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Are landowners and Lessees Responsible for Children Drowning in Ice-Covered Water?

Most children are naturally curious and enjoy exploring their surroundings, even when they recognize that doing so could be dangerous. Because of this, parks often contain fences that prevent children from leaving the grounds and playing in hazardous areas. In the case of Yacoub v. Chicago Parks District, the Illinois Appellate Court considers whether landowners and lessees are responsible for maintaining fences to prevent children from leaving a property and encountering dangerous conditions.

The Facts

On January 30, 1987, the Yacoub children—Mohammad (age nine), Jonathon (age eight), and Vicktoria (age five)—were playing on a swing set in Chicago’s West River Park when they discovered a hole in the park’s chain-link fence. They crawled through this hole to investigate an abandoned car that was located near the Chicago River.

As the children approached the water, they reminded each other that it was dangerous; their parents had previously warned them about the potential of drowning. Even so, the children walked onto the river, which was partially covered in ice. They didn’t encounter any difficulties at that time and returned to the swing set without incident. Later that day, however, they once again crawled through the fence hole. As they neared the frozen water, they once again noted that the river is dangerous.

When the children arrived at the water, they ran and slid on the ice until Jonathon fell into a large patch of open water. He called for his brother to grab his arm and pull him to safety; instead, Mohammad jumped into the river and drowned. Viktoria then helped Jonathan out of the water.  As they moved away from the river, she noticed his gloves on the ice and went to retrieve them. She then fell into the river and also drowned.

Mr. Yacoub, the children’s father, filed a wrongful death lawsuit against the Chicago Park District and the Metropolitan Water Reclamation District (MWRD), who had leased the land to the Park District. He alleged that both of these municipal corporations were responsible for the deaths due to their failure to maintain, inspect, and repair the fence.

Landowner and Lessor Responsibility for Injuries and Deaths Occurring on the Property

To win a wrongful death lawsuit, plaintiffs must prove that the property owner had a duty to protect the victim and safeguard against the hazard that caused the death. If plaintiffs are unable to prove that the property owner had a duty, they cannot recover damages.

In general, Illinois landowners have no duty to protect against death or injuries caused by a dangerous or defective condition at a property that is under a tenant’s control. However, there are some exceptions to this rule: when the owner knows (or should know) of a latent defect that exists at the time of leasing, when the owner fraudulently conceals a dangerous condition, when the defect causing harm amounts to a nuisance, when the owner promises to repair a condition at the time of leasing, and when the owner violates a law that is intended to protect the tenant.

Furthermore, people who control land in Illinois (whether as property owners or as lessees) usually have a duty to protect when a dangerous condition exists at a property that is frequently visited by children who are unable to understand and avoid the hazard because of their age and low maturity level.

However, property owners and lessees are not typically obligated to protect against injury or death when a potential hazard is “open and obvious”—in other words, when the average person would recognize a situation as dangerous. According to Illinois law, property owners are not normally liable for injuries or deaths that occur when a person engages in activity in the presence of a known and obvious hazard.

The Decision

In response to Mr. Yacoub’s wrongful death lawsuit, the Chicago Park District and MWRD asked the trial court to grant summary judgment, arguing that all the evidence produced by Mr. Yacoub was insufficient for a jury to find in his favor. The court agreed and dismissed the case.

Mr. Yacoub then appealed to the Illinois Appellate Court, arguing that MWRD (who leased the land to the Chicago Park District) had a duty to repair the fence and surrounding area at West River Park because it maintained partial control of the land. Specifically, he said MWRD’s right to construct improvements, access the property’s sewer operations, and approve proposed Park District improvements gave it control over the park.

The appellate court disagreed, noting that nearly all landlords reserve the right to enter premises to make improvements; similarly, most landlords prevent tenants from making improvements without their approval. The court said that these provisions did not give MWRD control of the land. Therefore, MWRD had no duty to prevent the Yacoub children’s accident and could not be held liable for injuries or deaths at West River Park.

In addition, the appellate court found that the Park District had no duty to protect the Yacoub children from death or injury in this situation because the danger associated with moving water and a partially frozen river is “open and obvious.”  Prior cases had held that children of this age recognize and appreciate the open and obvious danger of both water and ice-covered water. Moreover, the court noted that the Yacoub children in particular were aware of the dangers associated with playing on and near the river because their parents had warned them and because they had twice discussed the potential hazards on the day of the accident.

Mr. Yacoub claimed the open and obvious rule did not prevent him from recovering damages for his children’s death, and he cited the case of Ward v. K Mart to support his position. In that case, the court stated that landowners are liable for injuries caused by open and obvious conditions in situations where the owner anticipates the harm. However, the appellate court found that Ward did not apply in the case of the Yacoub deaths since the Ward court also found that a property owner has no duty to remedy a condition with obvious risks that children would typically avoid, such as open water on a partially frozen river.

Mr. Yacoub further claimed that the Park District failed to uphold its duty to repair the hole in the fence. As a result of this failure, his children gained access to the river. Therefore, he argued, the Park District was responsible for his children’s deaths. Again, the appellate court disagreed with this rationale, noting Mohammed and Vicktoria were not killed by the fence. Additionally, the court said that the fence hole did not make the river’s hazards any less obvious.

Finally, Mr. Yacoub argued that previous cases had required property owners to repair fence holes to protect children from dangers; because of this, the Park District had a duty to repair the fence and protect his children from the river. He supported his argument by citing Engel v. Chicago & North Western Transportation and LaSalle National Bank v. City of Chicago. Both of these cases held that children aren’t aware of the dangers of train flipping; therefore, the defendants had a duty to repair fences in order to protect children from harm. However, the court once again disagreed with Mr. Yacoub and quoted from the Engel decision: “The policy determination that most children are presumed to know the risks of injury inherent in certain types of activities, such as playing with fire or playing in bodies of water, does not per se extend to the train flipping cases.” In other words, a body of water presents an open and obvious danger of the type property owners are not obligated to protect against. For all of these reasons, the appellate court agreed with the trial court’s decision to grant summary judgment.

Conclusion

In most cases, property owners and lessees are not responsible for protecting children from dangers that are considered to be “open and obvious,” such as a partially frozen river. Therefore, they are not liable when children ignore the risks associated with such dangers, even when doing so results in death or serious injury.

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