MOUNT VERNON - In a 2-1 split decision, the Fifth District Appellate Court in Mt. Vernon affirmed former Madison County Circuit Judge George Moran's decision to grant summary judgment in favor an eight-year-old boy injured while riding his bike."What duty, if any, does a landowner have to an eight-year-old minor on its property with respect to an open and obvious condition, a four[-]foot[-]high dirt pile, when it has notice that the minor has engaged in an activity involving that condition, riding his [bicycle] over the dirt pile, that has a risk of injury to the minor?"
In October 2001, Shelia Grant filed a personal injury complaint against South Roxana Dad's Club on behalf of her then eight-year-old son Zachary.
According to Grant, Zach rode his bicycle over a dirt pile on Dad's Club property as a means of deliberately becoming airborne on his bicycle -- a practice called "ramping."
Dad's Club is a nonprofit organization which operates a playground that is open to the public where children are allowed to play without adult supervision.
It also has a building on the property where bingo is played to raise money to maintain the property.
Grant claims that on Aug. 18, 1999, Zachary and three friends spent much of the day outside riding bikes so they could "ramp" at Dad's Club.
According to court documents, Zachary described "ramping" as riding a bicycle up one side of a curb, bump in the road or dirt pile, in order to become airborne on the other side.
Grant claims that there were two large dirt piles in the parking lot of Dad's Club with each pile being approximately four feet high. The dirt had been trucked in for use in a construction project several months earlier.
She claims Zachary lost control of his bicycle while using the dirt piles when his handlebars twisted causing him to fall, breaking his arm, which required two surgeries.
She claims the next day, Dad's Club removed the dirt pile by spreading the dirt around the property.
Grant claims Dad's Club acted negligently in leaving the dirt pile where it knew or should have known that children were playing and in failing to warn the children of the danger.
Dad's Club filed a motion for a summary judgment on Aug. 25, 2002, arguing that it did not owe Zachary a duty to remove the dirt pile or warn of the potential danger.
Dad's Club argued that the dirt pile was an open and obvious danger and Zachary was mature enough to appreciate the risk posed by ramping his bicycle on the dirt pile.
Dad's Club argued the injury he suffered was not foreseeable and therefore it had no duty to protect against it.
Dad's Club cited cases in which courts have found that the risk of falling from a height is a danger that children of Zachary's age and younger could appreciate.
It also pointed out that Zachary admitted in deposition testimony that he was aware he could fall while ramping his bicycle and that he had fallen while ramping his bicycle on previous occasions.
In response, Grant filed her own motion for summary judgment arguing that Dad's Club had actual knowledge that children, including Zachary, were riding their bicycles on the pile of dirt, thus defeating any claim that the injury was not foreseeable.
She argued that the park commissioner stated that he had seen children riding their bicycles on the dirt pile on two different occasions prior to Zachary's accident.
Moran agreed with Grant and allowed her motion for summary judgment on Dec. 17, 2003, ruling that while the pile of dirt itself was innocuous, it became a dangerous and defective condition when Dad's Club became aware on more than one occasion that young children were using it to ramp their bicycles.
Moran also ruled Dad's Club knew that the children, because of their immaturity, did not appreciate the risk involved, because it knew that its warnings of the danger would go unheeded and the expense involved in remedying the condition and guarding against injury was slight.
Dad's Club asked Moran to reconsider on Jan. 16, 2004, which was denied on Feb. 27, 2004.
Dad's Club then filed a motion for certification for leave to appeal pursuant to Supreme Court Rule 308(a) which Moran granted.
Moran certified the following question for the Fifth District to review:
Authoring the majority opinion for the court, Justice Melissa Chapman wrote, "The existence of a duty is a question of law."
"Duty is shaped by public policy considerations," Chapman wrote. "Whether the law will impose an obligation of reasonable conduct upon a defendant for the benefit of a plaintiff depends on the nature of the relationship."
Chapman said Dad's Club argued that any duty it might have owed Zachary was negated by the open and obvious nature of the risk.
"When a child is injured, however, courts recognize that it may be foreseeable that the child, due to immaturity, will not fully appreciate the risk involved in encountering what to an adult is an open and obvious danger," Chapman wrote.
"Nevertheless, there are some dangers that are so obvious that even a child can be expected to know to avoid them."
Chapman said those dangers include fire, water, and falling from heights but the test is whether a typical child who is old enough to be at large would lack the maturity to understand and appreciate the risk involved, therefore making it foreseeable that a typical child might be injured.
"Even assuming that the danger Zachary faced was one that an average child his age could be expected to understand and appreciate, this does not necessarily mean that Dad's Club had no duty to take precautions to prevent the harm," Chapman wrote.
Chapman also said Dad's Club's park commissioner knew that Zachary and other children his age were using the dirt pile to ramp their bicycles, and he anticipated that the boys, including Zachary, could be hurt.
Chapman wrote, "His exact words were 'I told them not to ride that [be]cause they could get hurt."'
She said that statement means that Dad's Club had actual knowledge that children were using the dirt pile in a dangerous manner.
"We reject the defendant's attempts to avoid liability outright by invoking the open-and-obvious-danger exception to duty," Chapman wrote. "The open-and-obvious-danger rule is not a substitute for an analysis of a defendant's duty under the circumstances of a case."
"In the face of the defendant's acknowledged anticipation of the risk to the children, including Zachary, we believe that Zachary's injuries were foreseeable."
Justice James Wexstten agreed with Chapman.
The late Justice Terrence Hopkins participated in oral arguments of the case and Wexstten was later substituted on the panel and read the briefs and listened to the audiotape of oral argument.
Justice Stephen Spomer did not agree with the majority and dissented with a written argument.
Spomer wrote, "I respectfully dissent, as the majority's decision contradicts long-standing Illinois Supreme Court precedent and misapplies the concept of 'foreseeability."'
"The majority cites to many cases as authority for the propositions it relies on in its analysis, but I believe that my colleagues take these propositions out of context and ignore their ultimate holdings," Spomer wrote.
"I would answer the certified question on appeal in the negative and reverse the order of the circuit court that granted a summary judgment for the plaintiff on the issue of liability."
Spomer said the majority's analysis and its resulting statement of the relevant legal test is flawed because, as a matter of established Illinois law, if a reasonable child should appreciate the risk, injury to the child is not foreseeable, a dangerous condition does not exist, and there is no duty.
"Even if an owner or occupier knows that children frequent his premises, he is not required to protect against the ever-present possibility that children will injure themselves on obvious or common conditions," Spomer wrote.
"This rule is founded on Illinois public policy that the responsibility for a child's safety lies primarily with its parents, whose duty it is to see that his behavior does not involve danger to himself.
"Nowhere in the majority's disposition is this public policy acknowledged.
"The majority's disposition of this matter essentially overrules long-standing Illinois law regarding the duties of owners and occupiers of premises.
"In addition, the circuit court's order granting a summary judgment in favor of the plaintiff on the issue of liability contradicts our jurisprudence regarding the propriety of a summary judgment in negligence cases."