Appelhans v. McFall
Case Date: 10/15/2001
Court: 2nd District Appellate
Docket No: 2-00-1175 Rel
|
October 15, 2001
JUSTICE BYRNE delivered the opinion of the court: Plaintiff, Maxine Appelhans, was walking along a rural roadwith no sidewalk when five-year-old defendant William McFall(William) collided with her while he rode his bicycle. Plaintiffsuffered personal injuries and later filed her fourth amendedcomplaint, in which she alleged that William rode his bicyclenegligently and that his parents, defendants William and StacyMcFall, negligently failed to instruct him on the use of thebicycle or supervise him while he rode it. The trial courtdismissed the complaint, and plaintiff appeals. Plaintiff now asksus to overturn the well-settled principle that a child is incapableof negligence if he is less than seven years old. She also arguesthat she was not required to allege specific facts that wouldrender William's alleged negligence more foreseeable to hisparents. We affirm. In her fourth amended complaint, plaintiff alleged thefollowing facts. On October 4, 1999, plaintiff, who was 66 yearsold at the time, was walking north along the eastern edge of McCabeRoad in the Township of Nunda when William, who was five years old,rode his bicycle and struck plaintiff from behind. Plaintiff felland suffered a fractured hip. At the time of the accident, it wasdaylight outside, the pavement was clear and dry, and no otherpedestrians, automobiles, or bicyclists were present. The roadway in the area was straight and flat. In count I, plaintiff alleged that William's parentsnegligently failed to (1) instruct their son on the proper use ofhis bicycle, or (2) supervise him while he rode his bicycle on apublic roadway because they knew or should have known that hisyouth would prevent him from considering the safety of pedestrianssuch as plaintiff. Plaintiff alleged that her injuries wereproximately caused by the parents' failure to supervise their sonor teach him how to use his bicycle properly. In count II,plaintiff generally asserted that William negligently caused thecollision. Defendants filed a motion to dismiss pursuant to sections 2--615(a) and 2--619(a)(9) of the Code of Civil Procedure (Code) (735ILCS 5/2--615(a), 2--619(a)(9) (West 2000)). The trial courtgranted the motion, concluding that William's youth rendered himincapable of negligence and that plaintiff failed to allegespecific facts that would have put William's parents on notice thathe might ride his bicycle negligently. This timely appealfollowed. THE TENDER YEARS DOCTRINE Defendants' motion to dismiss pursuant to section 2--619(a)(9)of the Code admits all well-pleaded facts in the complaint and allreasonable inferences drawn therefrom. See Siebert v. Bleichman,306 Ill. App. 3d 841, 844 (1999). The trial court's dismissalunder the section is subject to de novo review. See Siebert, 306Ill. App. 3d at 844. The fact that disposes of this issue isundisputed: William was five years old when he collided withplaintiff. On appeal, plaintiff contends that we should abandon the well-settled rule that a child is incapable of negligence if he is lessthan seven years old. She argues that we should adopt the"Massachusetts Rule," under which any child will be found capableof negligence if the fact finder decides that the child failed toexercise a degree of care that is reasonable for similarly situatedchildren. Toetschinger v. Ihnot, 312 Minn. 59, 64, 250 N.W.2d 204,208 (1977). Section 283A of the Restatement (Second) of Torts(Restatement) mirrors the Massachusetts Rule and provides that"[i]f the actor is a child, the standard of conduct to which hemust conform to avoid being negligent is that of a reasonableperson of like age, intelligence, and experience under likecircumstances." Restatement (Second) of Torts |
||||