                                                    NO. 5-05-0321
                   NOTICE

 Decision filed 04/10/08. The text of
                                                       IN THE
 this decision may be changed or

 corrected prior to the filing of a
                                            APPELLATE COURT OF ILLINOIS
 Peti tion   for    Rehearing   or   th e

 disposition of the same.
                             FIFTH DISTRICT
________________________________________________________________________

SHEILA R. GRANT, Individually and as Mother ) Appeal from the
and Next Friend of Zachary Grant, a Minor,  ) Circuit Court of
                                            ) Madison County.
   Plaintiff-Appellee,                      )
                                            )
v.                                          ) No. 01-L-1128
                                            )
SOUTH ROXANA DAD'S CLUB,                    ) Honorable
                                            ) George J. Moran,
   Defendant-Appellant.                     ) Judge, presiding.
________________________________________________________________________

             JUSTICE CHAPMAN delivered the opinion of the court:

             The plaintiff, Sheila Grant, is the mother of a young boy who was seriously injured

when he fell while riding his bicycle over a dirt pile on the premises of the defendant, the

South Roxana Dad's Club (Dad's Club). Eight-year-old Zachary Grant rode his bicycle over

the dirt pile as a means of deliberately becoming airborne on the bicycle–a practice called

"ramping." The parties filed cross-motions for a summary judgment on the issues of whether

the defendant owed a duty to Zachary and, if so, whether it breached that duty. The court

granted the plaintiff's motion. The defendant appeals, pursuant to Supreme Court Rule

308(a) (155 Ill. 2d R. 308(a)), arguing that the stipulated facts established, as a matter of law,

that Dad's Club did not owe Zachary a duty either to remove the dirt pile or to warn him of

the potential hazard because it was an open and obvious danger which posed a risk that even

a child of eight could understand and appreciate. We affirm the trial court's ruling.

             The defendant is a nonprofit organization which operates a playground that is open

to the public. Children are permitted to play in the park without adult supervision. In a

building located on the premises, the defendant holds bingo games intended to raise money

                                                         1
for use in maintaining the playground. Bob Halbert, the park commissioner for Dad's Club,

explained that the organization is called "Dad's Club" because fathers who reside in the area

keep the playground operational by participating in these fund-raisers.

       On August 18, 1999, eight-year-old Zachary Grant lived with his family across the

street from Dad's Club. That day, Zachary spent much of the day outside riding his bicycle

with three friends. The boys liked to "ramp" their bicycles. Zachary described "ramping"

as riding a bicycle up one side of a curb, bump in the road, or dirt pile in order to become

airborne on the other side. At that time, there were two large dirt piles in the parking lot of

Dad's Club. Each pile was approximately four feet high. The dirt had been trucked in for

use in a construction project several months earlier. The record is not clear regarding the

exact time the dirt piles first appeared. Sheila Grant, Zachary's mother, thought they might

have been there for close to a year. Robert Grant, Zachary's father, believed they had been

there "at least since springtime."

       On the day in question, Zachary and his friends were riding their bicycles in the

parking lot of Dad's Club and using one of the dirt piles to ramp. Zachary lost control of his

bicycle when the handlebars twisted. This caused him to fall and break his arm. The injury

was severe, requiring two surgeries. Although Zachary testified in a June 2002 discovery

deposition that his arm no longer hurt him, he reported having a decreased range of motion

in that arm. He also had a scar from the surgery, and the arm that was broken in the accident

did not grow to be as long as Zachary's uninjured arm.

       The defendant removed the dirt pile the day following Zachary's accident. This was

accomplished simply by spreading the dirt around.

       On October 1, 2001, Sheila Grant filed a first amended complaint alleging that the

defendant acted negligently in leaving the dirt pile where it knew or should have known that

children were playing and in failing to warn the children of the danger. On August 25, 2002,


                                              2
the defendant filed a motion for a summary judgment, arguing that on the basis of

uncontroverted facts, it did not owe Zachary a duty to remove the dirt pile or warn of the

potential danger. The defendant contended that (1) the dirt pile was an open and obvious

danger and (2) Zachary was mature enough to appreciate the risk posed by ramping his

bicycle on the dirt pile. Thus, the defendant argued, the injury he suffered was not

foreseeable to the defendant and the defendant therefore had no duty to protect against it.

