*1 TRUST, MT. ZION STATE BANK AND Guardian of the Estate of Dale Beavers, Jr., Minor, Plaintiff-Appellant, a v. CONSOLIDATED COMMUNI-
CATIONS, INC., Defendant-Appellee.
Fifth District No. 5 — 93—0723 Opinion September Rehearing filed denied October 1994. 1994. Londrigan, Londrigan, Randle, P.C., Thomas F. Timothy Potter & and Londrigan, Londrigan Londrigan, J. Springfield, appellant. & both of for Kendall, Heyl, Royster, Allen, Peoria, Karen L. Voelker & and Velde, Springfield, appellee. Frederick P. JUSTICE opinion CHAPMAN delivered the of the court: child, child, spake child,
"When I was a I I understood as a thought I aas child ***.”I Corinthians 13:11. babysitter
If a a two-year-old left toddler in a alone bathroom water, if, whose tub was tragically, half-filled with child drowned, climbed into the tub people sympathize most would family, they with the child and the question would also have a the back of their minds. question What would that be? be, "Why two-year-old
It would not did that child climb into the tub?” question already because answer to that known: two- year-olds appreciate danger do not of even six inches of clear wa- family ter in a bathtub in the people home. All know this. asked, question "Why babysitter that is did the a two- leave year-old not the alone near tub of water?” examines conduct responsible person. emergency, there an did child but that of the Was over, something on the stove boil did another child in the house hurt herself, second, phone ring step just out for did the sitter And, just or did the sitter leave the child alone for no reason? if it is last, say, babysitter people then would not all "That did not duty.” fulfill his or her
If people appreciate danger all know that children do not the water, people babysitters and if all would conclude that who leave unguarded duties, children near tubs of water are derelict their why then do some courts opposite continue to reach the conclusion: that appreciate dangers such and that because of that appreciation part duty on the of the child there part is no of a presents defendant? application This case another instance of the the open-and-obvious-danger rule.
The Van Hoosers maintain an above-ground swimming pool, which picket gate is enclosed with a fence. The to the fence is secured a padlock. Plaintiff prior claims that to June Consoli- Communications, dated (Consolidated), Inc. entered onto the Van and, Hooser property without consent or other authority, lawful telephone utility erected a pedestal immediately adjacent to the Van Hoosers’ fence. 9, 1991, six-year-old
On June Beavers, Jr., playing Dale was next door to the Van Hoosers. stepped upon utility Dale pedestal the to scale gain the fence and access to the pool. Van Hoosers’ Dale apparently damage sustained irreversible brain and ais total-care patient in the home of parents. his alleged
Plaintiff that duty Consolidated breached its of reason- able erecting care utility pedestal the next to the fence and thereby allowing children years gain of tender to pool. access to the The trial court found that duty defendant owed plaintiff to the based on the open-and-obvious-danger rule and dismissed the com- plaint. appeals. Plaintiff We reverse and remand. determining propriety complaint, of the dismissal of a we accept properly
must all pleaded facts as true. We are concerned (Fancil only with question presented by pleadings. law Q.S.E. Foods, 552, 554-55, Inc. 60 Ill. 2d 539- argues Plaintiff first improperly applied the trial court premises law of liability to this case because an owner or lawful occupier premises liability. land entitled to invoke the law Plaintiff contends that since authority the defendant had no to enter premises, protection Van Hooser it cannot claim the premises liability occupiers law affords to lawful owners and of land. duty a danger pool Defendant contends that it owes no because the open a and obvious and there should not be different standard nonowners. theoretically plane: resolve this case on a more basic
