Toney v. Mazariegos
116 Ill. Dec. 820, 519 N.E.2d 1035, 166 Ill. App. 3d 399 (1988)
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Rule of Law:
When children are reasonably expected to be in the vicinity, a motorist must exercise greater care for their safety than for adults, and in Illinois, children under the age of seven are legally deemed incapable of contributory negligence as a matter of law, a rule unaffected by the adoption of comparative negligence.
Facts:
- On May 9, 1982, five-year-old Fridae Toney and her ten-year-old sister, Shenea Toney, crossed to the east side of South Second Avenue in Maywood to buy ice cream from an ice cream truck.
- Shenea sent Fridae back across the street to obtain more money.
- Fridae then walked into the street from in front of the ice cream truck.
- Jose M. Mazariegos, a Maywood police officer, was driving his squad car north on Second Avenue at about 15 mph, observing the ice cream truck 75 yards ahead and anticipating the presence of children.
- A witness, Tina Olison, observed Officer Mazariegos looking at her as he passed her house, three houses from the collision, and saw Fridae make a half-circle, apparently attempting to turn back, when she was struck.
- Officer Mazariegos testified he did not see Fridae until she hit the right front fender of his vehicle.
- Fridae Toney sustained a fractured jaw, required 13 days of hospitalization (including four in intensive care), and had her mouth wired for six to eight weeks.
Procedural Posture:
- Fridae Toney, by her mother, brought a personal injury action against Jose M. Mazariegos and the Village of Maywood in the circuit court of Cook County.
- A bench trial was held, during which the trial court found Jose M. Mazariegos' negligence to be the proximate cause of the accident.
- The trial court entered a judgment against both defendants for $15,010.
- Fridae Toney filed a post-trial motion for a new trial on damages, which the trial court sustained by increasing the judgment amount to $20,010.
- Defendants appealed the judgment to the Appellate Court of Illinois, First District, Second Division.
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Issue:
Did the trial court err in finding a motorist negligent for striking a five-year-old child who darted into the street, and should Illinois' adoption of comparative negligence abolish the rule that children under the age of seven are incapable of contributory negligence as a matter of law?
Opinions:
Majority - Presiding Justice Lorenz
No, the trial court did not err in finding the motorist negligent, nor should the Illinois rule deeming children under seven incapable of negligence be abolished. The court found that where children are reasonably expected to be present, a motorist must exercise greater care for their safety, as their unpredictable conduct serves as a warning. Officer Mazariegos himself testified he anticipated children, yet did not see Fridae until impact, despite clear conditions and witness testimony suggesting he was not maintaining a proper lookout. The trial court's conclusion that Mazariegos failed to keep a proper lookout and was driving too fast for conditions was not contrary to the manifest weight of the evidence (citing Stowers v. Carp, Cooper v. Miller, Figarelli v. Ihde). Regarding the child's negligence, the court affirmed the rule that children under the age of seven are legally incapable of negligence in Illinois. This rule, based on the common law exemption of infants from criminal responsibility, has been consistently followed and recently reaffirmed by the Illinois Supreme Court in Mort v. Walter, even after the adoption of comparative negligence. As an intermediate appellate court, it would not disturb such a recently affirmed supreme court rule. The court also rejected arguments concerning governmental immunity, the trial court's increase of damages (due to it being a bench trial and lack of transcript), the consideration of medical expenses (waived by defendants' failure to object), and the untimeliness of a post-trial motion for leave to file a third-party contribution complaint (citing Laue v. Leifheit and Carter v. Chicago & Illinois Midland Ry. Co.).
Analysis:
This case significantly reaffirms that the Illinois rule precluding a finding of contributory negligence for children under seven remains robust, unaffected by the shift to comparative negligence. It solidifies the heightened duty of care owed by motorists in areas where children are anticipated, setting a high standard for vigilance. The decision also underscores critical procedural points for litigation, highlighting the importance of timely objections and motions, particularly concerning damages and contribution claims, to avoid waiver on appeal.
