*1 Objеctors argue county’s also that the property record system and numbering system However, violate their process rights. due we have already concluded that the county was in compliance substantial with requirements for numbering, mapping, recording and property. Objec- point alleged tors discrepancies out property in several record cards parcels of property unrelated to parcels at issue in this case. if Even these other property erroneous, cards were we do not conclude that they objectors’ would right affect heard, to be they nor would af- fect the justice substantial of the assessment of objectors’ property or (West 2000). the tax itself. See 35 ILCS Therefore, we 200/21—185 find no error here.
Objectors next contend that the weight trial court erred in the assigned to the testimony objectors’ appraiser. Objectors only make single general pages cite to 50 the appraiser’s testimony and tеll appraiser opined us that the fair open market value of space $1,650 in Jo County per Daviess acre. Their nothing repetition more than a of their earlier that Lake County Board requires Review open-space that all property must value, have the same assessed establishing without what that value is. unpersuaded, We are still and find no error we here. reasons,
For these the judgment of the circuit court of Jo Daviess County is affirmed.
Affirmed. GEOMETER, JJ., and
HUTCHINSON concur. al., Hoban, TIMOTHY еt RYAN Indiv. and as Next Friends of Minor, Counterdefendants, al., Plaintiffs and E. et ROBERT YARBROUGH Counterplaintiffs Third-Party Plaintiffs-Appellants Defendants and (Patricia Ryan, Third-Party Defendant-Appellee).
Second District No. 2 — 03—1333 February
Opinion filed 2005. *2 O’MALLEY,EJ., concurring part dissenting part. and City Attorney, Naperville, appellants. Stephanides, L. of for Paul Assistant Mulherin, Varehetto, EC., Wheaton, Rehfeldt, Stephen & of A. Rehfeldt appellee. opinion of the court: JUSTICE McLAREN delivered the (col- Yarbrough E. employee, and its Robert City Naperville The prejudice of their leсtively, City), appeal from the dismissal with Ryan. Ry- Patricia against Patricia third-party contribution involving grandson, Ryan, injured Nicholas an accident an’s was sued Yarbrough, parents and City truck driven Nicholas’s City complaints contribution defendants on Nicholas’s behalf. filed Patricia, baby- grandmother, who was against parents Nicholas’s City argues appeal, On sitting at the time of accident. Nicholas dismissing the amended contribution the trial court erred complaint, because the amended allеged sufficiently negligently supervised Patricia Nicholas gave when she Nicholas permission street, to skateboard in the in violation of certain City agree ordinances. We City with the and reverse the dismissal complaint. amended August 2000, Nicholas,
On who old, was then six years was riding a skateboard on a residential street in Naperville when he and a Naperville truck Yarbrough collided, driven causing Nicholas injuries. parents, Nicholas’s Timothy Ryan and Shannon Hoban-Ryan, City sued the behalf, on Nichоlas’s alleging Yarbrough acting was scope within the his City employment at the time of the accident and that he caused the by driving accident carelessly. City filed a against counterclaim for and, parents, Nicholas’s once they learned that caring Patricia Nicholas at the time of the accident, they filed a third-party complaint against for contribution original her as well. The was dismissed and the filed an complaint. amended
The City’s complaint alleged that, amendеd just before the ac- cident, gave Patricia permission to skateboard on the street. stated that on the skateboarding street violated two ordinances and specific that Nicholas’s actions skateboarding while violated City alleged several traffic laws. The that Patricia had a duty “to ordinary exercise and care safety caution for the of the minor *3 Plaintiff, Hoban, supervise Nicholas and to him so that he did not any violate laws.” Patricia complaint mоved to dismiss the under sec- (735 (West tion 2—615 of the Code of Civil Procedure ILCS 5/2—615 2000)), contending failed to plead negligent a claim for supervision by failing allege to that Patricia had requisite degree of control required by over Nicholas as section 316 of the Restatement (Second) (1965). of Torts. § of Torts 316 City responded that Patricia did have the to opportunity violating banning Nicholas from skateboarding ordinances in streets, specifically gave permission because she him to in skatеboard the street. The complaint ruling court dismissed the with prejudice, very that “the cases are clear in [sic] that there must be that immedi- vicinity regard ate where there can control in to be those acts *** negligence of that minor appeals, contending child.” The now sufficiently pleaded alleged that it negligence when it that gave she Nicholas in permission to skateboard the street and that in skateboarding the street is a of City violation ordinances. A grant comрlaint trial court should a motion to dismiss a under only allegations section 2—615 the Code when the in the complaint, plaintiff, fail light construed most favorable to the to