In support of these arguments, the defendant cited cases in which courts have found that the

risk of falling from a height is a danger that children of Zachary's age and younger could

appreciate. The defendant also pointed out that Zachary admitted in deposition testimony

that he was aware he could fall while ramping his bicycle and that, in fact, he had fallen

while ramping his bicycle on previous occasions.

       In response, the plaintiff filed her own motion for a summary judgment. She agreed

that no genuine dispute of material fact existed and that a summary judgment was therefore

proper regarding liability. She argued that the defendant had actual knowledge that children,

including Zachary, were riding their bicycles on the pile of dirt, thus defeating any claim that

the injury was not foreseeable. In support of this contention, the plaintiff attached a

transcript of a recorded statement of Bob Halbert, Dad's Club's park commissioner. Halbert

stated that he had seen children riding their bicycles on the dirt pile on two different

occasions prior to Zachary's accident. On one occasion, he saw some children riding their

bicycles on the pile as he drove his car past Dad's Club. On another occasion, the day before

Zachary's accident, Halbert saw Zachary and one other boy riding their bicycles on the pile.

He told them to stop because they could get hurt, and then he went into the building to do

some work. He stated that, when he left the building later to go home, he saw that the boys

were still in the Dad's Club parking lot walking their bikes. He stated, "[S]o I had no doubt

they came right back."


                                               3
      On December 17, 2003, the court granted the plaintiff's motion for a summary

judgment and denied the defendant's motion. In so ruling, the court expressly found as

follows:

             " 1. That both parties agree that no questions of material fact exist, and that

      liability herein is a question of law for the Court to determine;

             2. That the defendant operated a park in which young, unsupervised children

      were allowed to play, and defendant knew that young children did so frequently;

             3. That the defendant created a pile of dirt on its property;

             4. That while the pile of dirt itself was innocuous, it became a dangerous and

      defective condition when the defendant became aware on more than one occasion that

      young children were using it to ramp their bicycles;

             5. That defendant knew that such activity on its dirt pile was dangerous and

      likely to cause injury;

             6. That the defendant knew that the children, because of their immaturity, did

      not appreciate the risk involved, because it knew that its warnings of the danger

      would go unheeded;

             7. That the expense involved in remedying the condition and guarding against

      injury was slight, i.e.[,] spreading the dirt about;

             8. That given defendant's actual knowledge of all of the foregoing, potential

      injury to the children invited to play on its property was foreseeable, and defendant

      therefore had a duty to remedy the condition; and

             9. That defendant breached its duty by failing to remedy that condition."

      On January 16, 2004, the defendant filed a motion to reconsider, which the court

denied on February 27, 2004. On April 21, 2005, the defendant filed a motion for

certification for leave to appeal pursuant to Supreme Court Rule 308(a) (155 Ill. 2d R.


                                              4
308(a)). On May 12, 2005, the court granted the defendant's motion and certified the

following question for our review:

              "What duty, if any, does a landowner have to an eight-year-old minor on its

       property with respect to an open and obvious condition, a four[-]foot[-]high dirt pile,

       when it has notice that the minor has engaged in an activity involving that condition,

       riding his [bicycle] over the dirt pile, that has a risk of injury to the minor?"

       The existence of a duty is a question of law. LaFever v. Kemlite Co., 185 Ill. 2d 380,

388, 706 N.E.2d 441, 446 (1998). Duty is shaped by public policy considerations. LaFever,

185 Ill. 2d at 388, 706 N.E.2d at 446. Whether the law will impose an obligation of

reasonable conduct upon a defendant for the benefit of a plaintiff depends on the nature of

the relationship. Marshall v. Burger King Corp., 222 Ill. 2d 422, 441, 856 N.E.2d 1048,

1060 (2006); LaFever, 185 Ill. 2d at 388-89, 706 N.E.2d at 446. The four factors generally

considered determinative on the issue of a duty under Illinois common law are (1) the

reasonable foreseeability of the plaintiff's injury, (2) the reasonable likelihood of the injury,

(3) the magnitude of the defendant's burden of guarding against the injury, and (4) the

consequences of placing that burden on the defendant. LaFever, 185 Ill. 2d at 389, 706

N.E.2d at 446.

       Section 343 of the Restatement (Second) of Torts, adopted by the Illinois courts in

Genaust v. Illinois Power Co., 62 Ill. 2d 456, 343 N.E.2d 465 (1976), states the law

regarding the duty owed by landowners to invitees:

       "A possessor of land is subject to liability for physical harm caused to his invitees by

       a condition on the land if, but only if, he

              (a) knows or by the exercise of reasonable care would discover the condition,

       and should realize that it involves an unreasonable risk of harm to such invitees, and

              (b) should expect that they will not discover or realize the danger, or will fail


                                               5
       to protect themselves against it, and

              (c) fails to exercise reasonable care to protect them against the danger."