We open above-ground pool and obvious nature of an does not relieve de- care, duty ordinary deny duty a fendant of its to exercise and to such illogical unjust. in this case would be both and Why open-and-obvious-danger illogical applied is the reasons, first, the facts case? There are several let us of this rule, state the duty danger open "A that is defendant has no to warn about obvious,” and then examine it in some detail. ordinarily duty
Assuming that a defendant would have alleviate, warning dangerous guard against, or at least issue a about a condition, why should the be decreased as the condition becomes not and should dangerous open more or more and obvious? Would dangerous society expect just opposite rule of law: the more No, condition, say greater something do about it? obvious, courts, all danger open if the is so then some because it, knows that all plaintiffs should be aware of and if the defendant obvious, danger open it is so plaintiffs are aware of the because anyone reasonably cannot foresee that would then the defendant *3 hazard, reasonably not foreseeable encounter such a and since it is defendant, duty anything has no to do about it. for the the defendant straightforward, it has analysis simple and since This sounds (See validity. Cope v. Doe enough, often it must have some been said 1023; (1984), 278, Liber Village 102 Ill. 2d N.E.2d Corcoran v. 464 316, 177; (1978), Chicago 383 N.E.2d Yacoub v. Park tyville 73 Ill. 2d 685; 958, (1993), 618 N.E.2d Lerma v. App. District 248 Ill. 3d 567, (1993), App. 247 Ill. 3d 617 Blacktop Construction Co. Rockford (1992), App. Ill. 531; Co. 224 Goodyear v. Tire & Rubber N.E.2d Booth Transporta 720, 9; & North Western Engel Chicago 3d 587 N.E.2d v. 729; (1989), 522, lop Edge A App. 3d 542 N.E.2d tion Co. 186 Ill. 482, (1987), App. 154 Ill. 3d Valley Community Association wood 19.) wrong with it? N.E.2d What’s foreseeability on its head. What
First, safeguard of it stands the duty analysis? protect To the de- foreseeability in a is the function from likely to occur too remote to be from events that are fendant foreseeability is defensive use of standpoint. This the defendant’s strange, the is so The factual situation typically encountered. what small, courts conclude injury are so or chances of the occurrence such circumstances. impose a under it be unfair to that would situations, however, foreseeability- open-and-obvious-danger factor is switched from what the defendant could foresee to what danger, plaintiff open should foresee. If there is an and obvious obviously duty? potential injury; why defendant can foresee then no "Because,” plaintiff supporters say, of the rule "the too can foresee can, injury, plaintiff and if the then the defendant cannot plaintiff encountering danger.” conceive of a happens injured What plaintiff this framework when the first collapse? plaintiff such a condition? Does it not Once has been injured by any open danger, an encounter with then obvious injury does not such an particular from that condition become fore- does, seeable all for defendants? And if it and if the lack of foreseeability duty, was the sole factor that relieved defendants of then do not all defendants have a to take whatever action is necessary to alleviate the condition?
An question affirmative answer to this could have serious conse- quences society resources, terms of the inefficient allocation of but the economists in unduly the courtrooms need not become concerned question because the by including contained the solution language, if foreseeability "and the lack of was the sole factor.” (and Since the lack of foreseeability really was not the sole factor really rule), the basis of the open-and-obvious-danger there is no need impose an unnecessary onerous and upon burden defendants.