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“(a) Act, more 2 or in this where Except provided as otherwise injury arising the same subject liability in tort out of are persons death, right wrongful there a property, or the same person or not been them, though judgment has among even contribution (West 2000). 100/2(a) all of them.” 740 ILCS against or entered third-party that allege claim must well-pleaded A (West injured party. 740 ILCS in tort to the defendant hable 100/2 App. Ill. Buford, Co. v. 338 2000); Employees Insurance Government (2003). Here, alleges that liable in the 448, Patricia is 3d 456 negligence, cause of action for negligence tort of Nicholas. To state a that duty, breach of allege facts that establish must Kalousek, Ill. 3d duty, proximate Hough App. causation. See and (1996). 855, 860 establish alleges case facts that
The amended this A caretaker of а child has that Patricia to Nicholas. owed Kownacki, Ill. harm. Parks v. protect (1999). “was under complaint alleges that Nicholas allegation This establishes supervision the care and of Patricia.” supervise protect and Nicholas. See Patricia owed Nicholas Mathis, Insurance Co. v. Allstate alleges sufficient to establish complaint also facts
The amended supervise Nicholas. her to that Patricia breached “[immediately prior to the oc- complaint alleges The amended Ryan’s permission currence, Hoban asked Patricia Nicholas it is alleges also streets.” The public skateboard on had and that Patricia Naperville streets unlawful to skateboard past.” in the three times seen fall off his skateboard “two or City, these facts suf- light to the When most favorable viewed *4 gave when she unreasonably acted ficiently establish that Patricia Further, in the street. permission to ride his skateboard injured by he skate- alleges а truck when that Nicholas was to establish that Patri- This is sufficient boarded near intersection. Ac- injury. proximate cause of Nicholas’ alleged negligence cia’s was a 346
cordingly, the trial by court erred dismissing amended complaint for failure to state a cause of action.
Citing Torts, 316, section Patricia argues that she owed no “parents Nicholas because are not li- able for the torts of argument their children.” This recognize fails to alleges that the complaint Pаtricia, Nicholas, and not committed Thus, contrary contention, tort. to Patricia’s does not have exception establish an by to the rule enunciated section because it does apply not to this by case. cases cited Patricia are ap- plicable this case for same reason section 316 is not applicable. cited cases Patricia parent discuss whether a had a duty to protect a third person from his or her negligence. Here, child’s complaint alleges that negligent Patricia was in supervising Nicholas and that her negligence proximate awas cause of injuries. Nicholas’
We feel constrained to respond waiver; to the issue an issue not raised but the dissent. The fact that the cited argument 316 in section its appellate its brief does not constitute waiver other argument complaint sufficiently valid its stated cause of action outside the parameters of section 316. The City did not cite 316 as а basis for its claim in its complaint. Patricia first raised section in her motion to dismiss. discussed section response as a to Patricia’s motion. pointing Rather than out that section 316 of the Restatement awas herring, red City erroneously argued supported that section 316 its cause of action The City’s correctly contribution. failure to explain that section 316 does not apply does not constitute a waiver of arguments. all other valid It argument. constitutes nonmeritorious When rеviewing dismissing trial court’s a complaint, order we are charged reviewing with de novo to determine Oliveira, the plaintiffs allegations whether state a cause of action. Ill. 2d at 147-48. The term “de means that the novo” court reviews the matter if had anew—the same as the case not been heard before if and as no decision had been rendered previously. Tatara