Legal Opinions

Court ruling defines dangerous condition

By James C. Kozlowski, J.D.

In the case of Weber v. Village of Carol Stream, 472 N.E.2d 1203 (Ill. App. 2 Dist. 1984), plaintiff Mary Canfield Weber, administrator of the estate of George Canfield, sued the Village of Carol Stream (village) and Kaufman & Broad Homes, Inc. (K&B). The suit was filed after nine-year-old George Canfield drowned while retrieving a stick on an ice-covered retention pond in a residential subdivision owned by K&B. In her complaint, Weber alleged the following:

K&B knew, or should have known, that neighborhood children played within the immediate vicinity of the pond. On Dec. 19, 1980, while playing on the pond, the minor decedent [Canfield] slipped through the ice causing his death. K&B was negligent in failing to (1) maintain a fence around the pond in violation of State statutes and village ordinances, (2) post warning signs of the inherent danger of the pond and (3) prevent children from entering upon the pond.

[T]he village owed a duty to plaintiffs decedent [Canfield] because the pond was created as a result of an agreement between the village and K&B, and the village approved the design and placement of the pond. Alternatively, the village owed a duty because the pond existed within the village and it knew, or should have known, of the dangerous agency of the pond and the foreseeable risk to children residing and playing in the area.

The trial court granted summary judgment for the village and K&B on the basis that "the pond was not an inherently dangerous condition and, thus, no duty was owed to the minor decedent [Canfield]."

Weber appealed. The issue was "whether the trial court erred when it ruled that defendants owed no duty to plaintiff's decedent who fell through an ice-covered water retention pond located in a residential subdivision, alleged to owned, possessed and controlled by K&B."

An ice-covered pond represents an obvious risk of drowning which children would be expected to avoid.

As noted by the appeals court, the recent Illinois Supreme Court decision, Cope v. Doe, 102 Ill. 2d 278, 80 Ill. Dec. 40, 464 N.E.2d 1023 (1984), was "particularly instructive." In Cope, the State Supreme Court held that "a retention pond, partially covered with ice and with a large portion of open water clearly visible, was not a dangerous condition which presented a peril not appreciated by the seven-year-old decedent." Consequently, the Cope court found that the defendant "owed no duty" to the child who drowned.

As described by the appeals court, the following rule governs landowner liability when a child is injured on the premises:

[T]he customary principles of ordinary negligence must be applied to determine the liability of owners or parties in possession or control of premises upon which a child is injured . . . [A] duty which would not be imposed under ordinary negligence will be imposed where an owner or party in possession or control of premises knows or should know that children frequent the premises and if the cause of the child's injury was a dangerous condition on the premises.

It both these prerequisites are met, it is deemed that the harm to children is sufficiently foreseeable for the law to impel an owner or occupier of land to remedy the condition. . . .

[A] dangerous condition is one which is likely to cause injury to children generally who, by reason of their age and immaturity, would not be expected to comprehend and avoid the attendant risks. In such an instance, there is a duty to remedy the condition.

According to the appeals court, "there are many dangers, such as those of fire and water, or of falling from a height, which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed at large." In the opinion of the appeals court, the issue was, therefore, "whether a water retention pond covered with ice in a residential subdivision, on which plaintiff's decedent, a nine-year-old boy, was retrieving a stick and fell through the ice,

Illinois Parks and Recreation 35 January/February 1986

was a dangerous condition which children would not be expected to comprehend and avoid the attendant risks."

Applying these principles to the facts of the case, the appeals court found that "an ice-covered pond presents an obvious risk of drowning which children would be expected to appreciate and avoid."

A body of water is generally held not to constitute a concealed, dangerous condition, and partially ice-covered ponds are ordinary bodies of water which, as any other, present the risk of drowning. . . .

Like the danger of water, an ice-covered pond is such a danger which, under ordinary circumstances, may reasonably be expected to be fully understood and appreciated by children of an age to be allowed at large. Children are expected to appreciate the possible hazards associated with water and should know that the same dangers accompany ice, which is the frozen form of water.

A condition is dangerous when it is likely to injure children who cannot understand or avoid the risks.

As a result, the appeals court concluded that "the trial court properly granted summary judgment for defendants where it determined as a matter of law that the condition was not dangerous." The appeals court, therefore, affirmed the trial court's summary judgment in favor of defendants K&B and the village.

ABOUT THE AUTHOR: James Kozlowski, an attorney in Springfield, VA, is the author of the Recreation and Parks Law Reporter. He holds a masters degree in leisure studies from the University of Illinois.

Illinois Parks and Recreation 36 January/February 1986