       Restatement (Second) of Torts §343, at 215-16 (1965).

       The Illinois Premises Liability Act abolished the common law distinction between

invitees and licensees, requiring of landowners the same duty "of reasonable care under the

circumstances regarding the state of the premises or acts done or omitted on them." 740

ILCS 130/2 (West 1994).

       The defendant argues that any duty it might have owed Zachary was negated by the

open and obvious nature of the risk. The open-and-obvious-danger rule is one application

of the principle that a landholder should only be held liable for failing to prevent harm he or

she could reasonably be expected to foresee. The rule stems from the presumption that it is

not foreseeable that a person will intentionally encounter the risk of an open and obvious

danger. See Ward v. K mart Corp., 136 Ill. 2d 132, 147, 554 N.E.2d 223, 229-30 (1990).

The Ward court adopted section 343A(1) of the Restatement (Second) of Torts, which

provides as follows: "A possessor of land is not liable to his invitees for physical harm

caused to them by any activity or condition on the land whose danger is known or obvious

to them, unless the possessor should anticipate the harm despite such knowledge or

obviousness." Restatement (Second) of Torts §343A(1), at 218 (1965).

       When a child is injured, however, courts recognize that it may be foreseeable that the

child, due to immaturity, will not fully appreciate the risk involved in encountering what to

an adult is an open and obvious danger. Nevertheless, there are some dangers that are so

obvious that even a child can be expected to know to avoid them. Corcoran v. Village of

Libertyville, 73 Ill. 2d 316, 326, 383 N.E.2d 177, 180 (1978). Such risks include fire, water,

and falling from heights. Corcoran, 73 Ill. 2d at 327, 383 N.E.2d at 180 (relying on

Restatement (Second) of Torts §339, Comment j, at 203 (1966)). The test is whether a


                                               6
typical child who is old enough to be at large would lack the maturity to understand and

appreciate the risk involved, therefore making it foreseeable that a typical child might be

injured. See Corcoran, 73 Ill. 2d at 326, 383 N.E.2d at 180 (noting that "the foreseeability

of harm to children [is] the cornerstone of liability"); Salinas v. Chicago Park District, 189

Ill. App. 3d 55, 61, 545 N.E.2d 184, 187 (1989) (explaining that there is no duty to a child

where children of a similar age can appreciate the danger).

       We note that the ability of children to appreciate the danger is not the only issue in

determining whether a duty exists. In order to find that a landholder owes a duty to a child

injured on its premises, 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. Mt. Zion State

Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 116-17, 660 N.E.2d

863, 868 (1995) (citing Khan v. James Burton Co., 5 Ill. 2d 614, 625, 126 N.E.2d 836, 842

(1955)).

       The defendant argues that Zachary's injuries were not foreseeable and that, therefore,

it had no duty to take steps to prevent them from happening. According to the defendant,

Zachary's injuries were not foreseeable for two reasons: (1) the danger that Zachary

encountered was "the simple danger of falling from a height" of four feet, a danger our courts

have repeatedly held to be one that children are able to appreciate and understand (see Knapp

v. City of Decatur, 160 Ill. App. 3d 498, 505, 513 N.E.2d 534, 538 (1987) (noting that courts

"routinely" find that children are capable of appreciating the risk of falling)), and (2) the

defendant could not be expected to anticipate any and all misuses to which children might

put the dirt pile (see Donehue v. Duvall, 41 Ill. 2d 377, 379-80, 243 N.E.2d 222, 223-24

(1968) (implicitly finding that an injury caused when one child threw a clod of dirt at another

was not foreseeable to the landowner who maintained a dirt pile on its property because the


                                              7
child's act of throwing the dirt clod was not foreseeable)).

