Tuesday, October 6, 2009

A Pile Of Dirt, A Bicycle and A Duty of Care

For a kid there are few things more fun and exciting than a bicycle and a pile of dirt. It's messy, it's exciting and it's simple. The problem, however, is that it often presents a young child with some serious danger. Speaking from the experience of my much younger self, a pile of dirt offers a kid the chance to fly, the mound providing a ready-built ramp for aerial tricks and stunts. Unfortunately, the fun sometimes ends with broken bones, serious cuts and gashes, sprains and even head injuries. I remember an incident from my own childhood in which a friend and I created a ramp from a pile of dirt at the bottom of a steep street. I went barreling down the road, onto and over the dirt pile. I remember being terror-struck as I flew through the air and eyed a bunch of cinder blocks haphazardly strewn in my poorly anticipated landing zone. The impact against the hard blocks broke my leg.

What duty does the private landowner owe to children engaged in this sort of bicycling on his or her property? The answer boils down to foreseeability. In Grant v. South Roxana Dad's Club, 381 Ill.App.3d 665, 886 N.E. 543 (5th Dist. 2008) an 8 year old boy was seriously injured while using a pile of dirt as a bike ramp in the parking lot of a privately owned playground that was open to the public. In response to the lawsuit filed by the boy's parents, the defendant landowner asserted that the case should be dismissed because the pile of dirt was an open and obvious danger that even an 8 year old could appreciate. If the child chose to risk launching himself through the air via the dirt mound, the landowner felt it should not be held responsible where injury resulted. The problem for the landowner, however, was that it knew ahead of the boy's accident that children were legally on its property, engaged in dirt jumping and that they were likely to get hurt while doing so. The appellate court noted that while the dirt was perhaps open and obvious, an 8 year old boy may not fully appreciate the danger of using it as a bicycle ramp. In any event, the Court stated that the ability of the boy to have recognized the danger was not the only issue in determining whether the landowner had a duty to correct or warn against the hazard. The Court stated, "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." Grant, 381 Ill.App.3d at 670. The Court found it damning to the landowner that the park's commissioner testified that he had seen children jumping their bikes on the dirt, had shooed them away because he recognized they could get hurt and observed them return to the mound with their bicycles despite his admonition. In light of that knowledge, the Court held that the danger to the boy was foreseeable and that the landowner, therefore, owed him a duty to remove the hazard, especially given the nominal cost involved in dismantling the pile by just spreading the dirt around.

In Grant, the boy was legally permitted to be on the property at the time he was injured. But what if he had been a trespasser? Again, knowledge is key. Given the facts presented in that case, the landowner still could have been held liable. The general rule in Illinois is that a landowner owes no duty of care to trespassers except to avoid purposefully injuring them. However, our courts have carved out a "frequent trespass exception" to this rule. "Under this exception, a landowner is liable for injuries to a trespasser proximately caused by its failure to exercise reasonable care in the course of its activities, where the landowner knows, or should know from the facts within his knowledge, that trespassers are in the habit of entering his land at a particular point or of traversing an area of small size." McKinnon v. Northeast Illinois Regional Commuter Railroad Corporation, 263 Ill.App.3d 774, 777, 635 N.E.2d 744 (1st Dist. 1994). A failure to object to trespassers coming on the land may be viewed as "tacit permission" for them to do so. The landowner may be liable to such "tolerated intruders" for injury "where the harm to be anticipated from a risk for which the defendant is responsible outweighs the inconvenience of guarding against it." Id. at 778. The facts presented in Grant were that the landowner knew the boys continuously came onto its property specifically to jump their bikes on the pile of dirt. The park commissioner had seen them do so on more than one occasion. The commissioner had asked the boys to leave on one occasion, but on others he failed to do so. He testified that he saw the boys return to the pile with their bikes even after he asked them to leave. After the boy suffered his injury the dirt pile was spread out with little cost or effort. Pursuant to the "frequent trespass" exception, the landowner in Grant could have been held liable under these facts even if the injured boy had been a trespasser. The owner know the boys continuously entered a specific portion of its property to play on the dirt mound. Also, the cost of preventing the harm, i.e. by flattening the pile, was slight.

Children on their bicycles tend to be endlessly creative, and that's a good thing. Kids will always gravitate toward danger. As parents, we of course hope they will survive their natural inclinations for fun and adventure seeking. Landowners must recognize that they simply cannot turn a blind eye to children playing on their property. There is no need to be the angry neighbor who constantly yells at children to stay away. At the same time, if there is a dangerous condition on your property that you know children encounter you must take reasonable steps to correct the hazard.
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