Donita Boaz v. State of Illinois

Claimant’s action arises out of a suit filed by Donna Boaz on behalf of Donita Boaz, a minor, for injuries sustained by her on April 28, 1974. On that date, Donita Boaz, then eight years old, her mother, father and sisters arrived at Horseshoe Lake on Route 111, Nameoki Township, Madison County, Illinois, for an afternoon of fishing. The property is owned by the State of Illinois and is maintained by the State for the recreational use of its citizens and visitors.

The record seems clear that shortly after their arrival, Donita wandered into an abandoned building commonly known as Lakeside Tavern. While upstairs, she severely lacerated her right leg when she stepped through a colored glass window lying on the floor of the second

I

[*596] level of the building. Donita was admitted to St. Elizabeth’s Hospital in Granite City, Illinois, where she remained for approximately one month, during which time she underwent four surgical procedures to repair the injured leg. Due to the extent of her injuries, it will be necessary for Donita to undergo additional cosmetic surgery in the future. As both Claimant and Respondent succinctly suggest, the sole issue before this Court is whether the State of Illinojs is liable for Donita’s injuries.

Claimant alleges that the structure through which the girl fell was a dangerous and attractive nuisance to children, and that Respondent knew the area was attractive to children and should have taken adequate precautions to prevent them from entering upon the property.

Claimant has in fact stressed the so-called attractive nuisance cases, most particularly Kahn v . James Burton Co. (1955), 5 Ill. 2d 614. As we paraphrased in Mislich v. State of Zllinois (1976) 31 Ill. Ct. C1. 428, and reiterate here, the doctrine of attractive nuisance can be summarized as follows:

“Where the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a detective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children. In such cases there is a duty upon the owner or other person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. (Wagner 0 . Kepler, 411 111. 368.) The element of attraction is significant only in so fat as it indicates that the trespass should be anticipated, the true basis of liability being the foreseeability of harm to the child.” Kahn, supra, at 625.

[*597] I

1. The occupier knows that young children fre

quent the vicinity;

2. There is a defective structure or dangerous

agency present on the land;

3. That structure or agency is likely to cause in

jury because of the child’s inability to appreciate the

risk; and

4. The expense of remedying the situation is

slight.

Claimant has essentially paraphrased the Kahn decision in defining five elements necessary to establish liability under the doctrine of attractive nuisance. Claimant argues that all five elements are present here and indeed are indisputable. We agree.

1. The defendent must be in possession or control of the premises and of the instrumentality which cause the injury.

There is no dispute about the fact that the State of Illinois owned and had possession of the abandoned Lakeside Tavern.

2. The premises or instrumentality must have been exposed or readily accessible to children.

Here the premises were near Horseshoe Lake on Illinois State Park property where many families spend time in recreation. There were apparently no signs, fences, locks or warnings or any kind on the building.

3. The instrumentality must have been dangerous in itself and likely to cause injury to those coming in contact with it.

In this case, Claimant asserts the instrumentality was the pane of glass which was on the second floor of the abandoned building and which, at the same time, com[*598]prised part of the ceiling for the first floor. Apparently, the glass was painted so that no one would have known that it was glass or that there was no support under it.

4. The premises or instrumentality must have been attractive and alluring to young children incapable because of their youth of comprehending the danger. As Judge Holderman noted in Mislich,supra, at 433:

“The boy who was injured was eight years of age at the time of the accident. This Court and the Courts of Illinois have repeatedly held that the Illinois law requires a minor over the age of seven years to exercise that degree of care which a reasonably careful person of the same age, capacity, intelligence and experience would exercise under the same or similar circumstances. See Simmons u. State of Illinois, 26 1II.Ct.CI. 351.”

We note nothing in the record that would persuade us that any eight-year-old child exercising perhaps greater care than the Claimant might not have also stepped on the painted glass, which in effect was the dangerous instrumentality.

5. Defendant in control or possession of the premises must have foreseen or have been negligent in not foreseeing that children would come into contact with the instrumentality.

