Smith Ex Rel. Smith v. Finis Holmes

606 N.E.2d 627, 239 Ill. App. 3d 184, 179 Ill. Dec. 795, 1992 Ill. App. LEXIS 1949
CourtAppellate Court of Illinois
DecidedDecember 3, 1992
Docket5-91-0302
StatusPublished
Cited by3 cases

This text of 606 N.E.2d 627 (Smith Ex Rel. Smith v. Finis Holmes) 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
Smith Ex Rel. Smith v. Finis Holmes, 606 N.E.2d 627, 239 Ill. App. 3d 184, 179 Ill. Dec. 795, 1992 Ill. App. LEXIS 1949 (Ill. Ct. App. 1992).

Opinion

JUSTICE H. LEWIS

delivered the opinion of the court:

The plaintiff, Alma Smith, individually and as mother and next friend of Tommy L. Smith, appeals the judgment of the trial court entered against her and in favor of the defendants herein on their motions for summary judgment. On April 23, 1988, Tommy Smith, who was 15 years old at the time, suffered serious brain damage as a result of oxygen deprivation that occurred while he played with the rope on a swing set. This incident occurred while Tommy Smith was visiting his friend Dwayne Bradley, who lived in an apartment complex owned by a number of the defendants. Other of the defendants were involved with maintenance upon the property, and the defendants Jim Shotton and Jim Shotton Construction Company were alleged to have manufactured the swing set. The plaintiff presents three issues for review: (1) “[w]hether the Trial Court erred in not applying Section 343 A of the Restatement of Torts Second to the facts of this case, and in holding that an open and obvious danger was a total bar to recovery”; (2) “[w]hether the defective swing set did not constitute such an open and obvious danger that could have been appreciated by an adolescent male”; and (3) whether the trial court erred in striking the affidavits of expert witnesses.

A number of discovery depositions accompany the defendants’ motions for summary judgment. They indicate that on Friday, April 22, 1988, Tommy Smith stayed overnight as a guest at Dwayne’s family’s apartment, as Tommy had done on numerous prior occasions. The following morning, while Dwayne was cleaning his room, Tommy was outside the apartment in the area of the playground talking with four girls, namely, Holly Lezu, Felecia Maddox, Jennifer Maddox, and Jennifer Short. A swing set stood in the area of the playground. Originally the swings had wooden seats, but the seats had broken, and none remained. The seats had been attached to the frame by ropes knotted to hold them in place. Apparently a child had tied together two ropes that had held one of the seats, and some of the children used the knotted loop to swing by placing a foot in it. One of these two ropes that were tied together was longer than the other, and a length of rope dangled from the knot. In the rope there were a number of knots, which children used in order to climb to the top of the swing set.

Holly Lezu, who was born on April 5, 1972, and at the age of 16 years at the time of the accident was the oldest of the four girls present, testified as follows in a discovery deposition taken on April 24, 1990:

“We walked to the playground, and we were talking. There was this set of monkey bars ***. Us three girls were standing there — or four girls. We were talking, and then he [Tommy] walked over to the swing set, and he put the rope around his neck, and he goes, ‘I’m going to hang myself.’ I said, ‘Tommy, that’s stupid. Don’t do it.’ He said, ‘I’m not. I’m just kidding. I’m just playing.’ So we said, ‘Okay.’ For a while he talked to us while he was standing there, and he could still touch the ground.
Q. Did he have the rope around his neck at the time?
A. Yes. And, we were still talking to him. Then about five minutes later, his back was toward us. His back had been turned toward us. Jennifer [Maddox] started getting scared— the little girl. She goes, T think he’s actually doing it.’ I go, ‘Doing what?’ She goes, T think he’s hanging himself.’ She goes, ‘He’s not joking.’ I go, ‘Yes, he is. Don’t worry about it.’ Me and her older sister, Felecia, told her not to worry about it. Me and Felecia told him, we said, ‘Tommy, you’re scaring us. Please quit.’ We sat there I guess for about thirty seconds, and then we go, ‘Tommy, you’re scaring us. We’re leaving.’
Q. Did he say anything to you?
A. No. He had his back toward us, so he didn’t say anything and we didn’t say anything. We go, ‘We’re leaving. We’re going in.’ So, we went into my apartment.
Q. Which is way up in the Mik-Mar area?
A. Right. We sat there for approximately fifteen to thirty seconds. I don’t know. Then we looked out the window, and he was still there. So, we called Dwayne and told Dwayne he was playing a joke on us, but he was still out there at the playground, and we asked him if he would go get him. When he did, then Dwayne got him off the rope. We ran outside, and by the time I got there, his [Dwayne’s] mom and dad were out there giving him CPR.”

Concerning the rope, Holly Lezu responded to questions as follows:

“Q. Did you actually see him take the rope and put it around his neck?
A. Yes, but I don’t recall him tying any knot or anything of the sort.
Q. Was the rope he put his head into already there created or did he have to create it himself?
A. I don’t think it was created. Not that I know of.
Q. You’re saying it wasn’t there beforehand?
A. I don’t think so.”

The witness recalled that prior to this accident a loop, as described above, already existed:

“[I]t was already made, and we used to put our foot in there and swing from it.
Q. Did your brother used to do that? Zach?
A. No. I did.
Q. What you’re saying is Tommy didn’t put his head through that portion?
A. No. He used the bottom of it.
Q. In other words, you’re saying he fashioned this portion he put his head in himself?
A. Yeah. He just — like when I saw him, he was putting the rope around his neck, but I turned away to talk to Jennifer Short, and when I turned back around, it was already there.
Q. Did you see him tie a knot or anything like that?
A. No.
Q. So when he actually completed it, you were looking—
A. Right. I was looking in the other direction.
Q. Now, you say after he did this, he was looking towards you, and he was making comments about he was going to hang himself?
A. (Witness nods.)
Q. How long was he facing you?
A. For about five minutes, because we talked.
Q. You were talking this whole time?
A. Uh-huh. Then he turned away, and I guess his back had been toward us for approximately four to five minutes, but we had talked to him a minute or two between there.

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Cite This Page — Counsel Stack

Bluebook (online)
606 N.E.2d 627, 239 Ill. App. 3d 184, 179 Ill. Dec. 795, 1992 Ill. App. LEXIS 1949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-ex-rel-smith-v-finis-holmes-illappct-1992.