Hansen v. Goodyear Tire & Rubber Co.

551 N.E.2d 253, 194 Ill. App. 3d 351, 141 Ill. Dec. 260, 1990 Ill. App. LEXIS 169
CourtAppellate Court of Illinois
DecidedFebruary 8, 1990
Docket3-89-0252
StatusPublished
Cited by5 cases

This text of 551 N.E.2d 253 (Hansen 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
Hansen v. Goodyear Tire & Rubber Co., 551 N.E.2d 253, 194 Ill. App. 3d 351, 141 Ill. Dec. 260, 1990 Ill. App. LEXIS 169 (Ill. Ct. App. 1990).

Opinion

JUSTICE SCOTT

delivered the opinion of the court:

Plaintiff-appellant, Barbara Hansen, appeals from two orders entered by the trial court dated March 30, 1989, and April 27, 1989, respectively. In the March 30 order, the trial court granted summary judgment in favor of defendants-appellees, Goodyear Tire and Rubber Company, Montgomery Investment Company and City of Rock Falls. In the April 27 order, the trial court vacated its previous order of March 30, granted plaintiffs motion to file a third amended complaint, granted defendants’ respective oral motions to allow their prior motions for summary judgment to be directed towards plaintiffs third amended complaint and granted summary judgment in favor of all defendants against plaintiff for all relief sought in plaintiff’s third amended complaint.

Montgomery Investment Company (Montgomery) owned warehouses on the north and south sides of West First Street in Rock Falls, Illinois. The warehouses were generally known as building 6, located on the south side of West First Street, and buildings 2 and 3, located on the north side of the street. These buildings were leased to Goodyear Tire and Rubber Company (Goodyear).

Permanent fire escape ladders leading to the rooftops were attached to the warehouses on both sides of the street. In 1982, the ladder rungs began one foot from the ground; however, prior to plaintiff’s incident, the lowest rungs had been cut off such that they started roughly eight feet from the ground. The warehouses were connected by an enclosed catwalk crossing West First Street in generally a north-south direction. The rooftop of the catwalk was accessible from the rooftops of the warehouses and was essentially flat.

Utility poles carrying three uninsulated electrical wires, owned and maintained by the City of Rock Falls (Rock Falls), were located on the south side of West First Street next to building 6 and ran in an east-west direction crossing the catwalk roof at a vertical height of five feet. The three wires carried 7,200 volts of electricity, having been increased from 2,400 volts in 1986. The wires crossing the catwalk were downstream from where they branched to service building 6.

On May 9, 1986, at approximately 10 p.m., Barbara Hansen, age 16 years and 8 months, and three other minors trespassed onto the land, climbing the ladders to the roof of the buildings. They walked in a southerly direction on the catwalk roof going from building 2 and 3 to building 6. Plaintiff bumped into the electrical wires while crossing the catwalk, causing serious personal injury.

The question to be decided is whether the trial court erred in granting defendants’ respective motions for summary judgment. The trial court granted defendants’ summary judgment motions after considering the recent decision of Bonder v. Commonwealth Edison Co. (1988), 168 Ill. App. 3d 80, 522 N.E.2d 227, and In re Estate of Dickens (1987), 161 Ill. App. 3d 565, 515 N.E.2d 208, wherein the First District Appellate Court basically held that 14- and 15-year-old plaintiffs could be deemed to appreciate the dangers posed by electrical wires as a matter of law, and therefore, the defendants owed no duty to plaintiffs. Plaintiff herein argues that Bonder and Dickens do not apply for numerous reasons and that there are material questions of fact requiring resolution by trial.

Summary judgments are to be granted when
“the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).)

The trial court based its grant of summary judgment in favor of defendants on the notion that no defendant owed a duty to plaintiff because of obvious danger posed by the electrical lines. The question of. whether a duty exists is an issue of law to be determined by the court. (Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465; Barnes v. Washington (1973), 56 Ill. 2d 22, 305 N.E.2d 535.) Generally speaking, the owner or occupier of premises has no duty to exercise ordinary care to prevent injury to a trespasser but has a duty to refrain from willful or wanton misconduct. (Grimwood v. Tabor Grain Co. (1985), 130 Ill. App. 3d 708, 474 N.E.2d 920.) This rule applies equally to adults and infants with the exception of what is commonly referred to as the Kahn doctrine. In Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E. 2d 836, our supreme court discredited the attractive nuisance doctrine and determined that liability for a child’s injuries exists

“where the owner or person in possession [of the property] 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.)

Under the Kahn doctrine, it seems the status of the minor as a guest or trespasser is irrelevant. Nonetheless:

“[I]t has been held that obvious risks which children of a similar age and experience would be expected to appreciate create no duty to remedy the dangerous condition.” (Bonder v. Commonwealth Edison Co. (1988), 168 Ill. App. 3d 80, 82, 522 N.E.2d 227.)

The apparent rationale is that

“the law does not require the landowner or possessor of land to protect against the omnipresent possibility that children will injure themselves on obvious or common conditions.” (Newby v. Lake Zurich Community Unit, District 95 (1985), 136 Ill. App. 3d 92, 98-99, 482 N.E.2d 1061.

A landowner simply cannot be an absolute insurer.

Plaintiff in this case distinguishes between the respective duties owed by Goodyear and Montgomery, as landowner or possessor of land, and Rock Falls, asserting that the Kahn doctrine does not apply to Rock Falls since it was not an owner or possessor of land. Thus, plaintiff alleges that Rock Falls owed merely a duty of ordinary care to plaintiff.

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Bluebook (online)
551 N.E.2d 253, 194 Ill. App. 3d 351, 141 Ill. Dec. 260, 1990 Ill. App. LEXIS 169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hansen-v-goodyear-tire-rubber-co-illappct-1990.