Here Claimant asserts that it should have been foreseeable that children would come into contact with the instrumentality since it was located on an Illinois State park used frequently by many families.

The Respondent’s position is that the State of Illinois is not an insurer of all persons who use and enjoy State parks. It called our attention to Steadman v . State of Illinois, 22 111.Ct.Cl. 446, Finn v . State of Illinois, 21 1ll.Ct.Cl. 117, and Penwell v . State of Illinois, 22 1ll.Ct.Cl. 477, where this Court stated:

“While it is true that Respondent is under a duty to exercise reasonable care in maintaining its parks, it is likewise the law that Respondent is not an insurer against accidents occurring to patrons while using the park facilities.”

[*599] The Respondent also takes the position that before the State can be held liable for an injury on property maintained by it, the State must have actual or constructive notice of the hazardous condition. In Finn, supra, this Court held that:

“. . . to require constant inspection in a park of some size, where the State maintains several thousand acres for the benefit of the public, would place an undue hardship and extraordinary burden on the State, by and through its agents and servants.”

We think the State has missed the point. None of the cases cited by Respondent in its brief specifically deals with a defective structure. In Steadman, Finn, and Hansen 0. State of Illinois, 24 I[Il.Ct.Cl. 102, all cited by the Respondent, this Court dealt with the question of the State’s liability when adults are injured by natural hazards in a State park or recreational facility.

We look to our opinion in Mislich, supra, where an eight-year-old boy fell from an “I” beam on the Crawford Avenue bridge. We determined that the boy fell from an ordinary bridge, that there was nothing unusual about it, there was nothing in particular to attract young people to it, and there was nothing defective about the structure, it being a standard structure used on Interstate 80 for overpasses :

“It appearing that the Claimant has failed to prove the contentions in his complaint and in particular that this was a defective structure or that there was negligence on the part of the Respondent, this claim is hereby denied.”

In all of the above-cited caes, unlike the instant case, there is a definite lack of a defective structure or dangerous condition which we deem essential to liability under the attractive nuisance doctrine.

It is true, as we have often held, that for the State to be liable for an injury, it must have actual or constructive notice of the hazardous condition. In this case, apparently, the State had previously boarded up the building [*600] which in our judgment is sufficient evidence to indicate at least constructive notice of a potentially hazardous condition, and had thereafter failed to inspect or in any way remedy this situation. The record is devoid of any other attempt by the State to reasonably maintain the structure or, failing that, to adequately warn its citizens of potential danger therefrom. We believe the record reflects that the State had the requisite notice of the hazardous condition and negligently failed to remedy that condition in any manner.

Finally, the Respondent argues that the Recreational Use of Land and Water Areas Act, I11.Rev. Stat. 1977, ch. 70, pars. 31-37, severely limits the duty on the part of the Respondent to exercise care towards any person using the land for recreational purposes. The Respondent cites Vaughn 0.State of Zllinois (1977), 31 111.Ct.Cl. 465, wherein the State was charged with negligence in failing to provide warning signs of safety hazards and rescue equipment at a dam or spillway. In that case this Court looked to the following language of the Act:

“Section 3. Duty of care or warning of dangerous condition. Except as specifically recognized or provided in Section 6 of this Act, an owner of land owes no duty of care to keep the premises safe for entry or use by any person for recreational purposes, or to give any warning of a dangerous condition, use, structnre, or activity on such premises to persons entering for such purposes.

Section 4. Effect of invitation or permission. Except as specifically recognized by or provided in Section 6 of this Act, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:

(a) Extend any assurance that the premises are safe for any purpose.

(b) Confer upon such person the legal status of an invitee or licensee

to whom a duty of care is owed.

(c) Assume responsibility for or incur liability for any injury to per

son or property caused by an act of omission of such person or any other

person who enters upon the land.

* o o

Section 6. Willful or malicious acts - Injury suffered by persons paying [*601] admission. Nothing in this Act limits in any way any liability which otherwise exists:

(a) For willful or malicious failure to guard or warn against a

dangerous condition, use, structure, or activity.