But if the foreseeability defendant’s lack of is not the basis for the open-and-obvious-danger rule, then what is? The true basis for rule was alluded to supreme court in Ward v. K mart (1990), Corp. 132, 136 Ill. 2d explored further Harnischfeger Corp. Rentals, v. Gleason Crane Inc. 223 Ill. App. Ward, supreme N.E.2d 166. In court noted: adoption
"Prior to this comparative negligence court’s of a 1[, formula in 886], Alvis v. Ribar 85 Ill. 2d made little difference principle whether the was treated as one of duty’ 'no contributory negligence. one of Under either (Ward, characterization the recovery.” result was the same: no at2d 554 N.E.2d at Harnischfeger stated that rule views the duty concept from the standpoint plaintiff’s conduct. As the Ward, during court noted in contributory the time that negligence complete recovery was a bar proving and the burden of freedom contributory negligence from plaintiff, was on the courts *4 could liability plaintiff’s reach the conclusion of no based on the inability prove contributory negligence. freedom from These liability may conclusions of no have eased courts into their conclu- duty, sions of no but as court has stated: merely invoking "Attempting dispose litigation by such impressive as 'known’ or 'obvious’ relative and characterizations assessing certainly adequate scope substitute for no defendant’s under the circumstances in accordance with the Ward, Ill. previously identified this court.” considerations 147-48, 230, citing Reese 2d at 554 N.E.2d at Kirk v. Michael Hospital & Medical Center
387. it is not that the defendant has position, To summarize our conditions; obviously dangerous it is that defen- to deal with duty may plaintiff’s voluntary dant’s breach of be relieved Although may known have danger. concept this encounter with circumstances, totally illogical validity certain it is some under under in Illinois. applied to children seven logic behind the To illustrate the lack categorical cases, it in the form of a rule in such we will examine (see (1989)), Aldisert, steps: syllogism Logic Lawyers for two
Step One dangerous. Major premise: people All know that X is pérson. premise: Minor Plaintiff is dangerous. X is Conclusion: Plaintiff knows Step Two dangerous Major X are barred premise: people All who know is injuries negligently personal if X is the recovery caused from for injuring condition. dangerous. premise: Plaintiff knows X is
Minor recovery negligently Plaintiff is barred from Conclusion: injuries injuring condition. personal if X was the caused logically may problems sound. There syllogisms Both these are may be knowledge by plaintiffs, there degree possessed with the by plaintiffs vis-a- degrees possessed awareness in the differences modify reject defendants, may reasons to and there be other vis itself, now, logical problem it we focus the rule but for coexisting conjunction another presents when is considered facts of this case: categorical syllogism applies to the years age not know do Major premise: people All under seven dangerous. X is Jr., years Beavers, person is a under seven premise: Dale
Minor age. dangerous. Beavers, Jr., X was does not know Dale Conclusion: legally syllogism is major premise of our last know that We (1 Blackstone, Com- of Blackstone W. before the time sound. From *453) conclusively presumed it has been present, to the mentaries
407 years that a contributorily negligent. child under seven old cannot be (Mort 21.) (1983), 391, 395, 18, v. Walter 98 Ill. 2d 457 N.E.2d This has (see been the law in Illinois Chicago, since at least 1886 St. Louis & (1886), Pittsburgh 572, 197); R.R. Co. v. Welsh 118 Ill. 9 N.E. it was changed by not o. adoption pure comparative Alois Ribar’s of (see negligence (1983), 391, 18; Mort v. Walter 98 Ill. 2d 457 N.E.2d Toney 399, 404, see also v. Mazariegos App. 519 1035, 1038), N.E.2d changed legislature’s adoption nor was it (735 (West of comparative negligence 1992); modified ILCS 5/2 —1116 Ward v. K Corp. mart 136 Ill. 2d 554 N.E.2d 228 (adoption comparative negligence has no effect on basic de plaintiff)). fendant owes to
We now have a conclusion that conflicts with the conclusion Step 1 of open-and-obvious-danger syllogism. problem What is the here? How do we logically syllogisms have these sound resulting in conflicting conclusions? The obviously major flaw lies in the premise Step syllogism, of the "All people dangerous.” know X is premise overbroad; much; is it claims rejects too it principles settled law; of Illinois ultimately and it imputes absolute knowledge of all dangers to presumed children who are incapable possessing knowl- edge any danger. major Does either premise of the last syllogism or its conclusion Beavers, Jr., mean that Dale guaranteed (1) recovery No, simply this case? means that he did not know X (2) dangerous, was that he is automatically and completely recovery. barred from
Note logic that the lack of open-and-obvious-danger of the applied to children under depend seven does not acceptance on analysis of the earlier of the open-and-obvious-danger rule as based upon plaintiff’s conduct rather than foreseeability. defendant’s lack of Even if the accepted rule, i.e., latter as the basis of the because no defendant could any plaintiff foresee that would encounter danger, such an obvious the conclusions will still conflict because it is seven, foreseeable that children under legally incapable who are seeing any danger, danger. Therefore, will encounter this under ei- ther the no-foreseeability or, submit, traditional basis we the true contributory-negligence-as-a-matter-of-law basis, logic compels us to conclude that the open-and-obvious-danger applied rule cannot be children under seven.
