RECREATION LAW UPDATE

By James C. Kozlowski, J.D.

Drowning Case Involves Duty To Make Known Specific Hidden Danger

In the case of Pasierb v. Hanover Park District, Ill. App., 431 N.E.2d 1218 (1982), a seven-year-old boy drowned in a snow covered creek in a park. The parents of the boy brought a wrongful death action against the park district alleging that "the condition [of the creek] was knowingly unsafe and defendant could have cured the unsafe condition either by posting warnings, providing a barrier, or cleaning the ground." At the time of the accident, the creek was covered by a thin sheet of ice over which a layer of snow had accumulated. The snow covered the creek and the ground so as to make it impossible to discern the location of the creek.

The park district characterized the creek as a "drainage ditch" and argued that "it had no duty to protect or warn children of the condition of its premises since the ditch covered with snow was an obvious, common condition the danger of which children were deemed to be aware." The trial court agreed and granted the park district's motion to dismiss the suit for failure to state a cause of action. Plaintiffs appealed.

On appeal, the court applied a principle of law enunciated in Kahn v. James Burton Co., 5 Ill. 2d 614, 126 N.E.2d 836 (1955): "Where an owner of land knows, or should know, that young children frequent the vicinity of a known defective structure or known dangerous agency existing on the land, the owner has a duty to remedy or otherwise protect children from injury resulting from it." According to the court, this duty to remedy dangerous conditions on the premises will depend on "whether the risks attendant to the conditions are obvious and ones which children generally would be expected to appreciate and avoid."

New Law Reporter To Focus on Recreation Injury in '84

Early in 1984, the National Recreation and Park Association will embark on a one year pilot project to publish the "Recreation and Parks Law Reporter". The Reporter will be a quarterly publication providing a description of recent court decisions (1977-present) on recreation and park issues. The initial year of the Reporter will focus on personal injury suits against recreation and parks agencies. Suits involving federal, state, county, municipal, and commercial recreation and park agencies will be featured.

To introduce the readership to this forthcoming law related publication, this month's column excerpts a report from Volume I of the Recreation and Parks Law Reporter. This report describes a law suit involving a drowning in a snow covered creek in a park. For further information concerning the Recreation and Parks Law Reporter contact: Kent. J. Blumenthal, National Recreation and Park Association, 3101 Park Center Drive. Alexandria, Virginia 22302, (703)820-4940.

Referring to the Restatement (Second) of Torts, an authoritative treatise on the law, the court found that many dangers under ordinary circumstances, such as those posed by fire, water, or high places, "may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed at large." Similarly, a ditch or obvious depression in the ground poses a risk of falling which children generally would be expected to appreciate. On the other hand, hidden defects may enhance the ordinary risk and present an unreasonable risk of injury to the unsuspecting child. In the opinion of the Illinois appeals court, the snow covered creek presented such a hazard.

[W]e believe that the complaint alleged a sufficiently dangerous condition to withstand a motion to dismiss. Plaintiff charged that a creek in the park, frozen over with a thin layer of ice, was completely concealed by a layer of snow which made it impossible to discern the location of the creek. We believe the risks involved in a completely concealed creek in a park are not the type "which children generally would be expected to recognize and appreciate."

The court also rejected any distinction between concealed dangers generated by a natural versus a man-made condition.

The touchstone of liability in the Kahn-type cases is not the distinction between natural or artificial but is instead the foreseeability of harm to children ... It is foreseeable that a child who plays in a park where a water-filled drainage ditch is hidden from view is likely to encounter the ditch unintentionally and suffer injury thereby.

The park district argued further that the parents in this instance should bear primary responsibility for failing to teach their child to appreciate dangerous conditions on the land. According to the court, such parental responsibility did not necessarily extend to hidden dangers.

Certainly, parents can teach children not to scale heights or play with fire or swim in bodies of water. But to have prevented the death of the child in this case, his parents would have been compelled to teach him that whenever he steps in a park there may be lurking, hidden from view, a creek or ditch underfoot. Even an adult, however, may recover from a landowner for failing to warn or make safe a hidden dangerous condition on the land which causes him injury.

Similarly, the court rejected the notion that the injury causing condition was an open and obvious danger associated with snow. While the slippery nature of snow and ice may pose an ordinary risk of falling, the danger of drowning would not be a foreseeable risk associated with snow.

In the present case, however, the danger exists not in the snow, wherever it may fall, but in the ditch filled with water which was hidden by the snow. Hence, unlike the slip-and-fall snow cases, the present case involves the particularized duty of making known the existence of a specific hidden danger on the land.

The park district finally argued that threat of liability would impose an unreasonable duty of care and burden of precaution, requiring the

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Illinois Parks and Recreation 26 November/December 1983

agency to make every body of water in the parks "boy-proof". The court disagreed, limiting such duty of care to those bodies of water fraught with hidden danger.

Nor is imposition of such a duty comparable to a duty to make all bodies of water "boy-proof", as defendant suggests. Where a body of water is visible, the danger of drowning is apparent to the child and therefore, the landowner need not entirely close or guard such bodies against a determined child knowingly gaining access . . . But the present case involves an unsuspecting child who could not avoid the ditch because it could not be seen. The correlative duty, therefore, is not to make the creek "boy-proof" but instead to make the existence and location of the creek known.

As a result, the court reversed the trial court's dismissal order in favor of the park district and remanded this case to the trial court "for further proceedings consistent with the holdings of this opinion."

Illinois Parks and Recreation 33 November/December 1983