(b) For injnry suffered in any case where the owner of land charges

the person or pcrsons who enter or go on the land for the recreational

nse thcwof . . .”

We also looked to section 8(d) of the Court of Claims Act (111.Rev.Stat. 1979, ch. 37, par. 439.8(d)), which is this Court’s jurisdictional authority for claims sounding in tort. It provides in pertinent part as follows:

“(d) All cI.iinis ag.iinst the State for daniagcs 111 ~ ‘ t s e swnnchg 111 tort, r f (Ilike m i s e of uctron worrltl lie oguinpt (I prruute person or ~orporotionrn u crud sirit . . ’’ (Eniphcisisciddcd) Vaughn involved a factual situation where a boat was caught in a current and, in trying to escape, two passengers were swept over a spillway. We determined that the Recreational Use of Land and Water Areas Act would have absolved a private party owner of any duty of care toward a person using the land or water for recreational purposes (except the duty to willfully or maliciously fail to guard against or warn against a dangerous condition). The State was similarly absolved of such duty pursuant to the provisions of Section 8(d) of the Court of Claims Act.

A number of distinctions can be drawn between Vaughn and the instant claim, but basically only one is necessary. The Act specifically refers to the “use of land for recreational purposes” and it is clear to us that the structure (Lakeside Tavern) in which Donita Boaz was injured simply cannot be considered “land for recreational purposes” within the legislative intent of the Act.

Accordingly, it is hereby ordered that the Claimant be, and hereby is, awarded the sum of $30,000.00.

[*602] , (No. 75-CC-OY56-CI;iirii;1nts ;iwardetl $13,000.00.)

ROBERT BERNHARD and SHIRLEY BERNHARD, Claimants,

v . T HE STATE OF ILLINOIS, Respondent.

Order f i / ~ d ] t r l y14, 1982.

Order filed April 20, 1983.

CLINTON, TONCREN & GRIM (ROBERT S. GRIM, of counsel), for Claimants.

NEIL F.’ HARTIGAN, Attorney General (FRANC~S M. DONOVAN, Assistant Attorney General, of counsel), for Respondent.

HicriwAus-druinuge blocketl-stipulation-uward grunted. The damage to Clainiants’ property which occnrred when State constructed massive solid earth enibanknient which blocked natnral flow of water was admitted by State in joint stipnlation of parties, and award agreed to by parties was allowed as the record established that the enibanknient blocked the natnral flow of water and caused Claimants’ property to be flooded and nntillable resnlting in snbstantial damage.

ORDER

HOLDERMAN, J.

Claimants originally filed a suit in the circuit court of Will County against the Troy Township Board of Auditors, the County of Will, and Roy L. Cousins, Superintendent of Highways for Will County. After a verdict for $25,000 was entered in Claimants’ favor, post-trial motions were filed, raising the possibility of a new trial. Claimants, for valuable consideration therein stated, executed a release of the Troy Township Board of Auditors and a covenant not to sue Will County, Roy L. Cousins, or any other Will County official.

Respondent contends that the release of one ,tortfeasor is the release of all. In support of its position, Respondent cites the case of Jeanguenat v. State of Zllinois (1982), 76-CC-1987, in which this Court cites the cases of Alberstett v. Country Mutual Znsurance Co. (1979), 79 Ill. App. 3d 407, and McGill v. State of Zllinois, 29 111.

[*603] Ct. C1. 450. In the latter case, it was held that “the law is well established in this State, as Respondent suggests, that the release of one tortfeasor releases all joint tortfeasors.” The Court relied on Illinois Law & Practice Releases, Section 25. It was further held that the fact that the joint tortfeasors were sued in different forums did not change the operation of the above-stated rule of law.

It is hereby ordered that this claim be, and the same is, hereby dismissed with prejudice.

ORDER

HOLDERMAN, J.

