Legal Memorandum: Obviousness of Risk to a Child in IL

Issue: In Illinois, can the court use ‘objective standards’ to determine whether a child can determine an obvious risk to himself?

           The argument is that certain risks are recognized universally, as matters of common experience.  This test is based primarily on language from Kahn v. James Burton Co., 5 Ill. 2d 614, 126 N.E.2d 836 (1955) as interpreted in Corcoran v. Village of Libertyville, 73 Ill. 2d 316, 383 N.E.2d 177, 180 (1978), and by reference to the following language from the Restatement (Second) of Torts:  “There are many dangers, such as those of fire and water, or of falling from a height, which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed at large.”  Restatement (Second) of Torts § 339, comment j at 203 (1966).

Illinois courts now recognize that some risks cannot be said to be obvious as a matter of law and that in those cases a factual determination based upon the knowledge of the actual parties is necessary.  See Engel v. Chicago & N.W. Transp. Co., 186 Ill. App. 3d 522, 542 N.E.2d 729 (1st Dist.), appeal denied, 128 Ill. 2d 662, 548 N.E.2d 1068 (1989).

In Engel the court determined it could not rule as a matter of law that the risk of hopping trains was obvious to a twelve year old who on many occasions had watched others, including employees of the defendant, hopping rides.  The court looked at the knowledge and experience of the particular child, not children as a class.  The […]