dissenting:
I respectfully dissent, as the majority’s decision contradicts longstanding Illinois Supreme Court precedent and misapplies the concept of “foreseeability.” The majority cites to many cases as authority for the propositions it relies on in its analysis, but I believe that my colleagues take these propositions out of context and ignore their ultimate holdings. For the reasons that follow, I would answer the certified question on appeal in the negative and reverse the order of the circuit court that granted a summary judgment for the plaintiff on the issue of liability.
Beginning with Corcoran v. Village of Libertyville, 73 Ill. 2d 316, 327 (1978), the majority recognizes that there are some dangers, such as fire, water, and falling from heights, that are so obvious that any child can be expected to know to avoid them. 381 Ill. App. 3d at 670. The majority then goes on to say that this is not the only issue in determining whether a duty exists, and it cites Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 116-17 (1995), for the proposition that “a court must also find that (1) a dangerous condition exists on the property, (2) it is reasonably foreseeable that children would be present on the premises, and (3) the risk of harm to children outweighs the burden of removing the danger.” (Emphasis added.) 381 Ill. App. 3d at 670. As explained below, the majority’s analysis of these two cases and its resulting statement of the relevant legal test is flawed because, as a matter of established Illinois law, if a reasonable child should appreciate the risk, injury to the child is not foreseeable, a dangerous condition does not exist, and there is no duty.
As reiterated in Mt. Zion State Bank & Trust, obvious dangers present no foreseeability of harm, and thus no duty. 169 Ill. 2d at 125. The Illinois Supreme Court in both Corcoran and Mt. Zion State Bank & Trust explained that in order for a duty to exist, the owner or occupier must know or have reason to know that children frequent the premises and that there is a dangerous condition on the property. Mt. Zion State Bank & Trust, 169 Ill. 2d at 120 (relying on Corcoran, 73 Ill. 2d at 326). Only if both of these prerequisites are satisfied is it deemed that harm is sufficiently foreseeable for the law to require an owner or occupier of land to remedy the condition. Mt. Zion State Bank & Trust, 169 Ill. 2d at 120, citing Corcoran, 73 Ill. 2d at 326. Thus, if children of the age and maturity of the injured child are able to appreciate the risk of harm, this factor negates the dangerous condition prong of foreseeability and ends the duty analysis. See Mt. Zion State Bank & Trust, 169 Ill. 2d at 120.
Both Corcoran and Mt. Zion State Bank & Trust unequivocally held that there is no duty on owners or occupiers to remedy conditions the obvious risks of which children generally would be expected to appreciate and avoid. Corcoran, 73 Ill. 2d at 326; Mt. Zion State Bank & Trust, 169 Ill. 2d at 124. Even if an owner or occupier knows that children frequent his premises, he is not required to protect against the ever-present possibility that children will injure themselves on obvious or common conditions. Corcoran, 73 Ill. 2d at 326. This rule is founded on Illinois public policy that “ ‘[t]he responsibility for a child’s safety lies primarily with its parents, whose duty it is to see that his behavior does not involve danger to himself.’ ” Corcoran, 73 Ill. 2d at 327, quoting Driscoll v. C. Rasmussen Corp., 35 Ill. 2d 74, 79 (1966). Nowhere in the majority’s disposition is this public policy acknowledged.
Furthermore, the majority’s reliance on Sollami v. Eaton, 201 Ill. 2d 1, 15 (2002), is also misplaced. Although the Illinois Supreme Court in Sollami did state that the existence of an open and obvious danger is not a per se bar to a finding of legal duty on the part of a premises owner or occupier, it did so in the context of explaining that there are two exceptions to the open-and-obvious rule. Sollami, 201 Ill. 2d at 15. As the supreme court in Sollami explained, only when the “distraction exception” or the “deliberate encounter exception” applies in a given case does an owner or occupier of land have a duty to guard against harm to an invitee, despite the obviousness of the danger. Sollami, 201 Ill. 2d at 15-16. Neither of these exceptions was analyzed by the majority, neither was argued by the plaintiff, and neither applies to the case at bar.
The distraction exception applies where the owner or occupier “ ‘has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.’ ” Sollami, 201 Ill. 2d at 15, quoting Restatement (Second) of Torts §343A(1), Comment f, at 220 (1965). The deliberate-encounter exception applies where the owner or occupier “ ‘has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.’ ” Sollami, 201 Ill. 2d at 15, quoting Restatement (Second) of Torts §343A(1), Comment f, at 220 (1965). The deliberate-encounter exception has most often been applied in cases involving some economic compulsion. Sollami, 201 Ill. 2d at 16, citing LaFever v. Kemlite Co., 185 Ill. 2d 380, 392 (1998). As was the case in Sollami, where the Illinois Supreme Court found no duty on the part of an owner or occupier to provide warnings or supervision or prevent the use of a trampoline despite knowledge that teenagers were using it to perform rocket-jumping maneuvers, there is no evidence in the case at bar regarding the applicability of the distraction or deliberate-encounter exceptions.
