Strode v. Becker

• Court: Appellate Court of Illinois
• Writing for the Court: GREEN
• Citation: Strode v. Becker, 206 Ill.App.3d 398, 564 N.E.2d 875, 151 Ill.Dec. 420 (Ill. App. 1990)
• Decision Date: 26 September 1990
• Docket Number: No. 4-90-0172,4-90-0172
• Parties: , 151 Ill.Dec. 420 Brad STRODE, as Guardian and Next Friend of John David Strode, a/k/a J.D. Strode, Plaintiff-Appellant, v. William BECKER, Defendant-Appellee.

Page 875

564 N.E.2d 875

206 Ill.App.3d 398, 151 Ill.Dec. 420

Brad STRODE, as Guardian and Next Friend of John David Strode, a/k/a J.D. Strode, Plaintiff-Appellant, v. William BECKER, Defendant-Appellee.

No. 4-90-0172.

Appellate Court of Illinois Fourth District.

Sept. 26, 1990.

As Modified on Denial of Rehearing Jan. 24, 1991.

Thomas R. Blondell, Beckett & Crewell, Champaign, for plaintiff-appellant.

Michael E. Raub, Heyl, Royster, Voelker & Allen, Urbana, for defendant-appellee.

MODIFIED ON DENIAL OF REHEARING

Justice GREEN delivered the opinion of the court:

On July 21, 1989, plaintiff Brad Strode, as guardian and next friend of John David Strode, a minor, brought suit in the circuit court of Champaign County against defendant William Becker, charging negligence and seeking damages for personal injuries sustained by the minor. On January 8, 1990, upon defendant's motion (Ill.Rev.Stat.1987, ch. 110, par. 2-615) that court dismissed plaintiff's first-amended complaint with prejudice for failure to allege a breach of duty owed by defendant to the minor. Plaintiff appeals. We reverse and remand.

The plaintiff's first-amended complaint, in part, alleged: (1) on April 1, 1988, John David (then 2 1/2 years old), and his family were at the defendant's home; (2) at that time, the child was injured when his fingers were caught in the rotating spokes of an "exercycle" while being operated by the defendant's niece; (3) the "exercycle" was located in the defendant's living room adjacent to the children's playroom; (4) the "exercycle" was a dangerous condition of which the defendant negligently failed to remedy or warn the child as to its dangerous propensities; (5) the injury was foreseeable because the defendant knew the child would be visiting his home and also knew or should have known the "exercycle" posed greater risks than children can comprehend and avoid; and (6) the defendant knew that other children had previously been injured by using and/or playing with the "exercycle."

The complaint also alleged that pursuant to section 2 of the Premises Liability Act (Act) (Ill.Rev.Stat.1987, ch. 80, par. 302), the defendant, as a homeowner-occupier possessed a duty to exercise reasonable care under the circumstances regarding the state of the premises for those persons lawfully upon the premises.

A discussion of a landowner's duty to protect children from dangerous conditions existing on the property logically begins with Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 126 N.E.2d 836, a case involving a trespassing child. There, the supreme court abandoned the attractive nuisance doctrine and concluded that the appropriate criterion for determining landowner liability in cases of personal injury to children is the ordinary rules of negligence. Since the minor plaintiff in Kahn was a trespasser, the court noted that ordinarily, a landowner has no duty to protect children who are trespassing on the property. However, the court recognized that children, even if trespassing on the property, need special protection from injury, because their immaturity and inexperience render them unable to comprehend and avoid dangerous situations.

Thereupon, the Kahn court formulated an exception to the general rule that a landlord has no duty to protect children who are trespassing:

"It is recognized, however, that an exception exists where the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children. In such cases there is a duty upon the owner or other person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it." Kahn, 5 Ill.2d at 625, 126 N.E.2d at 842.

Logically, a landowner or occupier would have at least as great a duty to children who are invitees or, as here, licensees as to those who are trespassers. Subsequent to Kahn, the cases have deemed landowners or occupiers to have the same duty to children who are invitees or licensees. For example, in Pasierb v. Hanover Park Park District (1981), 103 Ill.App.3d 806, 59 Ill.Dec. 461, 431 N.E.2d 1218, the complaint alleged a seven-year-old boy drowned in a creek located in a park, owned and operated by the defendant park district. The creek was covered with a layer of ice upon which snow had accumulated, concealing the creek's location. The trial court dismissed that plaintiff's complaint, and the appellate court, after applying the Kahn conditions, reversed, holding the creek was a dangerous condition which, under the circumstances, posed a risk which children generally could not appreciate and avoid.

