Blog

The Takeaway

Property owners owe no legal duty to safeguard unsupervised children who encounter open and obvious risks on the owner’s property, even if the child is too young to appreciate the danger. Instead, responsibility lies with the parent or caretaker.

Introduction

It’s a parent’s worst nightmare: their young child wanders off to nearby property and accidentally drowns in a body of water, be it a swimming pool, lake, retention pond, or even a puddle. But to what extent does the property owner owe a legal duty of care to the unsupervised child? In Purevdori v. Mission Hills Condominium T-2 Association, 2024 IL App (1st) 231693, the First District Appellate Court explores this question and ultimately concludes that bodies of water have long been held open and obvious dangers for which, absent extenuating circumstances, no legal duties can be imposed. The fact that the plaintiff was a young child unable to appreciate the danger did not negate such precedent, particularly because the child was unsupervised.

Background

In Purevdori, a four-year-old child, playing with a friend in his backyard, escaped his mother’s watchful eye and wandered to nearby, developer-owned property that contained a retention pond. He walked through a damaged portion of the developer’s fence, entered the retention pond, and tragically drowned.

The child’s father brought various counts of negligence and willful and wanton conduct against the developer and several other defendants primarily based on a failure to properly maintain the fence. The defendants filed a motion to dismiss, arguing, among other things, that they owed no legal duty to the child because the retention pond was an open and obvious danger and the child was left unsupervised. The trial court granted the defendants’ motion, and the plaintiff appealed.

Appellate Court’s Ruling

The appellate court affirmed the dismissal. According to the Purevdori court, there are several recognized obvious dangers including fire, drowning in water, and falling from a height. Purevdori, 2024 IL App (1st) 231693 at ¶ 21. “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.” Id.

The court outlined existing law on property owners’ duty of care to remedy dangerous conditions on land or otherwise protect children from injury resulting from such conditions. A duty will be imposed where:

1. the owner or occupier of the land knew or should have known that children habitually frequent the property,
2. a defective structure or dangerous condition was present on the property,
3. the defective structure or dangerous condition was likely to injure children because they are incapable, because of age and immaturity, of appreciating the risk involved, and
4. the expense and inconvenience of remedying the defective structure or dangerous condition was slight when compared to the risk to children. Id. at ¶ 20.

Additionally, the court noted that the reasonable foreseeability of harm test determines liability in negligence actions involving young children. The court cited the Illinois Supreme Court’s holding in Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 117 (1995), stating “[e]ven 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.” Purevdori, 2024 IL App (1st) 231693 at ¶ 21.

The court ultimately concluded no duty was owed due to “the lack of foreseeability of a lapse of parental supervision . . .” Id., ¶ 25. A possessor of land is free to assume that any child old enough to be allowed “at large” will appreciate obvious dangers. Id., ¶ 25. And to be allowed “at large” simply means the child is “unattended or ‘beyond the watchful eye of his parent.’” Id., ¶ 26 (citing Mostafa v. City of Hickory Hills, 287 Ill. App. 3d 160, 167 (1997)). “When this happens, courts have expressed a preference as a matter of public policy that the consequences that result from an encounter with an open and obvious condition should not fall on the owner or occupier of the property.” Purevdori, 2024 IL App (1st) 231693 at ¶ 26. Rather, it is more desirable to place the substantial burden of supervising children upon the parent or caretaker. Id.