       Even assuming that the danger Zachary faced was one that an average child his age

could be expected to understand and appreciate, this does not necessarily mean that Dad's

Club had no duty to take precautions to prevent the harm. See Sollami v. Eaton, 201 Ill. 2d

1, 15, 772 N.E.2d 215, 223 (2002) (explaining that "the existence of an open and obvious

condition is not a per se bar to a finding of legal duty on the part of a premises owner or

occupier"). As previously noted, the open-and-obvious-danger rule is simply one aspect of

determining the foreseeability of harm. Indeed, even in the context of adult plaintiffs, courts

have recognized exceptions to the open-and-obvious-danger rule where it is foreseeable that

a plaintiff might encounter the danger in spite of its open and obvious nature. See, e.g.,

Ward v. K mart Corp., 136 Ill. 2d 132, 153, 554 N.E.2d 223, 233 (1990) (finding the risk of

harm foreseeable where it is foreseeable that an adult plaintiff might be too distracted to

notice an otherwise open and obvious danger); LaFever v. Kemlite Co., 185 Ill. 2d 380, 392,

706 N.E.2d 441, 448 (1998) (finding it foreseeable that an adult plaintiff will deliberately

encounter an open and obvious danger due to economic necessity); see also Sollami, 201 Ill.

2d at 16, 772 N.E.2d at 224 (specifically stating that the deliberate-encounter exception may

be applicable in circumstances not involving economic compulsion but finding the exception

inapplicable to a 15-year-old girl injured while jumping on a trampoline).

       We return to foreseeability as the cornerstone of our duty analysis. Corcoran, 73 Ill.

2d at 326, 383 N.E.2d at 180. As pointed out by the LaFever court, the Restatement requires

that we decide foreseeability by the reasonableness of the landowner's actions, not the

entrant's actions. LaFever, 185 Ill. 2d at 393, 706 N.E.2d at 448. "The Restatement directs

that with regard to open and obvious hazards, liability stems from the knowledge of the

possessor of the premises, and what the possessor 'ha[d] reason to expect' the invitee would

do in the face of the hazard." LaFever, 185 Ill. 2d at 392, 706 N.E.2d at 448 (quoting


                                              8
Restatement (Second) of Torts §343A, Comment f, at 220 (1965), and citing R. Ferrell,

Emerging Trends in Premises Liability Law, 21 Ohio N.U. L. Rev. 1121, 1137 (1995)).

       We now consider whether Zachary's injuries were foreseeable under the facts

presented. As previously discussed, Dad's Club's park commissioner, Mr. Halbert, knew that

Zachary and other children his age were using the dirt pile to ramp their bicycles, and he

anticipated that the boys, including Zachary, could be hurt. His exact words were "I told

them not to ride that [be]cause they could get hurt." Therefore, Dad's Club had actual

knowledge that children, including Zachary, were using the dirt pile in a dangerous manner.

The certified question itself incorporates this knowledge, asking what duty a landholder has

to a child "when it has notice that the minor has engaged in an activity involving that

condition, riding his [bicycle] over the dirt pile, that has a risk of injury to the minor." If we

are to give any meaning to the plain language contained in the conditional phrasing of section

343A(1)–"unless the possessor should anticipate the harm despite such knowledge or

obviousness" (Restatement (Second) of Torts §343A(1), at 218 (1965))–Mr. Halbert's

statement that he in fact foresaw that the children would not appreciate the risk and would

continue to encounter it fits within that meaning.

       Furthermore, we reject the defendant's attempts to avoid liability outright by invoking

the open-and-obvious-danger exception to duty. The open-and-obvious-danger rule is not

a substitute for an analysis of a defendant's duty under the circumstances of a case. Ward,

136 Ill. 2d at 147-48, 554 N.E.2d at 230.            The focus of inquiry must be on the

defendant–whether the defendant could reasonably have foreseen injury to the plaintiff.

Ward, 136 Ill. 2d at 148, 554 N.E.2d at 230. As so aptly stated by the supreme court, "The

only sound explanation for the 'open and obvious' rule must be either that the defendant in

the exercise of reasonable care would not anticipate that the plaintiff would fail to notice the

condition, appreciate the risk, and avoid it (see Keeton, Personal Injuries Resulting from


                                                9
Open and Obvious Conditions, 100 U. Pa. L. Rev. 629, 642-43 (1952)), or perhaps that

reasonable care under the circumstances would not remove the risk of injury in spite of

foreseeable consequences to the plaintiff." Ward, 136 Ill. 2d at 147, 554 N.E.2d at 229-30.

In the face of the defendant's acknowledged anticipation of the risk to the children, including

Zachary, we believe that Zachary's injuries were foreseeable.

