by W. Anthony Andrews (Winter 2017)

There is a long-standing legal principle that property owners do not need to warn guests about “open and obvious” dangers on their property. A recent decision by the Illinois Appellate Court confirmed that landowners are safe from liability under those circumstances even if the guest is a young child. In Perez v. Heffron, 2016 IL App (2d) 160015, the court found a homeowner was not liable for the drowning death of a two-year-old boy while his family attended a yard sale on the homeowner’s property.

In June of 2013, the defendant homeowner held a yard sale at his home in Bartlett. The majority of the items for sale were displayed in the front yard. There were, however, additional items for sale in the backyard, where an above-ground pool was located. To get to the backyard from the front yard, a pedestrian had to pass through a wooden gate and follow along a single-file walkway around the side of the house. Surrounding the pool was a gated deck, with stairs leading from the deck down to a patio area, where items were grouped for sale. The homeowner had deliberately placed a clothes rack in front of the deck stairs to prevent yard sale patrons from going onto the pool deck. The homeowner also incorrectly assumed the gate was latched, as it had been the day before.

Miguel Fernandez attended the sale with his extended family, including his three-year-old son, Edgar. While the family was looking at items in the front yard, Edgar was playing nearby. The homeowner informed the Fernandez family that there were more items for sale in the backyard. Miguel stayed in front with Edgar while the others walked to the backyard. Edgar, however, pulled on his father, indicating that he also wanted to go to the backyard. Miguel called to his family to let them know that he was leaving Edgar in their care, but they did not hear him. They thought Edgar was still with Miguel. No one realized the boy was missing until they found him drowned in the pool. The child’s mother sued the homeowner for wrongful death.

The trial court found in favor of the homeowner, so Edgar’s family appealed, contending: (1) the solar cover hid the danger of drowning to Edgar and the family; (2) the homeowner created a “distraction” by cluttering the backyard with merchandise and hiding the stairway entrance to the pool; and (3) the law requiring that young children recognize and protect themselves from the danger of drowning should be changed.

The Illinois Appellate Court rejected all three arguments and affirmed the judgment in favor of the homeowner. First, the court noted that the swimming pool presented an open and obvious danger. Although the homeowner placed a plastic cover on the pool’s surface, the existence of an above ground pool was still obvious to anyone who walked to the backyard. The court added that the clothes racks were not a distraction because they did not hide the large pool. Additionally, Miguel’s sister admitted that she saw the pool and was able to supervise her own toddler granddaughter. The only reason she did not watch Edgar was because she did not know he was there, not because the yard sale distracted her.

Finally, the court refused to change the “open and obvious” standard for children under the age of seven. The court pointed out that young children are presumed to be under the supervision of their parents. If a child is too young to appreciate the open and obvious nature of the pool, the duty to supervise the child lies with the accompanying parent. Edgar’s tragic death was not the result of the homeowner’s negligence, but rather Miguel’s mistake of not watching his son. Failure of a parent to supervise the child is not foreseeable. Therefore, the homeowner is not required to anticipate the parent’s negligence and to guard against it.

As harsh as this ruling is, it is consistent with Illinois law that provides that landowners are not legally responsible for injuries that occur due to hazards on their land that they would reasonably expect others to become aware of and head.