v. Peterson Service, Diving Thus, when we novo, review the matter de we are same not constrained to mаke the mistake the trial court made when it on an argu- based its decision ment possible that lacked merit. Not every argument is waived when properly one lacks merit. An of an otherwise preserved issue on appeal comply waived when it fails with (134 341) Supreme supreme Court Rule 2d R. or another court case, City’s arguments regarding rule. In this section 316 did not City’s attempt Supreme violate Court Rule 341 or other rule. The to reconcile section 316 with its does not constitute waiver *5 merеly rather, section 316 arguments; other valid of all argument regarding Nevertheless, excluding merit. lacks brief, in its and stated in its City sufficiently argued 316, the Therefore, against Patricia. in of action complaint, a cause error. was reversible prejudice of dismissal with judgment dissent. regarding the comment to make some We feel constrained following comprehend that the dissent fails baffling findWe bar, the case at “In the City’s in the first brief: contained sentence causing from step stop in Nick could alsо Third-Party Defendant himself to Nick to skateboard granting permission harm to City’s statement, conjunction with This in streets.” activity such city prohibiting claim that Patricia violated ordinance street, stated a allowing in the by intentionally Nicholas to skateboard independent of section 316. cause action in contribution statement that we have are also the dissent’s We baffled We have in 3d at 350. “conjured” duty a “novel tort law.” 355 of tort law nothing. long-held principle conjured We have restated duty grandchild his or her grandparent that a has a (the (1977) Gulledge, 51 Ill. Gulledge harm. See v. grandpar- question of whether court answered the affirmative are li- having temporary custody grandchild ents care and of minor injuries by the minor as a result of the able the minor for sustained desire to erase this grandparents’ ordinary negligence). The dissent’s charge truism and hold that a caretaker has no to her would appear tort It would the dissent eviscerate basic tenet of law. “in immunity persons created for and other loco parents confuses the However, abrogate hut immunity this does not parentis.” Curiously, the dissent fails merely party immunizes the from suit. person “in normally not deemed a acknowledge grandparent that a (1993) (the Cates, court 156 Ill. 2d parentis.” loco See Cates by “in immunity created loco exception another to the enunciated grandparents). children to sue parentis” that allows reversed, Page County Du judgment of the circuit court of proceedings. and the cause is remanded for further proceedings. remanded for further Reversed and HUTCHINSON, J., concurs. O’MALLEY,concurring and dis- part JUSTICE
PRESIDING senting part: by arguing, not whether the issue parties completely missed Nicholas, that, under section but rather
Patricia breached 316 of the Torts, she breached a to third from harming them. While will appreciate what the it, has done will be as surprised as Patricia find has ruled that a child grandmother can sue his for allowing go skateboarding. him to They surprised will both bе party mentioned, because neither has even let developed argument, alone regarding may whether a sue his grandmother under Finally, ruling these circumstances. this will arouse interest regarding reform, from both sides of the debate tort especially light of the fact that it comes about without so much as a request party from the that benefits from it.
A reviewing court should set aside principles waiver good provide just reason: “to result [or] to maintain a sound and body precedent.” uniform Dillon Hospital, v. Evanston *6 (2002). 483, 505 In exercising power the court’s to override consider- waiver, ations of “[proper] care should be litigants taken that the are deprived not of an opportunity present argument.” Raben, Hux v. (1967) 223, 38 Ill. 2d 225 (holding that, presented the situation there, appellate the err by considering arguments court did not not parties). raised the
