However, Kahn has been discussed and applied in cases like this where the injured child is accompanied by a parent. See Perri, 335 Ill. App. 3d 825 (infant injured while accompanied by her parents at the defendant restaurant); Stevens, 219 Ill. App. 3d 823 (accompanied minor injured while a social guest at the defendants' home); Kay, 87 Ill. App. 2d 114 (same); Stankowitz v. Goldblatt Brothers, Inc., 43 Ill. App. 2d 173, 193 N.E.2d 97 (1963) (accompanied minor injured at the defendant department store). In light of the plaintiffs' contentions, we will assume without further discussion that the Kahn doctrine applies in this case.
A number other states have interpreted their UGMA statutes similarly. See, e.g., Gulmen v. Gulmen, 913 S.W.2d 852, 855 (Mo.App. 1995); Heath v. Heath, 193 N.E.2d 97 (Ill.App. 1986); Golden v. Golden, 434 So.2d 978, 979 (Fla.Dist.Ct.App. 1983); Jacobs v. Jacobs, 180 Cal.Rptr. 234 (Cal.App. 1982). ¶ 10 Ohio and Indiana decisions confirm that we should properly apply this principle under the PUTMA.
Defendants contend that this award is especially excessive in light of case law from Illinois and other jurisdictions. See House v. Stocker (1975), 34 Ill. App.3d 740; Hedrich v. Borden Co. (1968), 100 Ill. App.2d 237; Stankowitz v. Goldblatt Brothers, Inc. (1963), 43 Ill. App.2d 173; Gumbs v. Pueblo International, Inc. (3d Cir. 1987), 823 F.2d 768; Bonner v. United States (E.D. La. 1972), 339 F. Supp. 640; Coffil v. New Orleans Public Service, Inc. (La. App. 1984), 453 So.2d 1226; Cardwell v. Jefferson Rentals Division of J-R Equipment Corp. Assurance Co. (La. App. 1979), 379 So.2d 255; Stratton v. Webb (Miss. 1987), 513 So.2d 587; MFC Services v. Lott (Miss. 1975), 323 So.2d 81. Plaintiff Mondelli contends that the damages award is not excessive in light of the fact that she, who, prior to the accident, was a healthy, active 34-year-old woman, "is now forever unhealthy, suffering substantial and constant pain, severe limitations and ongoing expense and financial loss for the rest of her life.
Decedent, as other fare-paying passengers, could well have been considered an invitee to whom the duty of ordinary care was owed by defendant. ( Stankowitz v. Goldblatt Brothers, Inc. (1963), 43 Ill. App.2d 173, 179, 193 N.E.2d 97; Schoondyke v. Heil, Heil, Smart Golee, Inc. (1980), 89 Ill. App.3d 640, 646, 411 N.E.2d 1168.) The court so found and in doing so did not err.
The defendant taverns had that duty ( Hayes v. O'Donnell (1979), 76 Ill. App.3d 695, 395 N.E.2d 184; Lessner v. Hurtt (1977), 55 Ill. App.3d 195, 371 N.E.2d 125), and we agree with the plaintiffs that the children were invitees while they were in the taverns' parking lots, for they had accompanied their father to the businesses. (See Stankowitz v. Goldblatt Bros. (1963), 43 Ill. App.2d 173, 193 N.E.2d 97.) In Hayes and Lessner taverns were found liable for failing to protect patrons from the acts of belligerent third persons.
We agree with the plaintiffs that a person owes to all others the duty of exercising care to guard against injury which may naturally flow as a reasonably probable and foreseeable consequence of his action. ( Stankowitz v. Goldblatt Bros., Inc. (1963), 43 Ill. App.2d 173, 193 N.E.2d 97.) From this truism, however, the plaintiffs conclude that a person's duty is merely a question of foreseeability — a factual determination to be made by the jury or the court as the trier of the facts. Such is not the law.
The nature of the claimed defect and the surrounding circumstances in the instant case are consistent with the reason for this general rule rather than its exception. Schwartz v. Peoples Gas Light Coke Co., 35 Ill. App.2d 25, 32-33, 181 N.E.2d 826; Shipley v. Southern Pacific Co., 44 Ill. App.2d 1, 7-9, 193 N.E.2d 862; Redmond v. Huppertz, 71 Ill. App.2d 254, 257-258; Jines v. Greyhound Corp., 33 Ill.2d 83, 87-88, 210 N.E.2d 562. See, also, the concurring opinion in Stankowitz v. Goldblatt Bros., Inc., 43 Ill. App.2d 173, 182, 193 N.E.2d 97, and cases there cited. Again, the cases cited by plaintiff are distinguishable on the facts.
The particular ingredient in the perfume which caused the burns was not established. The plaintiff there introduced several witnesses who had suffered similar burns from the perfume and the court held that such evidence was properly submitted to the jury to show the probability that the burns were caused by some harmful ingredient in the perfume. Stankowitz v. Goldblatt Bros. Inc., 43 Ill. App.2d 173, 193 N.E.2d 97, involved a suit for personal injuries sustained by a small child when she came into contact with exposed electric wires connected with a water cooler which defendant maintained for its store customers. The only testimony as to the condition of the plug immediately after the occurrence in question, was that the hard rubber which covered the plug was pulled back and bare wires were exposed. The court said at page 99: "We believe that the nature of the testimony permits a reasonable inference that the defective condition of the plug pre-existed plaintiff's contact with it."
Evidence favorable to plaintiff's case was all that could be considered by the trial court in this inquiry. If there was a total failure to prove one or more of the essential elements of the plaintiff's case, specifically, as contended by defendant Nielsen, negligence on its part, the motion should have been allowed. (Moss v. Wagner, 44 Ill. App.2d 180, 194 N.E.2d 481 (1963); Stankowitz v. Goldblatt Bros., Inc., 43 Ill. App.2d 173, 193 N.E.2d 97 (1963).) The court may not consider conflicts in evidence, its weight or preponderance, or the credibility of witnesses, but may consider only that evidence which is most favorable to the party against whom such a motion is directed, together with all reasonable inferences that may be drawn therefrom.