Plaintiff, as a father of his deceased child, filed a complaint alleging theories of breach of fiduciary duty, violation of the Wrongful Death Act, willful and wanton conduct, and breach of contract to recover damages after his son went through a broken fence and drowned in a retention pond. The circuit court granted defendants’ motions to dismiss with prejudice for failure to state a cause of action. Plaintiff appealed, arguing that the trial court erred when it found that defendants did not owe a duty of care to the plaintiff due to the open and obvious danger of the retention pond. The appellate court affirmed, explaining that Illinois law does not impose a legal duty on owners and occupiers of property to safeguard children who encounter open and obvious risks on the property and that plaintiff failed to allege well-pled facts to support the distraction exception to the open and obvious doctrine and, likewise, that plaintiff did not plead sufficient facts to support his remaining claims. (MARTIN and D.B. WALKER, concurring)
Illinois Appellate Court
Civil Court
Open and Obvious Doctrine