Ward v. Mid-American Energy Co.
Case Date: 05/10/2000
Court: 3rd District Appellate
Docket No: 3-99-0566
Ward v. Mid-American Energy Co., No. 3-99-05663rd District, 10 May 2000
PRESIDING JUSTICE SLATER delivered the opinion of the court: Plaintiff Lori Ward, as special administratrix of the estate of Matthias Ward, and plaintiff Charmaine Morse, as specialadministratrix of the estate of Steven Morse, appeal from the dismissal of their suit against defendant Mid-AmericanEnergy Company. We reverse and remand. Facts Plaintiffs' complaint was dismissed for failure to state a cause of action pursuant to section 2--615 of the Code of CivilProcedure (Code) (735 ILCS 5/2--615 (West 1996)). Accordingly, all well-pleaded facts in plaintiffs' complaint areaccepted as true (Brackett v. Galesburg Clinic Ass'n, 293 Ill. App. 3d 867, 689 N.E.2d 406 (1997)); our recitation of thefacts is based on the pleadings and the trial court's order. On August 12, 1996, 14-year old Matthias and 16-year old Steven were playing catch on the banks of a body of waterknown as Sylvan Slough. The slough is adjacent to and flows into the Mississippi River. The area where the boys wereplaying is known as a "tail race" area and is located below a dam owned and operated by the defendant. The boys enteredthe water to retrieve the ball and were swept up in dangerous currents and drowned. Plaintiffs alleged that defendant knewthat the tail race was a popular wading and swimming area, knew of the existence of treacherous underwater currents, andknew of six previous drownings. Plaintiffs further alleged that defendant had created the dangerous currents, the currentswere not apparent from the surface, and defendant knew the danger was not apparent. Plaintiffs asserted that defendant wasnegligent in failing to place or maintain warning signs regarding the dangerous underwater currents. The trial courtdismissed plaintiffs' complaint on the basis that the dangers presented by a body of water are open and obvious. Analysis A motion to dismiss filed pursuant to section 2--615 of the Code attacks the legal sufficiency of the complaint; a reviewingcourt must determine whether the allegations of plaintiffs' complaint, construed in the light most favorable to the plaintiffs,are sufficient to establish a cause of action upon which relief may be granted. Weatherman v. Gary-Wheaton Bank, 186 Ill.2d 472, 713 N.E.2d 543 (1999). In making this determination, all well-pleaded facts in the complaint and all reasonableinferences flowing therefrom are accepted as true. Weatherman, 186 Ill. 2d 472, 713 N.E.2d 543. A section 2--615 motionshould not be granted unless it clearly appears that no set of facts could ever be proved that would entitle the plaintiffs torecover. Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 660 N.E.2d 863 (1995). Thestandard of review from an order granting a section 2--615 motion to dismiss is de novo. Weatherman, 186 Ill. 2d 472, 713N.E.2d 543. Under Illinois law, persons who own, occupy, or control and maintain land are not ordinarily required to foresee and protectagainst injuries from potentially dangerous conditions that are open and obvious. Bucheleres v. Chicago Park District, 171Ill. 2d 435, 665 N.E.2d 826 (1996). "In cases involving obvious and common conditions, such as fire, height, and bodies of water, the law generallyassumes that persons who encounter these conditions will take care to avoid any danger inherent in such condition.The open and obvious nature of the condition itself gives caution and therefore the risk of harm is considered slight;people are expected to appreciate and avoid obvious risks." Bucheleres, 171 Ill. 2d at 448, 665 N.E.2d at 832. A body of water, whether it is natural or artificial, is deemed to present an open and obvious danger. Jackson v. TLCAssociates, Inc., 185 Ill. 2d 418, 706 N.E.2d 460 (1998); see Bucheleres, 171 Ill. 2d 435, 665 N.E.2d 826. The water'sdanger is considered to be apparent not only to experienced swimmers, but even to very young children. Jackson, 185 Ill. 2d418, 706 N.E.2d 460. However, the existence of an open and obvious danger is not a per se bar to finding that a landownerhas a duty to exercise reasonable care. Jackson, 185 Ill. 2d 418, 706 N.E.2d 460; Bucheleres, 171 Ill. 2d 435, 665 N.E.2d826. In determining whether such a duty is owed, a court must still apply traditional duty analysis, which includesconsideration of the following factors: the likelihood of injury; the reasonable foreseeability of such injury; the magnitudeof the burden of guarding against the injury; and the consequences of placing that burden on the defendant. Jackson, 185 Ill.2d 418, 706 N.E.2d 460. With respect to the first factor, the likelihood of injury is generally considered slight when the condition is open andobvious because it is assumed that persons encountering the dangerous condition will appreciate and avoid the risk.Bucheleres, 171 Ill. 2d 435, 665 N.E.2d 826. However, "if a danger is concealed or latent, rather than open and obvious, thelikelihood of injury increases because people will not be as readily aware of such latent danger." Bucheleres, 171 Ill. 2d at456, 665 N.E.2d at 836. Of course, the risk of drowning is inherent to bodies of water (see Jackson, 185 Ill. 2d 418, 706N.E.2d 460), in part because of the dangers presented by unknown surface or subsurface elements (see Lerma v. RockfordBlacktop Construction Co., 247 Ill. App. 3d 567, 617 N.E.2d 531 (1993)). Nevertheless, plaintiffs have alleged that theexistence of powerful underwater man-made currents was not apparent from the surface and the danger was not open andobvious. A dangerous condition is "obvious" when "'both the condition and the risk are apparent to and would berecognized by a reasonable [person]'" exercising ordinary perception, intelligence and judgment. Deibert v. Bauer BrothersConstruction Co., 141 Ill. 2d 430, 435, 566 N.E.2d 239, 241 (1990), quoting Restatement (Second) of Torts |
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