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                                                                                                                               SIXTH DIVISION
                                                                                                                               JANUARY 11, 2002

No. 1-00-4030

PRESIDING JUSTICE GALLAGHER delivered the opinion of the court:

Plaintiff, Phyllis Jakubowski, filed an action, on behalf of the minor plaintiff, FrankJakubowski (Frank) against defendants, Alden-Bennett Construction Company (Alden-Bennett) and Drexel Horizon Limited Partnership (Drexel Horizon), based on commonlaw negligence, for injuries sustained by Frank when he trespassed upon a constructionsite and fell through an opening in the second floor of a partially constructed building. The trial court granted summary judgment to both defendants and denied plaintiff'smotion to reconsider. Plaintiff now appeals. We affirm.

Facts

The relevant undisputed facts establish that Drexel Horizon owned propertylocated at the 3400 block of South 55th Avenue in Cicero, Illinois. On September 30,1996, Drexel Horizon entered into a contractual agreement with Alden-Bennett pursuantto which Alden-Bennett undertook to serve as the general contractor for theconstruction of the Drexel Horixon Senior Living Community (the construction project)on that property.

The relevant sections of the contract provide as follows:

"3.3 Supervision and Construction Procedures

3.3.1 The Contractor shall supervise and direct the Work, using theContractor's best skill and attention. The Contractor shall be solelyresponsible for and have control over construction means, methods,sequences and procedures and for coordinating all portions of the Workunder the Contract, unless Contract Documents give other specificinstructions concerning these matters.

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3.3.5 The Contractor shall provide security of the work during non-workinghours in order to protect the premises against malicious mischief andvandalism and to safeguard life and property throughout the period of theContract.

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10.1 Safety Precautions and Programs

10.1.1 The Contractor shall be responsible for initiating, maintaining andsupervising all safety precautions and programs in connection withperformance of the Contract.

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10.2 Safety of Persons and Property

10.2.1 The Contractor shall take reasonable precautions for safety of, andshall provide reasonable protection to prevent damage, injury or loss to:

.1 employees on the Work and other persons who may beaffected thereby;

.2 the Work and materials and equipment to be incorporatedtherein, whether in storage on or off the site, under care,custody or control of the Contractor or the contractor'sSubcontractors or Sub-subcontractors;

10.2.3 The Contractor shall erect and maintain, as required by existingconditions and performance of the Contract, reasonable safeguards forsafety and protection, including posting danger signs and other warningsagainst hazards, promulgating safety regulations and notifying owners ofadjacent sites and utilities.

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10.2.6 The Contractor shall designate a responsible member of theContractor's organization at the site whose duty shall be the prevention ofaccidents. This person shall be the Contractor's superintendent ***"

Construction on the project began on or about October 1, 1996. Alden-Bennettarranged with the Cicero police department to conduct routine premise checks at theconstruction site after working hours at night and on the weekends.

Frank lived across the street from the construction site on the corner. At hisdeposition, Frank testified that he went over to the construction site every day beforethe accident. Frank was aware that the Cicero police patrolled the construction site.

Alden-Bennett's field superintendent and vice president both testified that they hadseen children on the construction site before the day of the accident. The fieldsuperintendent had chased the boys off the construction site. The vice president hadtold the boys, including Frank, they were not allowed on the construction site. Frank'sparents and even a Cicero police officer had told Frank not to go on the constructionsite. It is undisputed that Frank knew that he was not allowed to be on the constructionsite.

On the date of the accident, April 30, 1997, Frank was 13 years, 11 months ofage. He and his friends went over to the construction site at about 7 or 7:30 p.m. Frank's parents were at work and Frank was supposed to be watching his youngersister. Although it was dark that evening, Frank testified that he could see inside thebuilding and could see where he was walking. Frank and his friends walked up one ofthe stairways to the second floor of the building. Frank had observed the workersputting in another section of the second floor that week and he wanted to check it out. Frank was walking along the second floor when he thought he saw a police car drivingby the construction site. In order to avoid being detected by the police, Frank intendedto duck down. While going to duck down, Frank turned his head and stepped through awall framing into an open stairway and fell to the first floor below, sustaining injuries.

After plaintiff filed her complaint, both defendants moved for summary judgmentasserting that the they did not owe a duty to Frank due to the open and obvious natureof the injury producing condition.⁽¹⁾ The trial court entered an order granting summaryjudgment and denied plaintiff's motion to reconsider.

