Stevens v. Riley

580 N.E.2d 160, 219 Ill. App. 3d 823, 162 Ill. Dec. 534, 1991 Ill. App. LEXIS 1606
CourtAppellate Court of Illinois
DecidedSeptember 19, 1991
Docket2-90-1438
StatusPublished
Cited by18 cases

This text of 580 N.E.2d 160 (Stevens v. Riley) 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
Stevens v. Riley, 580 N.E.2d 160, 219 Ill. App. 3d 823, 162 Ill. Dec. 534, 1991 Ill. App. LEXIS 1606 (Ill. Ct. App. 1991).

Opinion

JUSTICE INGLIS

delivered the opinion of the court:

Plaintiffs, Michelle Stevens, a minor, by John Stevens her father and next friend, and John Stevens and Elizabeth Stevens, individually, filed an action against defendants, Robert and Brenda Riley, along with other defendants, alleging that the Rileys’ negligent maintenance of their residential property resulted in severe injury to Michelle Stevens when she fell into a body of water located on their property. The trial court granted the Rileys’ motion for summary judgment and dismissed all claims against them; the other defendants to the action are not parties to this appeal. Plaintiffs timely appeal, contending that the trial court erred in granting summary judgment. We affirm.

On May 20, 1987, plaintiffs filed suit naming the Rileys as defendants in counts III and IV of the complaint. Those counts were amended several times. Plaintiffs alleged that on May 20, 1985, Michelle was injured when she fell into a man-made retention pond behind defendants’ home (this body of water is also referred to as a creek). Michelle, who was then Ylxk months old, suffered severe and permanent brain injury.

At the time of the incident, plaintiffs lived in the same subdivision as the Riley defendants. Brenda Riley ran a licensed day-care center in her home which Michelle Stevens attended Monday through Friday. In addition, the Rileys’ 14-year-old daughter, Janet, watched Michelle on Saturdays at the plaintiffs’ home. On the day of Michelle’s injury, Brenda Riley cared for Michelle in the earlier part of the day, until John Stevens returned from a dentist’s appointment and picked up his daughter.

Later that day, at about 7 p.m., John Stevens brought Michelle with him to the Rileys’ house for a social visit. Robert Riley was washing his car, and the two men conversed while Michelle played in the driveway by the car. About 10 minutes later, Elizabeth Stevens arrived home from work and crossed the street to join her family in front of the Riley home. Brenda Riley then came out of the house and talked with Elizabeth.

The Rileys’ daughter, Janet, arrived home with a friend, Diana, and went in the front door. The Rileys’ son, Bob, was already inside the house along with the family dog, Mandy. According to Elizabeth, Michelle followed the girls into the house; however, Brenda claims that she did not see Michelle go into the house and claims that nobody inside the house had seen her either. Plaintiffs contend that John Stevens subsequently asked where Michelle was and, according to Elizabeth, Brenda Riley replied that Michelle was in the house. Brenda claims that it was she who asked where Michelle was and that it was Elizabeth who stated that she went into the house with Janet. Brenda then went into the house and reported that Michelle was not inside.

Everyone began searching for Michelle. Plaintiffs claim that they searched the inside of the house again. John claimed that, while he was in the house, he noticed that the sliding glass doors leading out onto the deck were opened. John went out onto the deck, down the stairs, and into the backyard. Elizabeth stated that she saw John come down the stairs. However, according to Brenda, the sliding glass doors were closed when she checked the house and the deck had no stairs leading to the backyard because it was in the process of being rebuilt.

In any event, both couples then ran to the water behind the house. The water, which was either stagnant or slow moving, ran through the Rileys’ backyard and through the yards of their neighbors on both sides. The edge of the water on the Rileys’ property was surrounded by at least 10 to 15 feet of thick prairie grass or weeds which, at the time of the incident, stood approximately 18 inches to three feet high. The neighboring property to the east of defendants’ also had prairie grass bordering the water; however, the neighbors to the west had mowed their grass down to the bank and had fenced their property off from defendants’ property. The fence was a rail fence with chicken wire on the bottom of it. According to John, a 17-month-old child could not have negotiated her way through the fence. None of the property owners, including defendants, had fenced off the water from their property. It was alleged that the drop-off on defendants’ property to the water was steep and sudden.

John claimed that, when he did not find Michelle in the house, he ran straight back from the stairs of the deck to the creek and noticed that some of the weeds were irregular in that there were “places where it looked like somebody could have went [sic] through the weeds.” John then spotted Michelle, who was a little to his left and floating facedown in the water. He went into the water to retrieve her as did Elizabeth and Robert. The paramedics were subsequently called.

Brenda stated that after they found Michelle, she noticed that Mandy, the dog, was running around the backyard barking wildly and she was wet. Brenda claimed that Mandy hates water and did not recall Mandy ever going into the creek. However, Robert Riley stated that the dog would go into the creek “a few times off and on.” In addition, Elizabeth Stevens testified that, at the hospital, the Rileys’ daughter, Janet, told her that before Michelle was found, the dog came in the house through the sliding glass doors, barking, jumped up on the couch and was all wet. It was generally agreed that Mandy played with the children at the day-care center, including Michelle.

The day-care center was licensed by the State of Illinois in January 1984. In May 1985, Michelle was the youngest child at the center. She was HVz months old, and the other children ranged in ages from 21/s to hVz. According to Brenda Riley, the children in the daycare center did not play outside in May of 1985 because it was too cold. However, the children did play outside during the prior summer, and there was a swing set and sandbox located in the backyard approximately 25 feet to 45 feet from the creek. While the other children were allowed to play on the swing set, Michelle was not allowed to do so because of her age. Therefore, Brenda Riley would play with Michelle in the middle of the yard where she could still see the other children play.

Elizabeth Stevens testified that she occasionally visited Brenda while the day-care was in session. Sometimes she and Brenda would sit inside talking near the sliding glass doors when there were no adults outside with the children. Elizabeth admitted, however, that from the doors one could easily see the sandbox and the strip of weeds.

Other than when the day-care was in operation, children did not play on the Riley property back by the weeds. According to Brenda Riley, the children in the day-care were instructed not to step into the prairie grass. In addition, she claimed to have spoken with all the parents who enrolled their children in the day-care, warning them about the creek and asking them to talk to their children about it at home. Brenda did not recall any discussions with the plaintiffs about it. However, plaintiffs were made aware of the existence of the creek in the spring of 1981.

In their third amendment to counts III and IV of the complaint, plaintiffs allege that Michelle was lawfully upon the defendants’ property on May 20, 1985, as a licensee and with defendants’ actual knowledge and consent.

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Cite This Page — Counsel Stack

Bluebook (online)
580 N.E.2d 160, 219 Ill. App. 3d 823, 162 Ill. Dec. 534, 1991 Ill. App. LEXIS 1606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stevens-v-riley-illappct-1991.