delivered the opinion of the court:
The plaintiffs, Kris Bazos and her father and next friend, James Bazos, appeal from an order of the circuit court of Kane County dismissing their amended complaint against defendants, Donald and Joan Chouinard, for personal injuries suffered by Kris Bazos оn the defendants’ property.
The plaintiffs filed their amended complaint on September 19, 1978, consisting of two counts. In count I plaintiffs set forth that on September 29, 1968, the defendants had permitted a picnic table and bench to be plaсed in close proximity to a low extending limb of a tree; that they permitted numbers of minor children, including Kris Bazos, to play thereon and to jump from the table to the limb to swing; that the defendants knew or should have known that this dangerous activity had gone on for some period of time prior to the occurrence in question.
The complaint in paragraph eight set forth:
“That it then and there became the duty of the Defendants to exercise ordinary care in and about the management, use and control of said picnic tablе and bench to the end of preventing minors, including Plaintiff, from using said picnic table and bench to jump and swing from the tree limb in Defendant’s [sic] yard.”
The complaint set forth that on or about September 29, 1968, Kris Bazos, a 10-year-old, with the knowledge and permissiоn of the defendants was engaged in this activity and fell and fractured her arm. The complaint enumerated six acts of negligence, including the failure to remove the picnic table, the failure to exercise any supervision of the children’s activities, and the failure to prohibit the children from jumping from the picnic table to the tree limb.
Count II set forth the father’s claim for his daughter’s necessary medical expenses.
The defendants challenged the amended complaint by a motion to strike, stating that the amended complaint was insufficient in law and that it failed to allege any duty actionable under Illinois law. On May 6, 1980, the court granted said motion.
The issue presented for our consideration is whether the alleged failurе to supervise or prevent minor children from engaging in an allegedly dangerous play activity on their property violated a legal duty upon which an action for negligence may be based.
It is the position of the plaintiffs that they have alleged sufficient facts upon which to base the existence of a duty on the part of the defendants. The defendants state that there is no special obligation upon them to supervise the child’s play activity. They also contend that due to the plaintiff’s age she was able to appreciate the risks and dangers of her activities, and therefore the alleged dangerous condition provided no basis upon which they could be liable.
Kahn v. James Burton Co. (1955),
“It is recognized, 000 [that] 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.”
The import of the Kahn case was discussed by the supreme court in Corcoran v. Village of Libertyville (1978),
“As Kahn sets forth, a dangerous condition is not that which creates an unreasonable risk of harm to the general class of persons who might frequent the premises. It is one which is likely to cause injury tо the general class of children who, by reason of their immaturity, might be incapable of appreciating the risk involved. The essence of the Kahn principle is to impose a duty upon those owning or occupying land to remedy cоnditions which, although considered harmless to adults, are dangerous to children who forseeably wander onto the premises.
On the other hand, the Kahn principle should not be construed to impose a duty on owners or occupiers to rеmedy conditions the obvious risks of which children generally would be expected to appreciate and avoid. Even if an owner or occupier knows that children frequent his premises, he is not required to protect against the evеr-present possibility that children will injure themselves on obvious or common conditions.”
Corcoran, further at page 327, spoke approvingly of the language used in the Restatement (Second) of Torts §339, comment j, at 203 (1966):
“There are many dangеrs, 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 complaint before us, it was alleged that the defendants were aware that children habitually played on the picnic table and bench and jumped to the tree limb. Once becoming aware of this, defendants had the duty to exercise due carе to remedy any conditions which may have been dangerous or hazardous to them, or to otherwise protect them from such conditions. Kahn v. James Burton Co.; accord, Donehue v. Duvall (1968),
A question arises as to whether the picnic table аnd bench so placed constituted a dangerous condition and, if so, whether there were sufficient averments in the complaint which amounted to actionable negligence.
An instrumentality, though not in itself dangerous, may become so when joined with other nondangerous instrumentalities or surroundings. (Novak v. C. M. S. Builders & Developers (1980),
“However, the burden rests with the plaintiffs to allege sufficient relevant facts to desсribe the condition in order for the trial court to conclude that the condition exposes children to risks greater than those which normally attend their daily lives.” Corcoran, at 328.
In the case before us, there is nothing set forth which would raise an issue whether the picnic table and bench had become a dangerous condition by reason of their being placed next to a tree. An instrumentality or product does not become inherently dangerous merely because therе is an abuse of it, or it is used for a wrongful purpose. Donehue v. Duvall.
In the case of Smith v. Springman Lumber Co. (1963),
A further test in determining whether a condition is a dangerous condition is whether the situation or circumstances are likely to cause injury to an unsuspecting child who by reason of immaturity is incapable of appreciating the risks involved. (Corcoran v. Village of Libertyville.) Merkousko v. Janik (1973),
“For the reasons stated above, we hold that the danger, if any, which was created by the combination of the tree, the pile of dirt, and thе cement sidewalk was the simple danger of falling, which was or should have been obvious to a child of the plaintiff’s age and experience, and, therefore, under Kahn the amended complaint was properly dismissed for failure to state a cause of action.”
We conclude that there was nothing unsuspecting about the circumstances confronting the minor plaintiff before us. Being a child of the age of 10 she must have appreciated the risks of her activity and that she might fall. Kahn v. James Burton Co.; Corcoran v. Libertyville; Mer-kousko v. Janik.
The Novak case, which plaintiffs rely upon, took the position that wherein it was alleged that the excavation, mounds of dirt, and concrete foundation in combination, hаd the propensity to cause slipping, sliding and falling and that the minor plaintiff did fall into the excavation, the court could not say as a matter of law that the risk involved was incident to any common ditch or obvious depression which children genеrally would recognize. That case is inapposite to the case before us. Here, for reasons stated, the child would not be unsuspecting and should have appreciated the risk.
The plaintiffs point to a distinction in that the amendеd complaint sets forth that the activity was permitted by the defendants, that they knew or should have known of the activity and were negligent in not supervising the activity or preventing it. We deem these distinctions to be without merit.
There is no duty imposed of intimatе and constant supervision over the playtime activities of children. (Lance v. Senior (1967),
“This case differs from the present one in that it dealt with two parties bound in a landlord-tenant relationship. The duty of a landlоrd to the nontrespassing minor daughter of a tenant is certainly greater than that of a possessor of land to a minor trespasser such as the plaintiff in the instant case.”
The duty to supervise in each of the cases cited by the plaintiff is distinct from the case before us. The plaintiffs claim that the defendants, by having permitted this activity over a long period of time, would have an analogous duty to supervise, but offer no authority in support of their position.
Question may arise whethеr principles of ordinary negligence would apply. Assuming the minor plaintiff were accorded the highest status in common law, that of an invitee, then the only duty owed would be to maintain the premises in a reasonably safe condition and to wаrn of dangerous nonobvious hazards. (Corcoran v. Libertyville.) There the court concluded that it would be incongruous to hold that a condition that did not pose a risk to the minor child, would to him as an invitee. We conclude, therefore, that no common law action for negligence would lie.
The trial court properly granted the defendant’s motion to strike.
Judgment affirmed.