Booth v. Goodyear Tire & Rubber Co.

587 N.E.2d 9, 224 Ill. App. 3d 720, 167 Ill. Dec. 127, 1992 Ill. App. LEXIS 102
CourtAppellate Court of Illinois
DecidedJanuary 27, 1992
Docket3-91-0293
StatusPublished
Cited by6 cases

This text of 587 N.E.2d 9 (Booth v. Goodyear Tire & Rubber Co.) 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
Booth v. Goodyear Tire & Rubber Co., 587 N.E.2d 9, 224 Ill. App. 3d 720, 167 Ill. Dec. 127, 1992 Ill. App. LEXIS 102 (Ill. Ct. App. 1992).

Opinion

JUSTICE McCUSKEY

delivered the opinion of the court:

Plaintiff, George H. Booth, a minor, by his father and next friend, Frank Booth, brought an action to recover damages for injuries sustained when he came in contact with electric power lines. At the time of the accident, plaintiff was trespassing on property occupied by defendant, Goodyear Tire and Rubber Company (Goodyear), and owned by defendant, Montgomery Investment Company (Montgomery). The power lines were owned and maintained by defendant, City of Rock Falls (the City). The trial court granted defendants’ motions to dismiss plaintiff’s third amended complaint. The plaintiff appeals. The issue presented is whether defendants owed a duty of ordinary care to a trespassing and allegedly “mentally disabled” 13-year-old. We affirm the dismissal of plaintiff’s complaint.

Montgomery owned warehouses on the north and south sides of West First Street in Rock Falls, Illinois. The buildings were leased to Goodyear. Metal ladders were attached on the West First Street sides of the buildings. The rungs of the ladders began one foot above street level and extended to the rooftops of the warehouses.

The warehouses were connected by an enclosed catwalk which spanned West First Street. The rooftop of the catwalk was accessible from the rooftops of the warehouses. Six uninsulated electric power lines, running parallel to West First Street near the south warehouse, passed over the roof of the catwalk at a vertical clearance of five feet. The three southernmost lines were deenergized. The remaining, energized lines allegedly did not service the property or buildings owned by Montgomery and occupied by Goodyear.

At approximately 1 p.m. on August 29, 1982, plaintiff was severely injured when he came in contact with one of the energized lines as he walked in a northerly direction on the rooftop of the enclosed catwalk. Plaintiff was 13 years 7 months old on the date of the accident. Plaintiff’s complaint alleged that he was “mentally disabled.”

Plaintiff filed suit against the defendants alleging negligence and willful and wanton conduct in the ownership, maintenance, and operation of the buildings and power lines. Counts I through IV of the third amended complaint were directed against Montgomery and Goodyear. Plaintiff asserted in counts I and III that Montgomery and Goodyear owed trespassing children a duty of reasonable care under the negligence theory developed in Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836. Counts II and IV alleged that Montgomery and Goodyear owed a duty to trespassers to refrain from willfully or wantonly causing injury by creating or allowing to exist an inherently dangerous condition on the premises. Count V sounded in negligence against the City.

Defendants filed motions attacking the pleading pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615). Defendants argued that they owed no duty to plaintiff as a matter of law because the power lines constituted an obvious danger. The trial court agreed. The trial court rejected the plaintiff’s contention that his alleged “mental disabplity]” exempted him from the line of cases which hold that children of his age are expected to appreciate and avoid the risks associated with power lines. On appeal, plaintiff contends that the trial court erred in relieving defendants of liability. We disagree.

In determining the propriety of the dismissal of a complaint, we must accept all properly pleaded facts as true. We are concerned only with the question of law presented by the pleadings. The question of duty — the legal obligation imposed upon one for the benefit of another — is a question of law to be determined by the court. Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 554-55, 328 N.E.2d 538, 539-40.

Our supreme court in Kahn created a narrow exception to the general rule that owners and occupiers of land are under no duty to trespassers to keep their premises in any particular state or condition to promote the safety of trespassers, whether they be minors or adults. For trespassing children, the court in Kahn rejected the traditional concept of the attractive nuisance doctrine and instead adopted a test based on the foreseeability of harm to the child. The court held that the landowner or person in possession and control of the premises is liable for the injuries sustained by children when (1) the injury is caused by a dangerous condition on the property, and (2) the owner or person in possession of the property knew or should have known that young people habitually frequent the area. Kahn, 5 Ill. 2d at 625, 126 N.E.2d at 842.

The rule developed by Kahn and its progeny is that an owner or person in possession of property may be liable for the harm occurring to children if the plaintiff shows that:

(1) the defendant knew or should have known that young children habitually frequented the premises;

(2) a dangerous condition existed on the land;

(3) the dangerous condition was likely to injure children because of their inability to appreciate the risk involved; and

(4) the burden of remedying the condition was slight compared to the risk involved.

Kahn, 5 Ill. 2d at 625, 126 N.E.2d at 836; Stevens v. Riley (1991), 219 Ill. App. 3d 823, 829, 580 N.E.2d 160, 164.

However, we must not lose sight of a threshold requirement before we can apply the Kahn test. The threshold inquiry is whether the plaintiff has established the existence of a dangerous condition on the property. A dangerous condition is one which is likely to cause injury to children who, by reason of their immaturity, might be incapable of appreciating the risk involved. However, if the condition involves an obvious risk which children generally would be expected to appreciate and avoid, the landowner is under no duty to remedy the condition. (Stevens, 219 Ill. App. 3d at 829-30, 580 N.E.2d at 164; Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 326, 383 N.E.2d 177, 180.) Even if an owner or occupier knows that children frequent the premises, he is not required to guard against the possibility that children will injure themselves when exposed to obvious or common conditions. Corcoran, 73 Ill. 2d at 326, 383 N.E.2d at 180.

The facts of the instant appeal are nearly identical to those presented to this court in Hansen v. Goodyear Tire & Rubber Co. (1990), 194 Ill. App. 3d 351, 551 N.E.2d 253. The accidents occurred at the same location and involved the same power lines. The only differences between the two incidents are (1) the plaintiff in Hansen was 16 years old; (2) the accident in Hansen occurred after sunset; and (3) the bottom rung of the ladder in Hansen had been shortened from one foot above street level to eight feet above ground level.

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Bluebook (online)
587 N.E.2d 9, 224 Ill. App. 3d 720, 167 Ill. Dec. 127, 1992 Ill. App. LEXIS 102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/booth-v-goodyear-tire-rubber-co-illappct-1992.