Barrett v. Forest Preserve District

593 N.E.2d 990, 228 Ill. App. 3d 975, 171 Ill. Dec. 170, 1992 Ill. App. LEXIS 748
CourtAppellate Court of Illinois
DecidedMay 15, 1992
DocketNo. 1—90—2919
StatusPublished
Cited by5 cases

This text of 593 N.E.2d 990 (Barrett v. Forest Preserve District) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barrett v. Forest Preserve District, 593 N.E.2d 990, 228 Ill. App. 3d 975, 171 Ill. Dec. 170, 1992 Ill. App. LEXIS 748 (Ill. Ct. App. 1992).

Opinion

JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff, Angela Barrett, brought this action seeking recovery for personal injuries sustained while on the premises of the defendant, the Forest Preserve District of Cook County. Upon motions by the defendant, the trial court dismissed plaintiff’s negligence claim and granted summary judgment in favor of the defendant on the claim for willful and wanton conduct. In entering summary judgment on the willful and wanton count, the trial court found that the record did not support the conclusion that plaintiff was engaged in an intended and permitted use of forest preserve property at the time of the incident in which plaintiff was injured. The trial court found further that the parties had presented no evidence to suggest that there existed a concealed danger which caused plaintiff’s injuries.

Plaintiff challenges the trial court’s entry of summary judgment on her claim for willful and wanton conduct. On appeal, plaintiff contends that she had established the existence of a duty owed to her by defendant and that defendant was not relieved of liability for her injuries by the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1983, ch. 85, par. 1 — 101 et seq.) or by section 62 of the ordinances of the Forest Preserve District.

The record indicates that plaintiff filed a two-count complaint against defendant seeking damages for injuries sustained by her at Crooked Creek Woods in the Palos Forest Preserve of Cook County. Plaintiff asserted that she was injured on March 30, 1983, when she fell from a rope swing into a ravine located on the forest preserve property. The complaint alleged that the swing from which plaintiff fell was located along the side of a steep incline at or near the bank of a stream commonly known as Crooked Creek and that the swing consisted of a tall tree to which a 30-foot rope had been tied. The complaint alleged further that because the defendant, as a public entity, was insured under a public liability insurance policy, defendant waived the defenses and immunities which it might have asserted in defense of the instant action.

Count I of the complaint alleged that plaintiff’s injuries resulted from defendant’s negligence in maintaining the tree and the surrounding area. Count II alleged that plaintiff’s injuries were caused by willful and wanton conduct on the part of defendant in that defendant failed to remedy the dangerous condition of the rope swing although it had notice of the condition.

On January 29, 1986, the trial court dismissed with prejudice count I of the complaint, which alleged negligence by defendant. This order was not appealed in 1986, and its propriety is not challenged in the notice of appeal presently before this court.

On December 22, 1989, defendant obtained leave to file instanter an amended answer to count II of the complaint which denied plaintiff's allegations of willful and wanton conduct. This amended answer also asserted as affirmative defenses that plaintiff’s injuries were proximately caused by her own negligence and by her failure to abide by section 62 of the ordinance of the Forest Preserve District of Cook County, which provided that no person shall engage in any sport, game or amusement or exercise within the property of the defendant except in such places as may be provided or designated by the board of commissioners of the defendant and in accordance with the rules and regulations prescribed by the board.

Defendant also filed on December 22, 1989, a motion for summary judgment as to count II of the complaint. This motion asserted that, as a matter of law, defendant owed no duty to the plaintiff because the risk posed by the rope swing was open and obvious and because plaintiff did not allege that she was injured as a result of a hidden danger attendant to the rope swing.

Following a hearing on May 16, 1990, the trial court entered summary judgment in favor of defendant, finding that the record did not support the conclusion that plaintiff was engaged in an intended and permitted use of forest preserve property when she fell from the rope swing. The trial court found further that there was no evidence to suggest that there existed a concealed danger which caused plaintiff’s injuries.

On June 15, 1990, plaintiff moved for reconsideration of the trial court’s entry of summary judgment as to count II. In this motion, plaintiff maintained that a question of fact existed as to whether the rope swing presented a concealed danger and as to whether plaintiff was engaged in an intended or permitted use of the rope swing. Plaintiff also asserted that she had discovered new information which indicated that defendant had prior knowledge of the existence of rope swings and other accidents in the area where plaintiff was injured.

Defendant’s response to the motion for reconsideration alleged that plaintiff had not raised any new evidence that could not have been presented before judgment was entered. Thereafter, plaintiff filed an amended motion for reconsideration, requesting the trial court to consider information presented in another cause before the law division of the circuit court of Cook County which established that defendant had knowledge of other accidents involving rope swings on its premises.

On September 28, 1990, the trial court denied plaintiff’s amended motion to reconsider, and plaintiff has appealed.

We initially consider plaintiff’s assertion that she had established a duty owed to her by defendant upon which liability could be predicated.

Under section 3 — 106 of the Tort Immunity Act, a local public entity is not liable for any injury resulting from a condition on public property intended or permitted to be used for recreational purposes unless the local entity is guilty of willful or wanton conduct which proximately caused the injury. (Ill. Rev. Stat. 1983, ch. 85, par. 3— 106.) Willful and wanton conduct is defined as “a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property.” (Ill. Rev. Stat. 1989, ch. 85, par. 1 — 210.) In order to recover under count II of the complaint, plaintiff must first establish a duty owed to her by defendant as well as willful and wanton conduct on the part of the defendant. Newby v. Lake Zurich Community Unit District 95 (1985), 136 Ill. App. 3d 92, 97, 482 N.E.2d 1061.

It is established that customary principles of negligence are applied when assessing the liability of owners, occupiers, or parties in control of premises upon which a minor is injured. Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 233, 564 N.E.2d 778; Cope v. Doe (1984), 102 Ill. 2d 278, 286, 464 N.E.2d 1023; Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 326, 383 N.E.2d 177; Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 625, 126 N.E.2d 836; Scarano v.

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Barrett v. FOREST PRESERVE DIST. OF COOK CTY.
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Cite This Page — Counsel Stack

Bluebook (online)
593 N.E.2d 990, 228 Ill. App. 3d 975, 171 Ill. Dec. 170, 1992 Ill. App. LEXIS 748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barrett-v-forest-preserve-district-illappct-1992.