Ordinarily we would
opinion
point
conclude the
at
with a
this
aware, however,
reversal and remandment.
We are
that the
applied
court has
open-and-obvious-danger
rule to children under
(See
Doe,
Cope
1023; Corcoran,
seven.
102 Ill. 2d
Therefore,
Ill. 2d
we will not limit our examina
aphorism,
problem but will follow Holmes’
logic
tian to the
of the
(O.
logic:
experience”
it has been
"The life of the law has not been
(1923)),
Holmes,
proceed
to an examination
The Common Law 1
justice
open-and-obvious-danger rule in this case when
of the
of the
through
experience.
the lens of
viewed
assume,
defendant
part
analysis
we will
as the
this
our
nonowners,
maintains,
owners/occupiers
land and
such as the
Later,
examine
defendant,
equally.
we shall
should be treated
not be afforded
nonowner/occupiers
should
plaintiff’s contention
rule.
protection
rarely responsible for
early
landowners were
At
common law
general rule of no
trespassers,
exceptions to the
injuries to
created,
liability
injuries to
among
a rule of
liability were
them
*6
of a condition created
children which occurred as
result
trespassing
children. The rule
on their land and which attracted
or maintained
trespassing
to
children
regard
liability
the
of the landowner
with
to
(17
(1874), U.S.
R.R. Co. v. Stout
84
originated
City
in Sioux
& Pacific
Wall.) 657,
745,
injured
playing
while
L. Ed.
where a child was
21
it, the rule
that case and others like
a railroad turntable. From
with
case,
early
doctrine.” An
Minnesota
known as the "turntable
became
(1875),
207, 18 Am.
Paul R. Co.
21 Minn.
v. Milwaukee & St.
Keffe
393,
allured or enticed
theory that the child had been
Rep.
coined the
thus,
defendant;
by
by
created
the
premises
the condition
onto the
(1895),
born. Pekin v. McMahon
phrase "attractive nuisance” was
the
(1921),
141,
484;
City Chicago
v.
N.E.
see also Stedwell
154 Ill.
of
486,
tractive *** ingenuity can fancy, imagination and youthful in his [A]child plaything anything make a of almost and is attracted almost everything, only proper [and] the basis for in decision such cases dealing personal injuries customary to children are the rules ordinary negligence (Kahn, cases.” 5 Ill. at2d 841.) at
Kahn position dangerous abandoned the that a condition had to lure premises children onto the adopted instead the rule that foreseeability liability cornerstone which is determined. (Alop Edgewood Valley Community Association App. "[I]nfants, general rule, greater rights go upon have no *** adults,
land
minority
of others than
imposes
their
of itself
duty upon
occupier
expect
of land
prepare
them or
safety.
their
recognized, however,
[Citations.] It is
that an
exception exists
person
knows,
where the owner or
possession
or
know,
young
habitually
should
frequent
vicinity
of a
dangerous
defective structure
agency existing
land,
likely
which is
injury
to cause
they, by
to them because
reason of
immaturity,
their
incapable
are
appreciating
involved,
the risk
expense
and where the
remedying
or inconvenience of
slight compared
condition is
to the risk to the children. In such
duty upon
cases there is a
person
possession
owner or other
premises
control
remedy
exercise due care to
protect
condition or otherwise
injury
the children
resulting
from
added.) Kahn,
from
(Emphasis
it.”
