Hendricks v. Peabody Coal Co. - brief

Case brief: template

Case name:	Hendricks v. Peabody Coal Co.
Court:	Appellate Court of Illinois, First District, Second Division
Citation; Date:	115 Ill. App. 2d 35; 253 N.E.2d 56; 1969

PROCEDURAL HISTORY
Trial court:		Appeal court (for appeal cases only):
Plaintiff:	Hendrics, a minor	Appellant:
Defendant:	Peabody coal	Respondent:	Hendricks

Facts of the case:
The record discloses that on June 19, 1960, plaintiff, who was then 16 years and 5 1/2 months of age, was injured when he dove into a strip mine area that was filled with water, as a result of which he apparently broke his neck when his head hit the sand bottom. As a result of such injury, plaintiff is a quadriplegic and his disability is permanent. No questions of any trial errors are raised in this cause and our sole inquiry is to determine whether, under the facts before us, defendant owed a duty to plaintiff, and whether the determination of this cause was properly made an issue of fact for the jury. After the defendant had ceased its mining operations in the area in 1955, and within six months thereafter, the aperture filled with water from natural springs, rain water and snowfall, which resulted in clean, clear water and made it an excellent swimming place. The water was 35 to 50 feet deep in places. By reason of the contour of the mine, as soon as one moved a couple of feet from the shoreline, he was in deep water. It differed from a natural lake in that there was a sharp drop-off. The particular day in question, June 19, 1960, was a Sunday. Four carloads with 13 teenagers left a home in Kankakee. When the young people arrived at the north end it was too crowded to swim there, so they went to the east end of the water. A few of the boys started to dive from a three-to-four-foot bluff into the water. When plaintiff arrived at the scene, three of his companions were diving into the water from a bluff on the east side of the north end. On this day, as on previous occasions when plaintiff had been there (this was his fifth trip there), one swimmer after another made his dive, then came to the plateau shelf and climbed up it. The sand on the shelf was stirred up and visibility made it impossible to see the location of the shelf or the bottom under the water. ... Plaintiff ran and dived. He did not slip prior to his dive and the next thing plaintiff could remember he was laying on the bank. Other witnesses indicated that he had struck the sand at the bottom. One of his companions found him with his head partially imbedded in the sand and, with the help of others, pulled him out of the water. It was not until after the injury to plaintiff that defendant allowed police to come onto the premises and, thereafter, signs were also put up in the quarry. There was strong evidence that there were no signs prohibiting trespassers or warning of any danger prior to the time of the occurrence resulting in injury to plaintiff. There were also no fences or barricades of any kind anywhere nor were there any lifeguards or life preservers. Defendant contends that plaintiff failed to show that defendant violated any duty owed to him.... In the case before us, the children used the place not only for diving, picnicking and swimming, but for water skiing and fishing. Because of the nature of the swimming place with its quick drop-off approximately two feet from the shoreline, it involved far greater risk of death or serious bodily injury than if it was an ordinary lake with its gradual inclination. The jury could well have determined that the defendant could have foreseen the happening of the occurrence, in this case. In the case before us, on the basis of the record, we do not believe we would be justified in stating as a matter of law that the record did not authorize submission of this cause to the jury. Had a jury determined that plaintiff was not entitled to recover, this determination would have been equally binding upon plaintiff. Since, on the basis of the record, this became a jury question, its determination by the jury should not be disturbed by this court on review. The judgment of the Circuit Court of Cook County will, therefore, be affirmed. DISSENT: The majority opinion quotes from page 625 of the Kahn case to the effect that the true basis of liability is the foreseeability of harm to the children. "It is recognized, however, that an exception exists where the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children. In such cases there is a duty upon the owner or other person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. (Citation.) The element of attraction is significant only in so far as it indicates that the trespass should be anticipated, the true basis of liability being the foreseeability of harm to the child." (Emphasis added.) This testimony of the plaintiff indicates not only that he had discovered the condition which gave rise to his injury, but that he was well aware of the existence of the same and that he realized the risk involved, knowing that he had to dive over the ledge in order to safely complete his dive. By virtue of this knowledge the circumstances described in subsection (c) of said section 339 of the Restatement do not exist. There exists no question of fact concerning these circumstances for the jury to determine. As a matter of law, in the absence of the conditions enumerated in subsection (c), the duty to use reasonable care for the protection of the plaintiff did not exist. It is stated in Prosser on Torts, 3rd edition, page 381: "Since the one basic reason for a rule distinguishing trespassing children from trespassing adults is the inability of the child to protect himself, the courts have been quite firm in their insistence that if the child is fully aware of the condition, understands and appreciates the risk which it carries, and is quite able to avoid it, he stands in no better position than any adult with similar knowledge and understanding."

Remedy sought:

Court opinion (including key issues and arguments):
This is an appeal from a judgment of the Circuit Court of Cook County based upon a jury verdict against defendant, Peabody Coal Company, assessing damages to plaintiff in the sum of $ 200,000. The jury had also answered a special interrogatory finding that Earl Edward Hendricks, plaintiff, was not guilty of negligence which proximately contributed to his injuries. As the case comes before us, the question of contributory negligence is not involved in this appeal. The only issue presented is whether plaintiff made out a case sufficient to raise a jury question, or alternatively stated, whether defendant should have foreseen harm to children such as plaintiff from the nature and use being made of defendant's premises.

Disposition of case:
Affirmed

ECONOMIC ANALYSIS OF THE CASE