-acre tract of land near Coulterville to Ralph Jones, plaintiff's father, for $400. The land had been used for coal-mining operations from sometime prior to 1918 until 1944 or 1945. In 1946 all of the buildings had been removed. At the time of the sale to Jones the property was not being used, and all that remained from the mining operations were a pond, the main mine shaft, an air shaft and the slack pile involved in this case. The slack pile was described as being approximately 300 feet long, 200 feet wide at one end and about 50 feet wide at the other and varying in height, at various points, from five to six feet. Through several corporate mergers the assets of Perry Coal Company were acquired and its liabilities assumed by defendant.

Plaintiff was born on November 27, 1948, more than a year after her father bought the property. On September 11, 1953, when she was almost five years old she went with her father in his truck to an area next to the slack pile where he was going to pick up some scrap iron. She took off her shoes, got out of the truck and walked on the slack pile. At a point where the slack pile was approximately five feet high, an area approximately five to six feet in width caved in and she fell into a fire burning at the bottom of the pile. Plaintiff suffered burns which required years of medical treatment and 56 surgical procedures.

In reversing the judgment, the majority of the appellate court correctly concluded (see Anderson v. Cosmopolitan National Bank, 54 Ill.2d 504, 301 N.E.2d 296) that the principles applicable to this case are set forth in sections 352 and 353 of the Restatement of the Law of Torts (Second) (hereafter Restatement), which state:

'Sec. 352. Dangerous Conditions Existing at Time Vendor Transfers Possession.

Except as stated in sec. 353, a vendor of land is not subject to liability for physical harm caused to his vendee or others while upon the land after the vendee has taken possession by any dangerous condition, whether natural or artificial, which existed at the time that the vendee took possession.

Sec. 353. Undisclosed Dangerous Conditions Known to Vendor.

(1) A vendor of land who conceals or fails to disclose to his vendee any condition, whether natural or artifical, which involves unreasonable risk to persons on the land, is subject to liability to the vendee and others upon the land with the consent of the vendee or his subvendee for physical harm caused by the condition after the vendee has taken possession, if

(a) the vendee does not know or have reason to know of the condition or the risk involved, and

(b) the vendor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to believe that the vendee will not discover the condition or realize the risk.

(2) If the vendor actively conceals the condition, the liability stated in Subsection (1) continues until the vendee discovers it and has reasonable opportunity to take effective precautions against it. Otherwise the liability continues only until the vendee has had reasonable opportunity to discover the condition and to take such precautions.' (Restatement (Second) of Torts secs. 352, 353 (1965).)

The majority held that plaintiff's complaint, which alleged five acts of negligence (see 16 Ill.App.3d 301, 304, 306 N.E.2d 79), failed to allege 'an actionable breach of the duty owed by defendant to plaintiff * * *.' (16 Ill.App.3d 301, 305, 306 N.E.2d 79, 82.) It pointed out that although the record shows 'that the true basis of liability of the defendant was injected into the case in its early stages' (16 Ill.App.3d 301, 306, 306 N.E.2d 79, 82), making it clear that plaintiff 'was thus made aware of the deficiencies of the complaint, at no time did she seek to amend to allege a proper cause of action under sect. 353' (16 Ill.App.3d 301, 306, 306 N.E.2d 79, 82). The majority stated further that it 'must therefore assume that plaintiff's complaint was not amended because it could not be amended without being divergent from the attendant facts.' (16 Ill.App.3d 301, 306, 306 N.E.2d 79, 83.) It concluded that the evidence did not prove a cause of action under section 353.

Plaintiff contends that the 'fair import of her complaint charged negligence and liability under section 353 of the Restatement * * *.' She argues that 'the appellate court's reversal of the judgment * * * deprived her of the right to the doctrine of aider by verdict and failed to consider the requirement of Sections 33 and 42 of the Civil Practice Act.' She argues further that the complaint alleged, and the evidence proved, that plaintiff's injuries resulted from defendant's negligence, and the fact that under section 353 defendant can be held liable even though its conduct was nonnegligent does not serve to exculpate it from the liability resulting from its negligent conduct.

The case was tried on the theory that defendant had been negligent, Inter alia, in permitting the slack pile to accumulate, in permitting it to burn, in failing to remove it prior to the sale of the land to Jones and in failing to warn of the dangers inherent in the existence of the burning coal dust. Under the issues instruction given the jury, if the jury found that the alleged dangerous condition existed at the time of the sale of the land, the seller's liability could continue so long as the dangerous condition continued to exist. This is not the law (Anderson v. Cosmopolitan National Bank, 54 Ill.2d 504, 301 N.E.2d 296) and the case was tried under an incorrect theory.

When a case is tried under an incorrect theory of law the appropriate action is to reverse the judgment and remand for a new trial. (Tankersley v. Peabody Coal Co., 31 Ill.2d 496, 202 N.E.2d 498; Iroquois Furnace Co. v. Wilkin Manufacturing Co., 181 Ill. 582, 54 N.E. 987.) The appellate court appears to be in agreement that the case was tried under an incorrect theory of law, and the issue which divided the court was whether there was sufficient evidence to prove the essential elements of a cause of action under a correct theory of the case. Where, as here, the appellate court entered, in effect, a judgment notwithstanding the verdict, we will examine the evidence to determine, as a matter of law, if there was evidence which viewed in its aspect most favorable to plaintiff proved the essential elements of the case under the correct theory of law. Tankersley v. Peabody Coal Co., 31 Ill.2d 496, 202 N.E.2d 498; Zank v. Chicago, Rock Island and Pacific R.R. Co.,17 Ill.2d 473, 161 N.E.2d 848.

Prior to examining the evidence, it is necessary to consider one of defendant's contentions concerning the law which governs the case. While defendant, in the main, approves of the rule as stated in section 353 of the Restatement it argues that 'A vendor of real estate should not be liable for injuries sustained from a latent condition on real estate after the vendor has parted with title and possession unless the vendor had actual knowledge of the condition at the time of the sale and transfer of possession.' It argues further that 'a public policy question is presented as to whether actual or constructive knowledge on the part of a vendor of a dangerous condition of real estate is required to impose liability on the vendor after he has parted with title and possession,' and that it would be better policy to require actual knowledge before liability attaches.

Section 353 of the Restatement (Second), set forth verbatim earlier in this opinion, states that a seller of land may be subjected to liability by reason of a condition existing at the time of the sale if:

'(a) the vendee does not know or Have reason to know of the condition or the risk involved, and

(b) the vendor knows Or has reason to know of the condition, and Realizes or should realize the risk involved, and has reason to believe that the bendee will not discover the condition or realize the risk.' (Emphasis added.) (Restatement (Second) of Torts sec. 353(1)(a), (1)(b) (1965).)

The italicized words were added in the Restatement (Second) and were not contained in the first Restatement. Subparagraph (c) of the Comment on subsection 1 (Restatement, Second) states:

'(c) It is not, however, necessary that the vendor have actual knowledge of the condition, or that he be in fact aware that it involves an unreasonable risk of physical harm to persons on the land. It is enough that he has reason to know that the condition exists and is dangerous, as 'reason to know' is defined in section 12(1)--that is to say, that he has information from which a person of reasonable intelligence, or his own superior intelligence, would infer that the condition exists, or would govern his conduct on the assumption that it does exist, and would realize that its existence will involve an unreasonable risk of physical harm to persons on the land.' Restatement (Second) of Torts sec. 353(1), Comment (c) at 23 (1965).

We have considered defendant's argument that permitting liability to attach when a seller has...