The historical protection bases for the prop- afforded owners of erty been explored have elsewhere and need not be discussed in (See Bernard!, detail. Loss Occupier’s Land Posi- Preferred *7 Abrogation the Common Law Trespasser, tion— of Classifications of Invitee, Licensee, 13 (1969); St. Louis U. Harper, L.J. 449 5 F. F. (2d 1986).) Gray, James & O. Torts significant, however, ed. What is is society progressed has from the time when owners could do absolutely they what wanted with their property without responsibility might injured toward others who be upon property. the
Anyone testify they who has observed children can do not develop Although at the same everyone rate. has the benefit of having having children or opportunity the to observe children develop, there are numerous studies on the levels and rates of chil- growth. dren’s developmental-milestone theory Piaget, of Jean a child noted
development expert, provides insight: — the tasks are coordination years: major developmental
Birth-2 infant’s actions or motor activities — achievements previous 8-12 months: children use behavioral adding as the basis for new
primarily expanding repertoire achievements to their — by ends and means are differentiated
experimenting — through means discovery experimentation 12-18 months: of new — curiosity novelty-seeking and behavior — reasoning play developed comes into and is — play important — investigation develops continuous of one’s world years:
2-7
— as he sees it only the child knows the world — hours; “how” waking most of the play occupies tool for “why” adaptation becomes a primary
and — imaginary play important — objects, merge concepts space, the child cannot causality interrelationships into with a of time
concept — occurs beginning cognition first real — one idea at a time the child can think of — gain knowledge parts the child examines years: 7-11
whole — are more accurate perceptions — understanding physical is used for play
social world — begins childhood youth ends and years: 12-15
— systematic approach problems there is a — deduction logical implication there is — beyond present. individual thinks 29-33 Gallahue, Understanding Development Motor Children See (1982). a theory proponent requires method
The scientific if it can to test it to see and then proposition proposition to state the supported is not disproved. proposition When supported or proposition. tests, the tests or problem is a with either there (V. Energy Al- Science, Study Booth, A of Matter Physical rigor- normally susceptible to are not though legal propositions sciences, obtain a we can physical in the that can be used ous tests validity of the general idea of the
411 applied young by to they children the unfortunate fact that are repeatedly injured by open dangers. Why put and obvious are fences pools why parents Why around can’t relax at the beach? are gates put top Why parents child at the are staircases? constant Because, instance, attendance with children at wiener roasts? each importance Holmes’ realization of the experience in the life of the knowledge law is reflected in fully adults’ that children do not appreciate common, the risks of dangers. even these obvious spoke succinctly validity
Professor Prosser open- about the of the and-obvious-danger applied rule when to children:
"The arbitrary soundness of such children may rules as to what always expected be comprehend may open to question. to impressive children, number of attesting cases of dead their fail- appreciate risks, ure in fact to these is sufficient in itself to cast upon some validity Prosser, doubt assumption.” (1959). Children, Trespassing 47 Col.L. Rev. home, As we come closer to supreme we see the restricting court application of the rule and in coming fact abrogating close to it completely. "We conclude that to the extent may that the rule have held that the lawfully reasonable care occupier owed an owner or to those premises on his does not under circumstances extend
to conditions entrants, which are known or obvious to such that rule is not the law in this State. * * * *** [N]either explanations these justifies per se rule that
under no circumstances does the defendant’s of reasonable care extend to or of which the may conditions which 'open be labeled and obvious’ ” plaintiff general is in some sense 'aware.’ (Ward (Emphasis omitted.) added and v. K Corp. mart 132, 145-47, 229-30.) Ill. 2d Thus, court has removed the open-and-obvious-danger per se recovery bar to in all cases. ruling When this coupled with the supreme court’s holding in Kahn trespassing governed are to be ordinary negligence, rules of becomes a matter examining the facts of this case under these rules.
