Knapp v. City of Decatur

513 N.E.2d 534, 160 Ill. App. 3d 498, 112 Ill. Dec. 120, 1987 Ill. App. LEXIS 3131
CourtAppellate Court of Illinois
DecidedSeptember 3, 1987
Docket4-87-0078
StatusPublished
Cited by20 cases

This text of 513 N.E.2d 534 (Knapp v. City of Decatur) 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
Knapp v. City of Decatur, 513 N.E.2d 534, 160 Ill. App. 3d 498, 112 Ill. Dec. 120, 1987 Ill. App. LEXIS 3131 (Ill. Ct. App. 1987).

Opinion

JUSTICE McCULLOUGH

delivered the opinion of the court:

Jeremy Knapp (Jeremy) sustained injuries when he fell from a sandpile at a construction site in Decatur, Illinois, May 1, 1984. His mother, Sharon Rangos (Rangos), brought this action against the city of Decatur (city), Goodmar, Inc. (Goodmar), and Otto Baum & Sons, Inc. (Baum). The circuit court of Macon County orally granted defendants’ motions to dismiss plaintiffs’ amended complaint for failure to state a cause of action on November 7, 1986. Plaintiffs appealed. We are asked to decide issues relating to jurisdiction and whether the trial court’s dismissal was error.

On May 1, 1984, at or about 7 p.m., Jeremy, then six years of age, was injured while playing on a four-foot high pile of sand at a construction site located near the intersection of Wood and Taylor streets in Decatur. Rangos filed a six-count complaint February 28, 1986, in Macon County circuit court, alleging one count of negligence each against the city, Goodmar, and Baum. Three additional counts alleged Rangos’ expenses pursuant to the family expense statute. Ill. Rev. Stat. 1983, ch. 40, par. 1015.

Plaintiffs’ complaint alleged as follows: the city allowed the sand-pile to be placed on or adjacent to its property at the intersection of Wood and Taylor streets in Decatur within 100 feet of an elementary school; the city had a duty of reasonable care in the maintenance and condition of its property and to protect the general public, including children, from injury; the sandpile was placed adjacent to and above concrete curbing and a hard brick road surface, creating an unreasonably dangerous condition for children; the city knew or should have known that children played on the sandpile; the city had actual and constructive notice of the unreasonably dangerous condition to correct it. As a direct and proximate result of the acts of negligence, Jeremy sustained injuries when he fell to the curb and road surface while playing with other children on the sandpile. Counts III and V, directed to the construction firms Goodmar and Baum, respectively, were essentially the same as count I.

The city and Goodmar filed motions to dismiss the counts against them. Both motions claimed plaintiffs failed to establish a legal duty, stating that from the face of the complaint, the sandpile and surrounding features were not unreasonably dangerous, but obvious.

The circuit court allowed the motions to dismiss on May 19, 1986. The court’s docket entry states: “Arguments heard. Authority reviewed. Defendant’s [sic] motion to dismiss allowed. Plaintiff’s [sic] complaint dismissed with leave granted to file first amended complaint on or before 21 days. Clerk of the Court directed to forward copy of docket entry to counsel.” However, the amended complaint was not filed until November 6, 1986, leave having been granted by the court on that date.

The complaint’s allegation that the sandpile created an unreasonably dangerous condition was changed in the amended complaint to state that the sandpile, when placed adjacent to and above the curb and road surface “was open to traffic and was over four feet from top to hard brick surface.” Plaintiffs added a new paragraph alleging that the sandpile “had been recently deposited in the aforesaid location and therefore was unstable, loose and sloped toward said brick road surface.” The amended complaint was in all other aspects identical to the original.

Motions to dismiss filed by defendants claimed the amended complaint failed to allege a duty. The motions to dismiss were granted November 7. The docket entry reads: “Arguments having been heard on Motions to Dismiss, finding plaintiff has failed to state a cause of action. Plaintiff’s complaint dismissed. Cause ordered stricken.”

On December 2, 1986, plaintiffs filed a “Motion for Findings.” Plaintiffs requested the court to indicate (1) whether the plaintiffs’ motion for leave to file an amended complaint was granted; (2) whether plaintiffs’ first-amended complaint was filed; (3) whether the complaint or amended complaint was dismissed; and (4) whether the cause was dismissed with or without prejudice.

A hearing on the motion was held January 15, 1987. The court’s docket entry for that date shows: “Parties present by counsel. Cause called for hearing on motion for findings. Arguments heard. Finding leave was granted to file amended complaint and that arguments heard were addressed to that amended complaint. Finding the cause was dismissed with prejudice.”

Plaintiffs filed their notice of appeal February 2, 1987. Appeal was taken “from that portion of the court’s order granting the Defendant’s [sic] Motion to Dismiss Plaintiffs’ First Amended Complaint with prejudice.”

Our initial inquiry concerns whether we have jurisdiction to hear this appeal. Plaintiffs contend the motion for findings constituted a post-judgment motion requesting modification of the November 7, 1986, order. Defendants maintain the motion was not a proper post-judgment motion, thus rendering this appeal untimely. This case again illustrates the difficulties encountered by counsel when the ruling below fails to clearly state the basis for judgment. Sizer v. Lotus Grain & Coal Co. (1979), 70 Ill. App. 3d 739, 388 N.E.2d 1274.

Section 2 — 1203 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1203) provides that within 30 days after the entry of judgment any party may file a “motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief.” Supreme Court Rule 303(a)(1) (107 Ill. 2d R. 303(a)(1)) specifies that in cases where a timely post-trial motion “directed against the judgment” is filed, the notice of appeal must be filed within 30 days after the entry of the order disposing of the last pending post-trial motion. The supreme court has held that the motion must request one or more of the kinds of relief authorized by section 2— 1203 (former section 68.3) of the Code. Fultz v. Haugan (1971), 49 Ill. 2d 131, 135, 305 N.E.2d 873, 876.

Defendants rely on Lewis v. Loyola University (1986), 149 Ill. App. 3d 88, 500 N.E.2d 47, to support their position that the motion for findings was not directed against the judgment. In Lewis, defendant appealed judgments in plaintiff’s favor. Plaintiff then filed a motion for findings of fact and conclusions of law which stated: “ ‘Plaintiff accepts the judgment of [the circuit court] and is willing to abide by the terms and conditions of the judgment order.’ ” (149 Ill. App. 3d 88, 92, 500 N.E.2d 47, 49.) On appeal, plaintiff argued the appellate court lacked jurisdiction because the defendant’s notices of appeal were filed prior to the disposition of the plaintiff’s post-trial motion. The reviewing court concluded the motion was not directed against the judgment and was not a post-trial motion. The appeal was properly before the court.

Defendants cite Sizer v. Lotus Grain & Coal Co. (1979), 70 Ill. App.

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Bluebook (online)
513 N.E.2d 534, 160 Ill. App. 3d 498, 112 Ill. Dec. 120, 1987 Ill. App. LEXIS 3131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knapp-v-city-of-decatur-illappct-1987.