Stewart v. DuPlessis, Gen. No. 48943

• Court: United States Appellate Court of Illinois
• Writing for the Court: MURPHY; BURMAN, P. J., and ENGLISH
• Citation: 191 N.E.2d 622,42 Ill.App.2d 192
• Docket Number: Gen. No. 48943
• Decision Date: 12 June 1963
• Parties: Anthony STEWART, a minor by Charles Stewart, his father and next friend, Plaintiff-Appellee, v. Elmer DuPLESSIS, individually and doing business as A. D. Plastering Company, and Edgeworth and Young, a partnership, Defendants, Elmer DuPlessis, individually and doing business as A. D. Plastering Company, Defendant-Appellant.

Page 622

191 N.E.2d 622 42 Ill.App.2d 192 Anthony STEWART, a minor by Charles Stewart, his father and
next friend, Plaintiff-Appellee,
v.
Elmer DuPLESSIS, individually and doing business as A. D.
Plastering Company, and Edgeworth and Young, a
partnership, Defendants,
Elmer DuPlessis, individually and doing business as A. D.
Plastering Company, Defendant-Appellant. Gen. No. 48943. Appellate Court of Illinois, First District, First Division. June 12, 1963.
Rehearing Denied July 8, 1963.

[42 Ill.App.2d 194]

Page 624

Hinshaw, Culbertson, Moelmann & Hoban, Chicago, Oswell G. Treadway, Chicago, of counsel, for appellants.

James A. Dooley, Chicago, for appellee.

[42 Ill.App.2d 195] MURPHY, Justice.

This is a personal injury action. Defendant, Elmer DuPlessis, appeals from a $60,000 verdict and judgment entered against him in favor of plaintiff for the loss of an eye.

On August 27, 1951, defendant (doing business as A. D. Plastering Company) was the plastering contractor for a home under construction. Plaintiff, then a child of 11, with four friends (ages 10 to 15 years), entered the house at the invitation of the owner's son. Defendant's employees had left the premises at about 4:30 in the afternoon, and the boys entered the house at about 7:00 in the evening. Upon entering the living room, the boys saw a wooden platform about 4' X 4' standing on wooden horses. On the platform was a moist white substance, of the consistency of softened butter, formed in a circle about three feet across. The white substance was plasterer's lime, left by defendant's employees to 'slake' overnight in preparation for its use the following morning. It was covered by some bags thrown across it.

Hydrated lime, as used by plasterers, is a caustic alkaline substance available as a fine white powder. Before use in plastering, this powder must be mixed with water and left to stand for a period, usually overnight. This is called 'slaking' the lime. When mixed with water in the correct proportion, the lime has the consistency of softened butter. After standing overnight, the slaked lime is mixed with plaster and more water, and the resulting mixture is then ready to be applied. After the plaster has been added to the slaked lime, the mixture begins to harden rapidly.

Page 625

Shortly after entering the living room, the boys commenced a game of hide and seek. While plaintiff [42 Ill.App.2d 196] was out of the living room, the other boys began making 'snowballs' out of the slaking lime; as plaintiff entered the hallway to meet the others, he was hit on the right side of his face by some of the substance thrown by the others. He started screaming and ran out onto the front porch, where the other boys attempted to remove the substance from his face and eyes. After relatively unsuccessful attempts, plaintiff went home. His mother attempted to remove the substance from his eyes with a towel and hot water. After a short time, he was taken to a clinic, and thence to the emergency room of a hospital, where an eye specialist treated him. On October 12, 1951, another eye specialist removed his right eye.

Defendant contends that the trial court should have directed a verdict for defendant or, alternatively, that a new trial should be granted due to errors at the trial.

Defendant first argues that he owed plaintiff no duty 'to take any safeguards to prevent plaintiff from injury,' since defendant did not have control of the premises where the injury occurred, and thus had no authority to prevent plaintiff from entering the premises. The same contention was made by the defendant lumber company in Kahn v. James Burton Co., 5 Ill.2d 614, 126 N.E.2d 836 (1955), and was there rejected by our Supreme Court. In the Kahn case, a child of eleven was injured at a construction site when a pile of unevenly stacked lumber shifted. The lumber company had no control of the premises, and its only contact with the working being done there consisted of its delivery of the lumber. In rejecting the lumber company's contention that its only duty was to the owner of the premises and to the contractor, our Supreme Court stated (5 Ill.2d p. 620, 126 N.E.2d p. 839):

'The position cannot be sustained. In so far as the lumber company is concerned plaintiff was [42 Ill.App.2d 197] not a trespasser; and if it should have reasonably anticipated that children might come upon the premises and be injured, the fact that it did not own or control the premises cannot relieve it from liability for the consequences of its negligence.'

In the instant case, a mumber of witnesses testified that there were numerous children in the neighborhood, and that they played in the vicinity of the house under construction. The occurrence witnesses testified to previous visits to the home. Defendant himself testified that he visited the site every day, to inspect the work being done by his employees, and he indicated that he was familiar with the neighborhood and the presence of children there. From the testimony the jury could conclude that defendant knew or should reasonably have anticipated the presence of children on the premises. This being so, a duty arose to exercise ordinary care to avoid injury to children thus present. Kahn v. James Burton Co., 5 Ill.2d 614, 126 N.E.2d 836 (1955); Halloran v. Belt Ry. Co. of Chicago, 25 Ill.App.2d 114, 166 N.E.2d 98 (1960).

Defendant next contends that hydrated lime is neither 'imminently nor inherently dangerous,' and that he therefore had no duty to guard or protect it and his failure to do so could not be negligence on his part. Given the testimony adduced at trial, the question is whether leaving slaking lime on premises frequented by children created a condition hazardous to children. We believe this is a question of fact to be resolved by a jury. As stated by our Supreme Court in Kahn v. James Burton Co., 5 Ill.2d at 622, 126 N.E.2d at 840:

'The creator of certain conditions dangerous and hazardous to children because of their immature appreciation of such dangers and hazards must...