The majority However, contends that no waiver has occurred. neither the I majority nor can point to discussion in the of briefs charge the person of of a child to that child—the foundation of any against contribution claim City Patricia. The has based its arguments entirely assumption on the that section 316 of the Restate- ment of Torts the provides major- relevant of care. The that, ity states novo, because our standard of review is de are not we constrained by ruling. the erroneous basis of the trial court’s 355 Ill. App. 3d at 346. The majority applications confuses two different of the argument doctrine An of waiver. is waived it is on brought ap- where peal sufficiently but the trial court record is not developed on the is- sue or sufficiently where the record is on developed the issue but the bring do not argument appeal. the That “the court reviews (355 346) the matter Ill. App. anew” 3d at does not mean that waiver longer applies. no This not court has hesitated to invoke waiver when See, conducting e.g., de novo review. Salte YMCA Metropolitan v. Chicago Foundation, 524, (2004); 3d App. 530 Wаitcus v. Vil- Gilberts, lage By invoking Ill. App. 105 not here, off majority opportunity argue waiver the has cut points the risky of law on which decided the case. This is even particularly is It developed where the law well clear. is inadvisable when, below, expand as the must the law to decide the discussed court matter. disregarding completely justifications majority’s
Another of sua that it raised deciding an issue and then of waiver principles correctly that section 316 explain City’s failure “[t]he sponte is argu- of all other valid waiver not constitute a does apply does not true, majority says, It as the 3d at 346. App. Ill. ments.” 355 arguments. not waive other argument does making a nonmeritorious arguments does make those failing to App. Ill. 3d at 346. But 341(e)(7) argued are (“[pjoints not Ill. 2d R. them. See 188 waive waived”). states, correctly explain did, fail majority The as why explain However, it also failed not why apply. section 316 does another party even mentioned apply. Neither other should statement, City suf- majority’s apply. possible Patricia, patently incor- ficiently argued against a cause of action application straightforward and obvious imagine a more rect. cannot waiver. doctrine of duty to Nicholas at of Patricia’s arrives its discussion 316,” that, regarding section “excluding by saying duty to Nicholas. sufficient on Patricia’s still made a However, excluding argument regarding App. Ill. 3d at 347. argument whatsoever. made no compre- I am unable to claims to be “baffled” “ City’s following sentence from the brief: Tn meaning hend the bar, stop in and Third-Party step the case at Defendant could also granting permission to Nick causing Nick harm to himself ” 3d at 347. I on the streets.’ See 355 skateboard that sentence is meaning quite readily comprehensible find the when context, read in its is: which (2000),] [312 Ill. relied Strang,
“The case of Lott court, actually sup- Third-Party in the trial upon Defendant Lott, Third-Party position. appellate In ports the Plaintiffs’ *7 following from the upon court relied the illustration of (Second) Restatement Torts: of target six-year-old shooting childis at a ‘Ais informed that his rifle, endangers in the with a in a manner which street .22 using A to take the rifle safety the of those the street. fails child, The child or take other action. away from the to B, subject leg. the A is unintentionally pedestrian, a shoots to B.’ liability to § found at 124 The court Torts of scenario, step stop in and parent can quoted that in the above the bar, Third-Party the causing
the child from harm. In the case at сausing harm step stop from to Defendant could also in and Nick on the permission to skateboard by granting himself not Nick (Emphasis original.) streets.” Thus, it readily apparent that the quoted by major- sentence the ity is in no way “exclusive” of section 316. On the contrary, part it of the i.e., made the City, its sec- argument. tion 316 shows, As the quote the even emphasized its reference to section 316. comprehend What cannot major- is what the ity to accomplish by seeks its misleading, quote. out-of-сontext As above, noted the parties quite will be upon reading aware this decision they both missed the issue. The will appreciate no doubt done, majority what the has but I doubt that the will be so really delusional as to think that it did it itself. tossing
After the aside doctrine of raise waiver to a new for issue parties, majority then on self-appointed moves to its next task: creating duty a novel in tort law without the of argument benefit either majority’s side. The rush to decide the relevant of standard care notably precipitous given the uncertain state of the law in the area. Illinois lacks case law on the issue of a child provider’s duty care to prevent the child from engaging risky activities. majority Gulledge, cites 51 Ill. App. in characterizing duty conjures it “long-held as a principle of tort App. law.” 355 Ill.