The record makes clear that at the time of his injury, Zachary was just one month shy of his ninth birthday and was permitted to be at large and beyond the watchful eyes of his parents. The danger presented by “ramping” his bicycle on the four-foot-high dirt pile was the simple danger of falling from a height. Accordingly, established precedent holds that, as a matter of law, the danger was one that Zachary could reasonably be expected to understand and appreciate. See Corcoran, 73 Ill. 2d 316 (no duty on the part of an owner or occupier to a two-year-old child who fell into a ditch because the risk of falling into a ditch is one that children generally should be expected to recognize and appreciate); Mt. Zion State Bank & Trust, 169 Ill. 2d 110 (no duty on the part of an owner or occupier to a six-year-old boy who used a pedestal to climb over a fence and gain access to a pool; the pool was an obvious danger, and the risk associated with a pool is one that a child could reasonably be expected to appreciate); Merkousko v. Janik, 14 Ill. App. 3d 343 (1973) (no duty on the part of an owner or occupier to a seven-year-old boy who fell from a tree made accessible by a pile of dirt; the danger of falling should have been obvious to a child of the boy’s age and experience); Knapp v. City of Decatur, 160 Ill. App. 3d 498 (1987) (no duty on the part of an owner or occupier to a six-year-old child who was injured while playing on a four-foot pile of sand; the danger of falling was a risk not beyond the appreciation of a six-year-old child); Salinas v. Chicago Park District, 189 Ill. App. 3d 55 (1989) (no duty of an owner or occupier to a mentally retarded child who fell from a slide; the danger of falling off a slide was obvious to a child).
The sole fact upon which the majority bases its decision to circumvent the above-described, well-established law of Illinois is the fact that an agent of the Dad’s Club had actual notice that Zachary was ramping his bicycle on the dirt pile and had in fact warned Zachary against the practice. According to the majority, these facts, as a matter of law, made Zachary’s injury foreseeable and imposed a duty on the Dad’s Club. This, again, is a flawed legal proposition. As explained above with regard to well-established Illinois Supreme Court precedent, the foreseeability-of-harm prong of a duty analysis is an objective test, not a subjective test. Mt. Zion State Bank & Trust, 169 Ill. 2d at 126. Accordingly, if the condition is open and obvious, it is irrelevant whether the landowner has actual knowledge that the child is on the premises and encountering the condition.
I also disagree with the majority’s statement that we cannot reach beyond the certified question on appeal and address the additional problems with the circuit court’s order granting a summary judgment in favor of the plaintiff on liability. It is well established that a reviewing court, in the interest of judicial economy, may go beyond the limits of a certified question and address the appropriateness of the order giving rise to the appeal. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 472 (1998), citing Bright v. Dicke, 166 Ill. 2d 204, 208 (1995), and Schrock v. Shoemaker, 159 Ill. 2d 533, 537 (1994). Here, the circuit court granted a summary judgment on all liability issues in favor of the plaintiff, leaving only the issue of damages for a trial. Contrary to the circuit court’s statement in its order granting a summary judgment, and restatement by the majority, the record reflects that the defendant’s motion for a summary judgment did not present the issue of a breach as an issue to be determined by a summary judgment. The defendant’s motion for a summary judgment was submitted on the issue of a duty only.
Although the certified question on appeal is limited to the question of whether the Dad’s Club owed Zachary a duty, in order to grant a summary judgment in favor of the plaintiff, the circuit court, when it granted the summary judgment on liability and ordered the cause to proceed to a trial on damages only, necessarily found that there was no genuine issue of material fact with regard to whether the Dad’s Club breached its duty to Zachary or whether the breach was the proximate cause of Zachary’s injuries. Although a summary judgment is encouraged to aid the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995). Where reasonable persons could draw divergent inferences from the undisputed material facts, a summary judgment should be denied and the issue decided by the trier of fact. Espinoza, 165 Ill. 2d at 114. The issues of breach and proximate cause are factual matters. Thompson v. County of Cook, 154 Ill. 2d 374, 382 (1993).
Here, the undisputed facts are that an agent of the Dad’s Club verbally warned Zachary that he should not ramp his bicycle over the dirt pile and that if he continued to do so, he would be hurt. Assuming, for the sake of argument, that the Dad’s Club had a duty of reasonable care to protect Zachary from the danger of ramping his bicycle over the dirt pile, reasonable persons may differ regarding whether the act of verbally warning Zachary was sufficient to discharge that duty. Thus, even if the Dad’s Club owed Zachary a duty to protect Zachary from injuring himself, a summary judgment in favor of the plaintiff on liability was inappropriate.
In sum, the majority’s disposition of this matter essentially overrules long-standing Illinois law regarding the duties of owners and occupiers of premises. In addition, the circuit court’s order granting a summary judgment in favor of the plaintiff on the issue of liability contradicts our jurisprudence regarding the propriety of a summary judgment in negligence cases. Thus, I must respectfully dissent. For the foregoing reasons, I would answer the certified question on appeal in the negative and reverse the order of the circuit court that granted a summary judgment for the plaintiff on the issue of liability.