In appeals from summary judgment, this court conducts a de novo review. Boubv. Township of Wayne, 183 Ill. 2d 520, 524, 720 N.E.2d 535, 537 (1998). Summaryjudgment is properly granted when there are no genuine issues of material fact and themoving party is entitled to judgment as a matter of law. Outboard Marine Corp. v.Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209 (1992). Wemay affirm summary judgment based on any grounds supported by the record. City ofChicago v. Michigan Beach Housing Cooperative, 297 Ill. App. 3d 317, 327, 696N.E.2d 804, 812 (1998). The determination of the existence of a duty is a question oflaw to be resolved by the court. Vesey v. Chicago Housing Authority, 145 Ill. 2d 404,583 N.E.2d 538 (1991).

The general rule is that a landowner or one in possession or control of premises,apart from the duty to refrain from willful or wanton misconduct, is under no duty tokeep the premises in any condition to promote the safety of trespassers, whether theybe minors or adults. Mt. Zion State Bank & Trust v. Consolidated Communications,Inc., 169 Ill. 2d 110, 116, 660 N.E.2d 863 (1995). This general rule "evolved out of thenotion that the law does not require an owner or occupier of land to anticipate thepresence of persons wrongfully or unexpectedly on his land." Corcoran v. Village ofLibertyville, 73 Ill. 2d 316, 325, 383 N.E.2d 177, 179 (1978); see also Mt. Zion StateBank & Trust, 169 Ill. 2d at 122, 660 N.E.2d at 871 (explaining that "[I]n a civilizationbased on private ownership, it is considered a socially desirable policy to permit aperson use of his land in his own way, without the burden of watching for and protectingthose who come there without permission or right").

Plaintiff contends that the issue of whether defendants owed a duty to Frank inthis case is controlled by the doctrine established by our supreme court in Kahn v.James Burton Co., 5 Ill. 2d 614, 126 N.E.2d 836 (1955) (the Kahn doctrine). The Kahndoctrine sets forth the standard for determining the liability of owners and those who arein possession or control of land to children injured on their premises. Calhoun ex rel.Calhoun v. Belt Ry. Co. of Chicago, 314 Ill. App. 3d 513, 518, 731 N.E.2d 332, 336(2000). In Kahn, the court recognized a narrow exception to the general rule where:

"the owner or person in possession knows, or should know, that youngchildren habitually frequent the vicinity of a defective structure ordangerous agency existing on the land, which is likely to cause injury tothem because they, by reason of their immaturity, are incapable ofappreciating the risk involved, and where the expense or inconvenience ofremedying the condition is slight compared to the risk to the children."Kahn, 5 Ill. 2d at 625, 126 N.E.2d at 842.

Subsequent cases have echoed the dictates of Kahn and it is now firmlyestablished that a duty will be imposed on landowners or others in possession orcontrol of premises for personal injuries suffered by a child on the premises if (1) thelandowner or other occupier of land knows or should have known that children frequentthe premises and (2) if the cause of the child's injury was a dangerous condition on thepremises. Corcoran v. Village of Libertyville, 73 Ill. 2d 316, 326, 383 N.E.2d 177, 180(1978). A dangerous condition "is one which is likely to cause injury to the generalclass of children who, by reason of their immaturity, might be incapable of appreciatingthe risk involved." Corcoran, 73 Ill. 2d at 326, 383 N.E.2d at 180. There is no dutyimposed on owners or occupiers of premises to remedy conditions involving obviousrisks which children generally would be expected to appreciate and avoid. Mount ZionState Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 117, 660N.E.2d 863, 868 (1995); Logan v. Old Enterprise Farms, Ltd.,139 Ill. 2d 229, 235, 564N.E.2d 778 (1990); Cope v. Doe, 102 Ill. 2d 278, 286, 464 N.E.2d 1023 (1984);Corcoran, 73 Ill. 2d at 326, 383 N.E.2d at 180. While certainly there are latent dangersthat a child would not appreciate due to his minority, a possessor of land is free to relyupon the assumption that any child old enough to be allowed at large by his parents willappreciate certain obvious dangers or at least make his own intelligent and responsiblechoice concerning them. Mt. Zion State Bank & Trust, 169 Ill. 2d at 117, 660 N.E.2d at868, citing W. Keeton, Prosser & Keeton on Torts