The supreme court in Corcoran v. Village of Libertyville (1978), 73 Ill.2d 316, 22 Ill.Dec. 701, 383 N.E.2d 177, noted that as a result of Kahn, the common law categories of trespasser, licensee, and invitee no longer have a bearing on whether a landowner has a duty to protect children from dangerous conditions on the property. Provided that the prerequisites set forth in Kahn are present, the injury is deemed foreseeable and the landowner has a duty to remedy the condition. Corcoran, 73 Ill.2d at 326, 22 Ill.Dec. at 704, 383 N.E.2d at 180.

As plaintiff correctly sets forth, now, under section 2 of the Act, an owner or occupier of land has a duty to exercise ordinary care to a person rightly on the land regardless of whether that person is an invitee or a licensee. Previous to the enactment of the Act, the duty of a landowner or occupier to a licensee, not subject to the protection of Kahn, was to refrain from wilful and wanton misconduct. (O'Donnell v. Electro-Motive Division of the General Motors Corp. (1986), 148 Ill.App.3d 627, 631-32, 102 Ill.Dec. 51, 54, 499 N.E.2d 608, 611.) However, because of the precedent of Kahn and its progeny, the duty of the defendant here to the child allegedly injured was not changed by the enactment of the Act.

In examining the first amended complaint to see whether it complied with the Kahn factors, we first note that defendant does not dispute the sufficiency of that portion of the complaint alleging that he knew young children would likely be in the vicinity of the "exercycle." We next consider whether that complaint properly alleged the "exercycle" was a dangerous instrument. An "exercycle" is, apparently a stationary bicycle upon which a person sits and pedals causing a single wheel to rotate, all for the purpose of obtaining exercise. Clearly, by itself, such an apparatus is a harmless agency. However, an innocuous object, when combined with additional circumstances, can become a dangerous condition. (Niemann v. Vermilion County Housing Authority (1981), 101 Ill.App.3d 735, 739, 57 Ill.Dec. 156, 160, 428 N.E.2d 706, 710.) In order for the trial court to conclude that a dangerous condition existed, the plaintiff must sufficiently allege ultimate facts that describe a condition that "exposes children to risks greater than those which normally attend their daily lives." Corcoran, 73 Ill.2d at 328, 22 Ill.Dec. 705, 383 N.E.2d at 181.

The defendant properly contends that some authorities plaintiff cites in support of his contention that the alleged "exercycle" was a dangerous instrument are distinguishable from the allegations contained in plaintiff's complaint. For example, the plaintiff cites to Scarano v. Town of Ela (1988), 166 Ill.App.3d 184, 117 Ill.Dec. 72, 520 N.E.2d 62, where the appellate court found that plaintiff's complaint sufficiently established a dangerous condition by alleging a defect in a slide. Plaintiff also cites to Ford v. Wilson (1989), 184 Ill.App.3d 374, 132 Ill.Dec. 585, 540 N.E.2d 1, where the appellate court deemed an overgrown bike path a dangerous condition, because the potential harm of being hit by a car was hidden from the bike rider. Here, the only direct allegation of any defect in the "exercycle" was that it was "an old, time worn exercycle." The complaint does not directly state how the "old, time worn" apparatus became dangerous.

Closer in point is the case of Novak v. C.M.S. Builders & Developers (1980), 83 Ill.App.3d 761, 39 Ill.Dec. 327, 404 N.E.2d 918. In Novak, the complaint alleged that a 10-year-old plaintiff was injured after falling into an excavation at a construction site. The trial court dismissed plaintiff's complaint against the defendant builder, and the appellate court reversed. The appellate court concluded that in combination, the excavation, mounds of dirt, and concrete created a foreseeable danger that a child may slip, slide, and fall. Moreover, the court found that the excavation did not present merely the risk of falling into an obvious depression but that circumstances may also be proved to be sufficiently "obscure in their potential danger to infant trespassers as to be more unusual than those encountered in their daily lives." Novak, 83 Ill.App.3d at 765, 39 Ill.Dec. at 330, 404 N.E.2d at 921.

While the instant complaint does not state directly how the exercycle was dangerous, we conclude a sufficient indirect allegation is made to survive dismissal at this stage of the proceedings. As distinguished from Federal practice, Illinois requires a pleader to set forth ultimate facts giving rise to the cause of action or defense for which relief is requested. (Board of Education of City of Chicago v. A, C & S, Inc. (1989), 131 Ill.2d 428, 137 Ill.Dec. 635, 546 N.E.2d 580.) However, the entire complaint may be examined to determine whether such ultimate facts are alleged. (People ex rel. Scott v. College Hills Corp. (1982), 91 Ill.2d 138, 61 Ill.Dec. 766, 435 N.E.2d 463.) As we have indicated, the first amended...