dissenting:
The decedent, nine-year-old Andrea Christon, slipped at the waterfront, fell into the Kankakee River, and drowned. The majority attempts to justify summary disposition of this case by determining that because Andrea was the victim of an obvious danger, no duty was owed to her. I cannot agree with the majority that as a matter of law the defendant in this case owed no duty to plaintiff’s decedent.
Summary judgment is a drastic method of disposing of a case and should not be employed unless there is no issue of material fact and it is free from doubt that the moving party is entitled to judgment as a matter of law. (Murphy v. Urso (1981), 88 Ill. 2d 444, 463-64.) I believe that the question of whether the flooded river, which covered the sidewalk with several inches of murky water and concealed the drop-off from the sidewalk into the river, was “clearly within the category of obvious risks discussed in Corcoran” was a matter for a jury to decide. Similarly, whether Andrea appreciated the perils the waterfront presented and whether the flooded, silt-covered docks and sidewalk created a reasonably foreseeable risk of harm (the test for assessing liability) were also factual determinations which should have been left to a jury.
It is true that a body of water is generally held not to constitute a concealed, dangerous condition. It is also true, however, that a body of water may become dangerous when joined with other instrumentalities or surroundings. (Pasierb v. Hanover Park Park District (1981), 103 Ill. App. 3d 806.) In Pasierb, a lightly frozen creek in a park that was concealed by a layer of snow which made it impossible to discern the location of the creek was found to be a risk not the type which children would be expected to appreciate. Similarly, the facts before this court presented a concealed danger — a waterfront with a very shallow area of water adjacent to a much deeper area, with a slippery line of demarcation between the two which was impossible to discern beneath the murky water. The risks involved in a concealed drop-off into deep river water near a public park are not the type which children generally would be expected to recognize and appreciate. I do not agree that a nine-year-old can necessarily appreciate the fact that rivers may have steep drop-offs or the fact that muddy water along a riverbank may conceal silt-slickened sidewalks which end without warning. I do not think it is obvious that if you wade in ankle-deep water at the river’s edge that you will drown.
There were genuine issues of material fact in this case which should have precluded the entry of summary judgment. Triers of fact should have determined whether the defendant was negligent, for the defendant knew the flooded waterfront was a danger and that children played at the waterfront, yet did nothing to prevent them from playing there or to warn them of the danger of playing there. On the basis of the pleadings and affidavits, construed most strictly against the defendant, a jury could have concluded that the flooded waterfront at the boat club posed a reasonably foreseeable risk of harm to children. Summary judgment was therefore improperly granted.
Accordingly, I dissent.