Alop v. Edgewood Valley Community Ass'n

507 N.E.2d 19, 154 Ill. App. 3d 482, 107 Ill. Dec. 355, 1987 Ill. App. LEXIS 2323
CourtAppellate Court of Illinois
DecidedMarch 16, 1987
Docket86-0095
StatusPublished
Cited by42 cases

This text of 507 N.E.2d 19 (Alop v. Edgewood Valley Community Ass'n) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alop v. Edgewood Valley Community Ass'n, 507 N.E.2d 19, 154 Ill. App. 3d 482, 107 Ill. Dec. 355, 1987 Ill. App. LEXIS 2323 (Ill. Ct. App. 1987).

Opinion

JUSTICE BUCKLEY

delivered the opinion of the court:

On May 21, 1983, six-year-old Rebecca Alop (Rebecca), after attempting to turn around in the middle of a playground slide, fell onto an asphalt surface and, as a result, allegedly sustained a skull fracture and epidermal hematoma. An action was brought in the circuit court of Cook County by her parents (plaintiffs) individually and as natural guardians of the minor against, among others, Edgewood Valley Community Association, owner of the playground, and Suburban Condominium Management Corporation, manager of the premises (defendants). In their first amended complaint, plaintiffs alleged that defendants improperly installed the slide on a surface which did not provide sufficient cushioning. Summary judgment was entered in favor of defendants, and plaintiffs appeal contending that the trial court erred in ruling that defendants owed no duty to Rebecca to have placed- the slide on a softer surface than asphalt. For the following reasons, we affirm.

Summary judgment is properly granted if the pleadings, depositions, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (111. Rev. Stat. 1985, ch. 110, par. 2 — 1005(c); Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.) Summary judgment will not be reversed absent an abuse of discretion by the trial court such that the plaintiff’s right to fundamental justice is violated. (Fearon v. Mobil Joliet Refining Corp. (1984), 131 Ill. App. 3d 1, 475 N.E.2d 549.) In the present case, the trial judge acted properly within his discretion in granting defendants’ motion for summary judgment since there is no genuine issue of material fact and defendants are entitled to judgment as a matter of law. (See Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 538 (whether a duty exists is a question of law to be determined by the court).)

Our supreme court in Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836, held that the principles of ordinary negligence govern the liability of an owner or occupier of land upon which a child is injured, thus abolishing the attractive nuisance doctrine in Illinois. The significance of the Kahn decision is that it disregarded the notion that a dangerous condition had to lure children on to the premises and adopted instead the rule that foreseeability is the cornerstone by which liability is determined. (Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023; Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177.) Therefore, as a general rule, infants have no greater rights than do adults to go upon the lands of others, and their minority imposes no duty upon the owner to expect them to take precautions for their safety. Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836.

An exception to this rule is recognized where the owner knows or should know that young children frequent the area and the cause of the child’s injury is a dangerous condition on the land. (Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023; Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177.) A “dangerous condition” is one that is likely to cause injury to children who, by reason of their age and immaturity, are incapable of appreciating the attendant risks. (Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023; Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177.) If, however, the condition involves obvious risks that children generally would be expected to appreciate and avoid, there is no duty to remedy the condition. Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023; Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177.

Since it is undisputed in the present case that defendants knew children frequented the playground, the issue thus becomes whether the slide on the asphalt surface created a dangerous condition. Under the authority of Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177, Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023, Chimerofsky v. School District No. 63 (1970), 121 Ill. App. 2d 371, 257 N.E.2d 480, and Christon v. Kankakee Valley Boat Club (1987), 152 Ill. App. 3d 202, we conclude it did not because the risk the slide presented to children, and in particular to Rebecca, was an obvious one.

In Corcoran, a two-year-old child fell into a ditch in a park area near his home and suffered severe brain damage. The supreme court affirmed the dismissal of the lawsuit in that case, stating that after stripping the pleadings of their conclusional emphasis, they alleged “nothing more than the risk of falling into a ditch, a risk which is incident to any common ditch or obvious depression in the ground and one which children generally would be expected to recognize and appreciate.” (Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 328, 383 N.E.2d 177, 181.) In Cope, a seven-year-old child drowned in a retention pond. In affirming the appellate court’s reversal of the jury’s verdict in favor of plaintiff, the supreme court reasoned that the evidence did not support plaintiff’s contention that the retention pond presented perils that were not appreciated by plaintiff’s decedent.

In Christon, where a nine-year-old girl fell into the Kankakee River and drowned, the plaintiffs argued that summary judgment was improperly entered for the defendants because the source of risk was not the river, but the hidden, slippery strip of metal the defendants had placed next to it. In affirming the entry of summary judgment, the court concluded the real danger was the river itself which fell within the category of obvious risks discussed in Corcoran. And finally, in Chimerofsky, where a 3 ^-year-old sustained injuries as a result of falling from a playground slide, the appellate court affirmed the dismissal of the plaintiff’s complaint, holding that the risk that children will fall from a standard playground slide is not an unreasonable risk so as to impose a duty on the defendant to fence, guard, or supervise it.

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Bluebook (online)
507 N.E.2d 19, 154 Ill. App. 3d 482, 107 Ill. Dec. 355, 1987 Ill. App. LEXIS 2323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alop-v-edgewood-valley-community-assn-illappct-1987.