specially concurring:
I concur in the majority’s holding that the instant case must be remanded for a new trial based on the failure of the trial court to give the tendered comparative negligence instruction. However, I must disagree with the court’s discussion concerning two collateral issues.
The majority states that “[N]o instructions were given to the jury concerning the duty to warn of unseen dangers imposed by the law of Illinois upon adults who are responsible- for the safety of minors.” (202 Ill. App. 3d at 827.) However, ever since Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836, the liability of owners or parties in possession and control of premises upon which a child is injured has been determined with reference to the customary rules of ordinary negligence. (See generally Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177; Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023.) The fact that an adult is dealing with a child is part of the determination of what constitutes ordinary care under the circumstances. The issue of whether an adult should use greater care and vigilance where the safety of a minor is involved goes to the question of what constitutes ordinary care under the circumstances. It does not entail a different standard of care. I also note the Illinois Supreme Court Committee on Jury Instructions in Civil Cases recommends that no instruction be given on the care required for the safety of a child. (Illinois Pattern Jury Instructions, Civil, No. 10.07 (3d ed. 1990).) The majority’s reliance on Ford v. Wilson (1989), 184 Ill. App. 3d 374, 540 N.E.2d 1, is inapposite. Ford does not announce a contrary rule. The only issue in Ford was the sufficiency of the complaint on a motion to dismiss.
In addition, the majority implies that evidence of similar occurrences at the lake may be admissible without regard to whether it is offered as substantive evidence or as rebuttal. I do not find admission of subsequent occurrences as substantive evidence of negligence to be supported by the case law. The Illinois Supreme Court in Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 382 N.E.2d 1217, upheld the admission of evidence which showed that flasher lights at a railroad crossing failed on two subsequent occasions. The evidence was held properly admitted for the limited purpose of rebutting the testimony of the defendant’s expert “who opined that it was impossible for the flasher system to malfunction.” In the instant case, the evidence of other incidents was not proffered to rebut the testimony of the defense witnesses. They were asked only about their knowledge of incidents occurring prior to June 14, 1979. Both witnesses denied prior knowledge and the offer of proof did not rebut this testimony. In any event, whether on retrial it would be proper rebuttal would de-pend on the precise testimony the rebuttal evidence was intended to refute, as well as whether the plaintiff has established an adequate foundation showing the relevance of the proffered rebuttal evidence. The majority concedes that the exclusion of this evidence was not an abuse of discretion, and I have great difficulty in finding a different result should be reached on retrial.
In any event, I view the majority’s discussion of these two issues as nothing more than dicta and unnecessary to the disposition of this case.