What are the facts in this case? An examination of the complaint, well-pied allegations whose required accept we are as true for purposes considering defendant’s section 2—615 motion to dismiss (Fancil Q.S.E. Foods, Inc. 60 Ill. 2d (West 539; 1992)), 735 ILCS plaintiff, reveals that 5/2 —615 six- year-old child, was enabled protective to overcome the barrier of the Van Hoosers’ fence because placed pedestal defendant its immediately alleged had no adjacent to the fence. Plaintiff also that defendant otherwise, legal right, by place pedestal easement or its next fence, pedestal property, the Van Hoosers’ that the did not serve clearly pool were playground equipment outdoor installed, Hoo pedestal at the time the was and that Van visible *9 pedestal the fence. gate locked Dale used the to scale sers’ was when circumstances, determining duty a exists under these In whether by consider the likelihood of supreme are directed the court to we foreseeability injury, magnitude of the burden of injury, the the consequences eliminating guarding against problem, the and the (Kirk Reese upon the defendant v. Michael placing that burden 387). (1987), 117 Ill. 2d Hospital & Medical Center (see Corp. may Harnischfeger factors to consider There be additional Rentals, App. 3d Inc. v. Gleason Crane Law, 166; Green, Colum. L. Rev. 1401 Foreseeability Negligence in II, (1961); Green, Cases: 29 Colum. L. Duty Negligence Problem in (1929); Theory Consumer Shapo, Representational A Rev. 255 Doctrine, Liability Product Legal Function and Protection: for (1974)), we will 1370-71 but Disappointment, 60 Va. L. Rev. the to the four factors delineated limit our consideration court. imposition the supports of these factors
An examination of each injury high, and its duty The likelihood of is of a in this case. obvious; a next to a fence that foreseeability fairly placing pedestal is pedestal to a child to use the pool is an invitation to small encloses opening an act as placement is not as blatant the fence. The climb subtle, stile, the same. be; but the effect is gate it is more the would fairly foreseeability are Therefore, injury and its the likelihood of against contrast, guarding magnitude of the burden of high. In the on the defen- consequences placing that burden injury and the not pedestal did even quite low. Since the appear dant would to be necessity to apparent property, there was serve the Van Hoosers’ discloses, it was fence, far the record and as as locate it next to their All of the reason. it next to the fence necessary place support duty, of a and this support imposition traditional factors injuries to nature of potentially serious strengthened pools in is considered. small children duty favoring imposition of a
Arrayed against the factors indicated, rule, as we have addition, we applicability Ward. its supreme court curtailed involving cases applicability its theoretical whether have to wonder demented that some meritorious. Assume water, heights, and fire is pond in the six-foot-deep digging a the summer spent individual grade playground, middle of a school placed and that he a few 20- flagpoles platforms foot-tall on them and ladders built with steps leading child-sized platforms. to the Assume that on the first day roaring of school he built 15 piled bonfires and marshmallows one, and sticks next to each and that he then sat back and waited for the children to come play. anyone out and Would contend that such an subject civil, criminal, individual would not be to at least if not penalties? not, Of course penalty, recognition and that aof egregiously had been conduct, breached such would be imposed though water, even heights, dangerous and fire were the agents. Why? Because it is not open and never has been the obvious nature dangerous of the conditions that has been the reason deny liability. Liability might ponds have been denied because were areas, located in rural because ubiquitous, trees were because quickly because, short, learn that fires burn — magnitude of guarding the burden of against danger and the con- sequences placing that burden weighed on defendant when against the likelihood and foreseeability injury did not warrant the imposition of a in those cases. Such may conclusions proper determinations of courts applying ordinary rules of *10 negligence, required by as Kahn v. James Burton Co. 5 111.2d but an absolute bar based on some theoretical appreciation of all dangers, known particularly by young children, is not.