This matter coming before the Court on the joint stipulation of the parties to the entry of an award in the amount of thirteen thousand and no/100 ($13,000.00) dollars in favor of Claimants herein, representing full and final settlement of their complaint as earlier filed herein, the Court having jurisdiction of the subject matter hereof and the parties hereto, and being fully advised in the premises, doth find as follows:

1. That the nature of the claim herein is in tort; moreover, recovery is sought pursuant to section 8(d) of the Court of Claims Act. (P1l.Rev.Stat. 1979, ch. 37, par. 439.8(d)) .

2. That Claimants are the joint owners of the following real property, namely:

Northeast Quarter of Section 29, Troy Township, 35 North

Range 9 East of the Third Principal Meridian, in Will County,

Illinois, 160 acres more or less.

3. That during the years 1959 and 1980, the Division of Highways of the Department of Public Works and Buildings of the State of Illinois (hereinafter referred to as the State of Illinois) constructed and/or caused to be constructed, or had constructed in its behalf, a massive and elevated solid earth highway embankment identified [*604] as Federal Aid Interstate Route 80 Highway: Said highway was imposed through Sections 28 and 29 of Troy Township, Will County, Illinois, and more particularly through the southern portion of Claimants’ above-described real property (a true and correct photocopy of an aerial photograph of Claimants’ property is attached hereto, marked Exhibit A, and made a part hereof: the photograph shows the boundaries of Claimants’ property and the position of the subject highway as imposed thereon).

4. That the natural drainage of surface and subsurface water of approximately 749 acres followed a course from north to south and thence, southeast over and upon the southeasterly quarter of Claimants’ aforementioned property (a true and correct photocopy of a topographical map prepared by George Reiter and Associates is attached hereto, marked Exhibit B, and made a part hereof. This said map illustrates the topography of Claimants’ real property and especially the flow of surface and subsurface water from approximately 749 acres in the southeast portion thereof),

5 . That in furtherance of said natural north to south drainage of a substantial area of acreage lying westerly of the Claimants’ aforementioned property, there is a natural drainage ditch passing through said premises and extending from north to south through the east-west line of said highway embankment.

6. That during the years 1959 and 1960, the State of Illinois constructed, caused to be constructed and/or had constructed on its behalf a conduit extending through the solid and elevated highway embankment having been designed for the purpose of facilitating the drainage of the surface flow of water through the said highway embankment.

7. That the conduit mentioned in the immediately [*605] preceding paragraph as initially installed had an approximate 36" diameter and was wholly inadequate for its intended purpose.

8. That prior to the construction of the subject embankment, Claimants' property was properly drained and the natural and normal flow of surface and subsurface water followed certain patterns and directions as hereinbefore described without obstruction or impasse.

9. That as a result of the construction of the subject embankment and the installation of the subject 36"- diameter conduit, the natural flow of surface and subsurface water in and about the southeasterly quarter of Claimants' property was unnaturally obstructed, dammed, levied and/or otherwise destroyed and impeded, and water flow was thereby unnaturally prevented from following its path from north to south across Claimants' property.

10. That as a result of the premises as set forth in the immediately preceding paragraph, storm water runoff would frequently pond, thereby depriving Claimants of ' the use, benefit and value of many and substantial acres of their previously tillable farmland: Claimants were caused to suffer immediate and continuing damage on each and every occasion of heavy rainfall.

11. That as a further result of the premises set forth in paragraph No. 10, hereinabove, Claimants suffered a substantial diminution in the market value of their property.

12. That no other claim has been previously presented to any State department or officer thereof.

13. That the Claimants herein are owners of the claim or interest filed herein and obtain their interest in said claim as owners of said property at all times pertinent hereto.

[*606] 14. That no assignment or transfer of the claims or any part thereof, or interest, has been made.

Therefore, it is hereby ordered that the Claimants be and the same are hereby awarded the sum of thirteen thousand and no/100 ($13,000.00) dollars in full and final settlement and satisfaction of their Claim.