dissenting:
I dissent. In reaching its conclusion that count V of plaintiff’s complaint did not state a cause of action against the defendant Village, the majority has “bootstrapped” dictum from Mieher v. Brown, 54 Ill.2d 539, into authority for holding that the defendant cannot be liable to the plaintiff because it did not owe him the duty to exercise ordinary care in keeping its parkway free of the hazardous condition alleged in the complaint. The majority cite Mieher for the proposition that “A complaint for negligence must set out: the existence of a duty owed by the defendant to the plaintiff, a breach of that duty and an injury proximately resulting from the breach. (Mieher v. Brown, 54 Ill.2d 539, 541.) The character of the duty of the defendant which must be established was described in Prosser, Handbook of the Law of Torts (4th ed. 1971), section 53: ‘In other words, “duty” is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff ***.’ ” Mieher does not so hold, and additionally, it should be noted that Professor Prosser cites no authority for the statement quoted, and that examination of his analysis of the subject in the 4th edition, as well as the earlier editions, fails to support his conclusion. Mieher clearly recognizes that a duty, if owed, is owed generally and not to a particular plaintiff. In Mieher, after discussing Evans v. General Motors Corp., 359 F.2d 822, and Larsen v. General Motors Corp., 391 F.2d 495, the majority said: “The question in Larsen and Evans concerned the duty of the manufacturer to design a vehicle in which it was safe to ride. The question in our case involves the duty of the manufacturer to design a vehicle with which it is safe to collide.” (54 Ill.2d 539, at 543.) This does not, as the majority states, suggest that duty is owed to one class, rather than another, of persons who might suffer injury.
The majority here has managed to confuse the questions of duty and foreseeability, which are, and should be kept, separate and distinct. In Wintersteen v. National Cooperage and Woodenware Co., 361 Ill. 95, the court, defining duty, said “The contention is made by the defendant that it owed no duty of due care to the plaintiff, inasmuch as there was no contract between the plaintiff and the defendant. It is axiomatic that every person owes a duty to all persons to exercise ordinary care to guard against any injury which may naturally flow as a reasonably probable and foreseeable consequence of his act, and the law is presumed to furnish a remedy for the redress of every wrong. This duty to exercise ordinary care to avoid injury to another does not depend upon contract, privity of interest or the proximity of relationship between the parties. It extends to remote and unknown persons.” 361 Ill. 95, at 103.
It is noted, too, that the majority relies on Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99. Even a cursory examination of the authorities since the decision of Palsgraf is sufficient to show that the modern enlightened view which presently prevails in most jurisdictions is that which was expressed by Judge Andrew in his dissent in Palsgraf:
“Everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. Such an act occurs. Not only is he wronged to whom harm might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone. There needs be duty due the one complaining but this is not a duty to a particular individual because as to him harm might be expected. Harm to someone being the natural result of the act, not only that one alone, but all those in fact injured may com plain. *** Unreasonable risk being taken, its consequences are not confined to those who might probably be hurt.” 248 N.Y. at 350-51, 162 N.E. at 103.
There is no question that a municipality owes the duty to exercise ordinary care to keep its streets, sidewalks and parkways safe for use by persons who are themselves in the exercise of ordinary care. (Storen v. City of Chicago, 373 Ill. 530; Brennan v. City of Streator, 256 Ill. 468; see also annotations at 61 A.L.R. 267 and 19 A.L.R.2d 1053.) If this were an action brought by a pedestrian who stumbled over the object upon which plaintiff’s leg was impaled, or if plaintiff, instead of being thrown from an automobile had rolled into the parkway while scuffling with another boy, it is unlikely that defendant would now contend that it was under no duty to remove the drain pipe.
I turn now to the question of foreseeability. The Illinois rule is that in order to impose liability on a tortfeasor it must be reasonably foreseeable to an ordinarily prudent person that injury will reasonably and probably result from his failure to exercise ordinary care, and it is not essential, in order to hold him liable for the injury which proximately results from his failure to exercise ordinary care, that he foresee either the precise injury that results therefrom or the manner in which it occurs. Neering v. Illinois Central R.R. Co., 383 Ill. 366; Wintersteen v. National Cooperage and Woodenware Co., 361 Ill. 95.
The majority, referring to duty, when it was obviously discussing foreseeability, said “The circumstance here of the plaintiff’s being thrown 30 feet upon the collision with a third person’s automobile and having his leg impaled upon the pipe was tragically bizarre and may be unique. We hold that the remote possibility of the occurrence did not give rise to a legal duty on the part of the Village to the plaintiff to provide against his injury.” That the occurrence was tragic, I agree; that it was neither bizarre nor unique is clearly shown in that the Restatement (Second) of Torts contains the following:
“A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who
(a) are traveling on the highway, or
(b) foreseeably deviate from it in the ordinary course of travel” (emphasis supplied; Restatement (Second) of Torts, sec. 368)
and that a number of analogous cases are collected in the appendix to the Restatement and at 14 A.L.R. 1397 and 159 A.L.R. 136. Nor need we look beyond this jurisdiction for persuasive authority. In Kubala v. Dudlow, 17 Ill. App. 2d 463, the court cited and applied the Restatement to a factual situation which involved the placing of posts near a highway where they were hazardous to persons unintentionally leaving the right of way.
Under legal principles clearly stated and long established, the question whether the defendant Village failed to exercise ordinary care in permitting the sharp, rusty, dangerous pipe to remain in the parkway was a question of fact, as were also the questions of whether it was reasonably foreseeable that failure so to do might cause injury and whether the failure to exercise ordinary care was the proximate cause, or one of the proximate causes, of plaintiff’s injury. The count directed against the defendant Village clearly stated a cause of action and I would affirm the judgment of the appellate court.