Henson v. Ziegler

Full title: RONALD G. HENSON et al., as Independent Co-Adm'rs of the Estate of Rebecca…

Court: Appellate Court of Illinois, Third District. Judgment affirmed

Date published: May 14, 1996

665 N.E.2d 877 (Ill. App. Ct. 1996)

665 N.E.2d 877

Opinion

No. 3-94-0324

Opinion filed May 14, 1996.

Appeal from the Circuit Court of Marshall County; the Hon. Robert A. Barnes, Jr., Judge, presiding.

Patrick J. Murphy (argued), of Law Offices of Kevin R. Galley, of Lacon, for appellants.

Daniel Johns (argued), of Westervelt, Johnson, Nicoll Keller, of Peoria, and Michael T. Reagan, of Herbolsheimer, Lannon, Henson, Duncan Reagan, P.C., of Ottawa, for appellees.

PRESIDING JUSTICE BRESLIN delivered the opinion of the court:

The plaintiffs, Ronald and Alice Henson, brought this wrongful death action following the drowning of six-year-old Rebecca Henson in an above-ground swimming pool owned by the defendants, Danny and Kathy Ziegler. The defendants moved for summary judgment, arguing that they owed no duty of care to Rebecca, inasmuch as the swimming pool was an open and obvious danger that they reasonably expected Rebecca to avoid. The trial court agreed and granted summary judgment to the defendants.

In Henson v. Ziegler, 269 Ill. App.3d 439, 646 N.E.2d 643 (1995), we held that an above-ground swimming pool was not an open and obvious danger to a six-year-old girl and, thus, reversed the trial court's grant of summary judgment. The supreme court vacated our decision and remanded it for us to reconsider the issue in light of Mt. Zion State Bank Trust v. Consolidated Communications, Inc., 169 Ill.2d 110, 660 N.E.2d 863 (1995). After reviewing Mt. Zion, we are constrained to abandon our prior decision and to affirm the trial court's grant of summary judgment.

The court in Mt. Zion squarely held that an above-ground swimming pool was an open and obvious danger to a six-year-old child. Mt. Zion, 169 Ill.2d at 120, 660 N.E.2d at 870. As a result of the supreme court's decision, landowners in this State owe no duty to six-year-old children to protect them from dangers associated with above-ground swimming pools.

The court's holding in Mt. Zion compels a finding in this case that the defendants owed no duty of care to six-year-old Rebecca to protect her from dangers associated with their pool. The plaintiffs therefore cannot establish negligence on the defendants' part, and the trial court was correct to grant summary judgment to the defendants.

The judgment of the circuit court of Marshall County is affirmed.

Affirmed.

HOLDRIDGE, P.J., and LYTTON, J., concur.