Campbell v. Haiges

504 N.E.2d 200, 152 Ill. App. 3d 246, 105 Ill. Dec. 331, 1987 Ill. App. LEXIS 2013
CourtAppellate Court of Illinois
DecidedFebruary 5, 1987
Docket2-86-0358
StatusPublished
Cited by12 cases

This text of 504 N.E.2d 200 (Campbell v. Haiges) 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
Campbell v. Haiges, 504 N.E.2d 200, 152 Ill. App. 3d 246, 105 Ill. Dec. 331, 1987 Ill. App. LEXIS 2013 (Ill. Ct. App. 1987).

Opinion

JUSTICE HOPF

delivered the opinion of the court:

Plaintiff, Jacob Campbell, appeals the order of the circuit court of McHenry County granting summary judgment as to count I of his complaint in favor of defendants William and Diane Haiges, and dismissing count II as to defendants Mr. and Mrs. Michael Gibbs.

Plaintiff, a minor child suing by his mother, Marie Donnellan, filed his complaint on April 19, 1985. The complaint was subsequently amended several times, with the final version being filed February 24, 1986. The trial court granted the Haiges’ motion for summary judgment and the Gibbs’ motion to dismiss with prejudice on March 25, 1986, and plaintiff appeals. The complaint alleges in relevant part that on May 22, 1981, plaintiff was severely injured while playing on property owned by the Gibbses when he was attacked and mauled by the Haiges’ child, along with the Gibbs’ child. The complaint further alleges that the child had been entrusted to the care of the Gibbses, who had been operating an unlicensed baby-sitting service in their home.

As to the Haiges, the complaint alleges that they were negligent in one or more of the following ways:

“a. Failed to exercise reasonable care so as to control their minor child from so conducting itself as to create an unreasonable risk of bodily harm to others.

b. Neglected to control and supervise minor children of tender years, playing on property owned or controlled by them.

c. Neglected to supervise and control their own children of tender years.

d. Allowed and encouraged their children to play unsupervised and uncontrolled.

e. Allowed and encouraged others in general to engage in uncontrolled and unsupervised play.

f. Neglected to prevent their children from attacking and injuring Plaintiff and failed to come to the aid of Plaintiff when he was being attacked.

g. Knowing of minor child’s special education problems and tendency for extreme violence, failed to take measures to protect the health and lives of other children.

h. Knowing of minor child’s special education problems and tendency for extreme violence, allowed said child to be cared for by an individual or individuals who are not trained or licensed to care for children, including children with special education problems.

i. Knowing of minor child’s special education problems and tendency for extreme violence, Defendants failed to seek or obtain care for their child in a controlled, supervised and regulated environment.”

The complaint then alleges that the Haiges knew or had reason to know that they had the ability to control their child and that they knew or should have known of the necessity and opportunity to exercise this control.

On appeal, the plaintiff argues that his complaint states a cause of action against the Haiges under the principles of parental liability set forth in section 316 of the Restatement of Torts (Restatement (Second) of Torts sec. 316 (1965)), as well as under “traditional duty analysis,” or under the theory of negligent performances of a voluntary undertaking. We cannot agree.

A party is entitled to entry of summary judgment in his favor when the pleadings, depositions, and affidavits on file show that there is no genuine issue as to any material fact. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005(c).) In reviewing the trial court’s entry of summary judgment, the function of the reviewing court is to determine whether the trial court correctly ruled that no genuine issue of material fact has been raised, and if none was raised, whether the court correctly entered judgment for the moving party as a matter of law. (Comtrade, Inc. v. First National Bank (1986), 146 Ill. App. 3d 1069, 1072-73, 497 N.E.2d 527.) Even where a complaint or answer purports to raise issues of fact, if the issues are not further supported by affidavits, depositions, or admissions, summary judgment may be appropriate, and if the movant supplies facts which, if uncontradicted, would entitle him to judgment as a matter of law, the opponent cannot rely upon his own complaint or answer to raise genuine issues of material fact. (Garde v. Country Life Insurance Co. (1986), 147 Ill. App. 3d 1023, 1029, 498 N.E.2d 292.) In the present case, the defendants included with their motion for summary judgment their affidavit, which stated that both parents had been at work at the time of the alleged incident and the child had been left with Mrs. Gibbs, who had been their son’s baby-sitter on prior occasions.

The general rule in Illinois is that the parents are not liable for the torts of their minor child merely because of the parent-child relationship. (White v. Seitz (1930), 342 Ill. 266, 271, 174 N.E. 371; Wintercorn v. Rybicki (1979), 78 Ill. App. 3d 179, 182, 397 N.E.2d 485.) Courts of this State have, however, adopted an exception to the general rule as espoused by section 316 of the Restatement (Restatement (Second) of Torts sec. 316 (1965)). The requirements for establishing liability under this section are that the parent knows or has reason to know that he has the ability to control his child and knows or should know of the necessity and opportunity for exercising such control. (Duncan v. Rzonca (1985), 133 Ill. App. 3d 184, 199, 478 N.E.2d 603.) In the present case, the simplest answer to plaintiffs complaint is that the Haiges did not have the ability to control their child because they were both at work at the time of the alleged attack. (See Cooper v. Meyer (1977), 50 Ill. App. 3d 69, 72, 365 N.E.2d 201.) This fact is established by the Haiges’ affidavit attached to their motion for summary judgment and is not contradicted by the allegations of the complaint. Therefore, no issue of material fact exists regarding this matter.

Plaintiff argues, however, that since the Haiges were aware of their son’s learning disabilities “and tendency for extreme violence,” they had the duty to protect third parties by placing the child in the care of someone who is specially trained to deal with such problems and could protect the public from the child’s violent attacks. The problem with this argument is that the complaint does not allege any facts which show that the Haiges were on notice that their child might commit such a violent act.

In order to hold the parent liable for the child’s acts, a complaint must allege specific instances of prior conduct sufficient to put the parents on notice that the act complained of was likely to occur. In Duncan v. Rzonca (1985), 133 Ill. App. 3d 184, 478 N.E.2d 603, a policeman was injured in an automobile accident while responding to a burglar alarm at a bank. The alarm was a false one, having been triggered by the three-year-old son of a bank patron.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Johnson v. Johnson
898 N.E.2d 145 (Appellate Court of Illinois, 2008)
Dinsmore-Poff v. Alvord
972 P.2d 978 (Alaska Supreme Court, 1999)
Dennison v. Prior
623 N.E.2d 951 (Appellate Court of Illinois, 1993)
Cnota v. Palatine Area Football Ass'n
592 N.E.2d 196 (Appellate Court of Illinois, 1992)
Barth v. Massa
558 N.E.2d 528 (Appellate Court of Illinois, 1990)
Kennedy v. FIRST NATIONAL BANK OF MATTOON
551 N.E.2d 1002 (Appellate Court of Illinois, 1990)
Basler v. Webb
544 N.E.2d 60 (Appellate Court of Illinois, 1989)
Smith v. George
534 N.E.2d 224 (Appellate Court of Illinois, 1989)
Allstate Insurance v. Pruitt
532 N.E.2d 401 (Appellate Court of Illinois, 1988)
Kosrow v. Smith
514 N.E.2d 1016 (Appellate Court of Illinois, 1987)
OLD SECOND NAT'L BANK OF AURORA v. Aurora Township
509 N.E.2d 692 (Appellate Court of Illinois, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
504 N.E.2d 200, 152 Ill. App. 3d 246, 105 Ill. Dec. 331, 1987 Ill. App. LEXIS 2013, Counsel Stack Legal Research, https://law.counselstack.com/opinion/campbell-v-haiges-illappct-1987.