       Reaching a decision on the foreseeability factor does not end our analysis regarding

the duty issue. We next consider the likelihood of Zachary's injury. The defendant argues,

citing Sollami, that this factor carries little weight because, once the risk is determined to be

open and obvious, it is reasonable for the defendant to assume that the risk will be

appreciated and avoided. See Sollami, 201 Ill. 2d at 17, 772 N.E.2d at 224. While the

defendant correctly cites to Sollami for this proposition, we believe that the fact that the

minor in Sollami was a teenager of 15 years, rather than a child of 8 years, must have some

bearing on our decision regarding the assessment of what is open and obvious, as does the

fact that here the defendant did not assume that the risk would be appreciated and avoided

by the children. To the contrary, Mr. Halbert stated that he thought that his warning to the

boys the day before would go unheeded and that they would be right back at it, because he

saw them return after he told them not to ramp off of the dirt pile. Mr. Halbert believed that

the children did not appreciate the risk and would not avoid the risk. It is also clear from this

statement that Mr. Halbert appreciated the likelihood of injury.

       The last two factors–the magnitude of the burden of imposing the duty and the

consequences of imposing the duty–favor imposing a duty on the defendant. We agree with

the trial court's finding that the expense of remedying the duty was slight. The defendant

concedes this point by stating in its brief, "[T]here is no question that the dirt pile was

relatively easy to remove." The dirt was simply spread out around the ground the next day.

The consequences of imposing this burden on the defendant were also negligible. The dirt


                                               10
had been left over from a construction project and apparently was no longer needed. Once

the pile was removed, there was no further burden to the defendant.

       Additionally, the nature of the relationship between Dad's Club and Zachary squarely

impacts the public policy considerations for imposing a duty on the defendant for the benefit

of the plaintiff. The very purpose of Dad's Club is to provide a playground for children such

as Zachary. While the defendant characterizes Zachary as a "non[]trespasser," the legal

relationship is clearly that of an invitee. Under Illinois law, this relationship gives rise to a

duty of reasonable care under the circumstances. 740 ILCS 130/2 (West 1998). Our above

analysis of the four factors generally considered in determining duty does not support an

exemption from that duty. W e therefore find that Dad's Club owed Zachary a duty of

reasonable care.

       Having found that Dad's Club owed Zachary a duty of reasonable care, however, is

not the same as concluding that Dad's Club breached its duty of reasonable care to Zachary.

The question certified to this court does not include the question of a breach. Nevertheless,

the plaintiff's brief requests this court to affirm the trial court's summary judgment finding

that Dad's Club both owed a duty to Zachary and violated that duty. The existence of a duty

does not equate to a breach of duty. The two concepts are distinct and must be considered

separately. LaFever, 185 Ill. 2d at 396, 706 N.E.2d at 450. It appears that in their analysis

of liability, both parties, as well as the court below, have blended the concepts of duty and

breach. See Marshall, 222 Ill. 2d at 434-43, 856 N.E.2d at 1056-61 (discussing the

misconceptions regarding the elements of duty and breach in the broader context of

negligence liability). Indeed, the openness or obviousness of a danger will continue to have

a bearing on the plaintiff's ultimate recovery, as it relates to breach and proximate cause. See

LaFever, 185 Ill. 2d at 396-97, 706 N.E.2d at 450; Marshall, 222 Ill. 2d at 443, 856 N.E.2d

at 1061.


                                               11
       The question of a breach is not properly before this court. An interlocutory appeal

brought pursuant to Supreme Court Rule 308 is limited to the certified question. Rule 308

is not intended to expand the certified question to answer other unasked questions.

Giangiulio v. Ingalls Memorial Hospital, 365 Ill. App. 3d 823, 829, 850 N.E.2d 249, 255-56

(2006). We decline to expand the scope of review to include whether Dad's Club breached

the duty of care owed to Zachary.

       For the foregoing reasons, we find that the defendant owed the plaintiff a duty of

reasonable care under the circumstances.



       Certified question answered.



       WEXSTTEN 1 , J., concurs.



       JUSTICE SPOM ER, dissenting:

       I respectfully dissent, as the majority's decision contradicts long-standing 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,

       1
           Justice Hopkins participated in oral argument. Justice Wexstten was later substituted

on the panel and has read the briefs and listened to the audiotape of oral argument.

                                                12
that are so obvious that any child can be expected to know to avoid them. Slip op. at 6. 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, 11 6-17 (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 the danger." (Emphasis added.) Slip op. at 7. 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


                                              13
State Bank & Trust, 169 Ill. 2d at 125. 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


                                               14
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 15 (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-


                                              15
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


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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


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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.




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