Key point 10-11. A church may be legally responsible on the basis of negligent supervision for injuries resulting from a failure to exercise adequate supervision of its programs and activities.
An Illinois court ruled that a church was not liable for injuries sustained by a 13-year-old boy who fell 25 feet from a platform in a tree at the home of a church member during a bonfire activity sponsored by the church’s youth group.
A church’s youth ministry conducted a bonfire at a church member’s home. The homeowner had previously constructed a platform in a tree from which he had removed the upper branches and foliage. The platform was about 25 feet above the ground, and was reached by a ladder tied to the tree. The platform had a rail around it, but no other fall protection.
The platform had a triangular hole in it, and through the hole, was a metal “fire pole.” The pole was made out of sprinkler pipe, was affixed in concrete at the base, and was 3½ inches in diameter. The surface of the pole had oxidized. The ground around the pole was grass covered, and no force-absorbing material, such as sand or wood chips, had been placed around the bottom of the pole.
The homeowner explained that he built the platform and fire pole for his children. He testified that between 150 to 200 people had used the pole, all without injury. The homeowner was a construction contractor and was familiar with fall protection for working above the ground and had employed it in his work, but no fall protection was installed or available on the platform.
On the day of the bonfire, the church’s youth pastor arrived 15 to 30 minutes before the announced start of the event. Some of the parents stayed to socialize, others dropped their children off. One mother (the “plaintiff”) dropped off her 13-year-old son (the “victim”) and then went shopping nearby, intending to finish shopping and then return for the remainder of the event.
According to the youth pastor, the point of the event was the bonfire and indoor fellowship. The youth attending were not expected to play in the backyard, but were expected to roast marshmallows in the bonfire and to play in the basement, where pool and board games were available. After about an hour outside, the youth pastor went inside, planning to steer the event toward worship.
One of the youth came inside and alerted the youth pastor and the adults that the victim was hurt. The victim testified that he climbed up the ladder. The ladder had metal rungs, so his hands became cold. At the top, on the platform while waiting for his turn, he put on gloves. He testified that the gloves were like ski gloves, and were slick, possibly made of nylon. The victim testified that he waited his turn along with several other youth on the platform. When it was his turn, the victim grabbed the pole with his hands, but he did not wrap his arms or legs around the pole. As he began his descent, he lost control, grabbed for the edge of the platform but could not hang on, and he plummeted the rest of the way to the ground. He suffered serious injuries, including broken bones, resulting in a permanent limp and the insertion of a metal rod in one of his legs.
The plaintiff sued the church, its youth pastor, and the homeowner, claiming that their negligence caused the injuries.
The youth pastor and homeowner testified that, when the plans were made to use the property for the bonfire, they did not conduct an inspection of the property to determine if there were any unsafe conditions. Rather, the homeowner testified that he had a safe house, including the fire pole, because nobody had been injured using it up to that time.
The plaintiff’s expert witness, a park and recreation planner and consultant, testified that the fire pole was too wide, too high, and the landing area was too hard. He opined that the width of the pole, being almost twice the diameter that industry standards allowed in playground equipment, contributed to the accident because the excessive width of the pole decreased the strength of the user’s grip of the pole. He did not, however, offer any opinion about the effect of the victim’s gloves on his ability to grip the pole, but noted that any effect would depend on the type of glove, which he could not recall. He further testified that the fall height was much greater than industry standards allowed (five feet is the norm), and the landing area did not contain any force-mitigating substances, and these circumstances caused or contributed to the likelihood and severity of injury. The expert believed that the darkness could have contributed to the victim losing his grip on the pole because it obscured the size of the pole and its texture.
The trial court dismissed the plaintiff’s lawsuit, explaining that “defendants owed no duty to plaintiff based on the open and obvious nature of the platform and fire pole on the property.” The plaintiff appealed.
On appeal, the plaintiff argued that the trial court erred in holding that the platform and fire pole presented open and obvious conditions. The plaintiff further claimed that design flaws in the construction of the platform and the fire pole and the lack of lighting rendered the dangers hidden rather than open and obvious.
The appeals court’s ruling
The appeals court, in affirming the trial court’s dismissal of the case, explained:
As a general matter, the owner or possessor of land owes a visiting child the duty to keep the premises reasonably safe and to warn the visitor of dangerous nonobvious conditions, but if the conditions are open and obvious, the owner or possessor has no duty. . . . Generally, falling from a height is among the dangers deemed to be open and obvious and appreciable even by very young children. The risk that confronted the victim as he clambered up to the platform and attempted to use the fire pole was simply a fall from a height, and thus, was an open and obvious risk.
The court acknowledged that some exceptions exist to the impact of the “open and obvious” danger principle upon negligence claims. One of them pertains to persons who are distracted and thus unable to appreciate an open and obvious danger:
We conclude that there was no evidence of distraction presented in the record. The victim climbed up the ladder to the platform, some 25 feet above the ground. Once there, he waited in a line for the fire pole. He did not testify that any of the other persons in the line bothered or distracted him as he prepared to slide down the fire pole. Instead, he put on slick nylon gloves and attempted to slide down the pole by grasping the pole with only his hands. As he began his descent, he lost control, attempted to arrest his descent by grabbing the deck of the platform, failed, and fell from a height onto the ground. There is nothing in the evidence in the record to support a conclusion that he was distracted. . . . Rather, he was participating in using the fire pole as he intended. Indeed, he attributed his fall to losing his grip when he attempted to slide down the pole using only his hands and not wrapping his arms and legs around the pole. Accordingly, we hold the distraction exception does not apply here.
Plaintiff also claims that the darkness of the evening distracted the victim from perceiving the width of the fire pole and the height of the drop from the platform. We disagree. He had to have been acutely aware of the height of the platform, having climbed every inch of the 25-foot height up the ladder. As to the width of the pole, he would have perceived it as he grasped it. [The homeowner] testified that everyone he had observed use the pole had instinctually wrapped their arms and legs around it. The victim testified that he attempted to use only his hands to grip the pole for his descent, despite the fact that a number of other children had used the pole before him and he apparently had the opportunity to observe them while waiting his turn.
We also note that there is no evidence that the victim stepped through the opening while trying to use the fire pole. . . . Instead, he testified that he was able to negotiate his way to the pole and grasp it to begin his descent. Thus, there is no evidence that he simply stepped into the opening which went unperceived due to the darkness of the evening. Likewise, there is no evidence that one of the persons waiting for a turn distracted him so he stepped into the opening and fell. There is no evidence of distraction evident, so we reject plaintiff’s contention that he was distracted by the darkness and the other children.
What this means for churches
This case demonstrates the difficulty of proving negligence claims for injuries caused by “open and obvious” hazards unless concealed by a distraction such as darkness. Grosch v. Anderson, 2018 IL App (2d) 170707-U (Ill. App. 2018).