3d at In 347. Gulledge, plaintiff child injury suffered an when he fell under riding being operated a lawnmower 13-year-old his sister while visiting grandparents’ both were their Gulledge, residence. App. Ill. 3d at grandparents ordinary 973. The sued his negligence, grandparents and the moved to dismiss case based parental immunity the doctrines parentis. Gulledge, and in loco App. motion, Ill. 3d at granted 973. trial court appel- granted late court application interlocutory appeal child’s order to determine whether the grandparents enjoyed parental im- munity. Gulledge, 51 Ill. App. Gulledge 3d at 973-74. does deal provider with the of a child care a engaging child from activities; in risky solely quеstion, instead deals with the not relevant here, of grandparents/caretakers enjoy whether parental immunity. states that a “[a] caretaker of child has a protect child from App. harm.” 355 Ill. surely at 345. That is goes, as far as it get true but it does not at the troubling issues lurking care, here. To unearth its standard of had to turn Parks, protect holding parish case had Parks, parishioner against sexually priest. 3d at abusive 452. The attempt lay Parks court did not all of the facets of out carе, simply “duty but stated that the from harm certainly encompasses duty harming to refrain from and to restrain Parks, harming.” others within one’s control from 3d at 461. It did not need to problem address the more difficult the extent *8 might in activities that be engaging a from duty child of the risky. unreasonably be found to everything to do simply than
Clearly, something is other duty the provider A child care child from harm. reasonably keep the possible by sitting a child play eliminate most risks active conveniently can good is child set, no clаim that that but one will in front a television child keep a a overemphasizes A of care that care. standard By sug- behavior. overly risk-averse encourage harm will such from unqualified by any harm is gesting that the healthy development, child’s encouraging the competing concerns of exactly kind of incentive. the has created that of the doctrine of majority’s sweeping disregard Although the required us me, justice I interests of believe that the waiver troubles the City’s argument the to cоrrect step beyond to take a measured to dismiss. granting trial error in Patricia’s motion court’s obvious pleadings by attacked purpose requiring “The that defects be pleadings is to out the defects in the so that point [citation] motion complainant will to cure them before trial.” opportunity the have (1981); People Corp., Knox v. 88 Ill. 2d see also College Celotex (1943) (“a Shetler, Pope County ex rel. motion allege the defects pointing specifically which fails to facts out *** insufficient”). Thus, complained of is a trial court should grant correctly points to dismiss unless the motion out a motion complaint. critical defect in the observes, clearly As majority
Patricia’s motion failed do this. the heart of viable contribution claim the must be the al- legation showing of facts that Patricia liable to Nicholas for his concerning only by a injuries. Patricia cited authorities owed person caring child third supervise for that benefit of sufficiency partiеs. to dismiss thus failed to attack the Her motion missed the flaw in as claim contribution. The bought reasoning so indeed, into her — Nevertheless, pervaded completely appellate that its briefs are it. clear-cut, legal the error so we would not wander into uncharted dismissal. To do territory recognized if we the error and vacated the waiver, relaxation of the rules of require would measured majority. indulged rather than the wholesale abandonment sufficiently alleged It that Patricia may be that However, the properly breached even a standard of care. formulated parties developing had a aid the court in should have chance to policy implications. law in an area so laden with Had we vacated action, a cause of finding dismissal without stated remand. just could have done thing One more am unable comprehend how the *** can describe the preceding “[t]he sentences as dissent’s desire to hold that a caretaker has no to her charge [and thus] eviscerate a basic tenet of tort law.” Ill. 3d at 347. Even cursory read- ing of my dissent I express reveals that no desire to hold that *9 caretaker has no I charge. to her do not assert that an argument for such duty made; cannot I merely saying be am that the majority should not make the City, for the precluding thus responsive argument, and that we should not even address the issue properly until before us.
Although I concur that the trial court in granting erred dismiss, I motiоn to must dissent from the majority’s decision hold stated a cause of action. would have vacated the dismissal and ordered the trial court deny the motion to dismiss prejudice, without allowing thus properly frame the is- sue for the trial court and for us. al.,
LAMAR Plaintiffs-Appellants, WHITECO OUTDOOR CORPORATION et al., v. THE CITY Defendants-Appellees. OF WEST CHICAGO et —CLEAR OUTDOOR, INC., Company, CHANNEL Eller Media successor-in- f/k/a Kleiser, al., interest to Patrick Media as successor-in-interest to Foster et Plaintiffs-Appellants, CHICAGO, v. THE CITY OF WEST Defendant-
Appellee. 2—03—1392, Second District Nos. — 0575 cons. 2—04 Opinion February 8, Rehearing filed denied March 2005. 2005.