Although defendant has "knowledge referred to of children old enough unattended,” to roam which suggest seems to a lack of parental supervision, we are not concerned parental here with duties. If a breach of involved, those duties is it can be examined in a third- party judging action. We are the defendant’s at this time. The court of Michigan problem examined this and stated: short, Justice,
"In majesty wisdom[,] all her and with all her permitted has been peer upon down standing this child at her solemnly say bar and himto that the pub- water-filledhole in the lic street in front of his home was of no concern If to him. penetrate damaged all, words his brain at and he makes bold to why, ask you answer is clear: danger. 'Because to there is No person reasonable anticipate you might could ever escape your from mother and run into the street and fall into the hole.’ straight All of space. this is from pure fantasy. outer It is It is unrelated to life requires on this earth. It no treatise on child development to years, tell us that a age child 8 months of is as inquisitive slippery hornet and as an Despite as eel. vigilance times, utmost he will at cooking, when the mother is or others, caring get-away. his Is the situation washing, make or frontier, though on the or safety in this as he lived as to his event society demand more for its jungle, does modern urban in the him, upon who is not even young? penalty visited Should fault, measures of normal exceed the well-known aware of his damage or death? It family it include brain discipline? Or should City Saginaw give, his.” Elbert v. our answer to 463, 480, 879, 887. Mich. 109 N.W.2d degree saying, "The credited with Dostoevsky has been (See entering prisons.” society judged by its in a can be civilization (1992).) How Dictionary Quotations 286 Quoted: A Respectfully society’s chil- way they treat judged by the will courts be much more Committee Child Labor New York’s National dren? In poems. published collection golf lie so near the mill
"The links every day almost That out, laboring look children can
The play.’T the men at And see fledgling the father-bird!
"No feeds the hen! No chicken feeds for the cat—
No kitten mouses glory is for men.
This Wisest, Strongest Race— We are the sung! may praise our Loud only animal alive young!"2 upon its That lives (2) (1)
(Untitled Charlotte Per- Clogharm and Sarah N. Poems Labor, National Child Gilman, at of Child kins Poems (1924).) Labor Committee and the brutal poem the first irony of
Although poignant both the labor, they of child at the evils second were directed imagery of the place when actually takes illustrative of what are both also relieve are used to remnants of the that a conclude to children. We responsibility defendants of their support its landowners society cannot continue civilized *11 of its children. bodies point, first plaintiff’s to returns us to landowners
The reference any continued rule has open-and-obvious-danger if the that even historical landowners, that fact is based regard efficacy to by the courts. protected special species of landowners treatment and, first, not warranted protection, that such Plaintiff contends allegedly nonowners, such as second, extended to should not be previous discussion of in this case. Our trespassing defendant conclude make it clear that we rule should open-and-obvious-danger open-and- protection landowners should not have a child under seven. We obvious-danger plaintiff might have protection limited it extend whatever certainly would not and Deibert v. Bauer Brothers to landowners after Ward offered 239 to other Construction Co. (4th 1971). Prosser, ed. Torts at 359 class. See W. § conclusion, extent (see (1) Deibert), illogical it is Ward and rule still exists Illinois (2) seven, unjust apply apply it to under it would be have a of this because the defendant does under the facts case afforded their negate protection not to that the Van Hoosers had (3) to nonowners. pool, and the rule should not be extended Reversed and remanded. GOLDENHERSH, specially concurring:
JUSTICE join majority opinion’s imposition I in the in this case. I however, join, opinion’s literary nonjurisprudential do not in the remarks. MAAG, specially concurring:
JUSTICE legal I concur in the Chap- result and the discussion in Justice man’s I opinion. express opinion on the matters discussed and quoted nonlegal which are in nature. Friend, al., Plaintiffs, BRASE, by Brase,
KYLE his Mother et and Next Joann (William LOEMPKER, Billeaud, v. WILLA D. Defendant J. Petitioner- Appellant; Country Companies Company, Respondent-Appellee). Insurance
Fifth District No. 5 — 93—0796 Opinion filed November 1994.