Green v. Chicago Park District

618 N.E.2d 514, 248 Ill. App. 3d 334, 187 Ill. Dec. 923, 1993 Ill. App. LEXIS 810
CourtAppellate Court of Illinois
DecidedJune 7, 1993
Docket1 — 92—0640
StatusPublished
Cited by8 cases

This text of 618 N.E.2d 514 (Green v. Chicago Park 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
Green v. Chicago Park District, 618 N.E.2d 514, 248 Ill. App. 3d 334, 187 Ill. Dec. 923, 1993 Ill. App. LEXIS 810 (Ill. Ct. App. 1993).

Opinion

PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Louise Green brought a second-amended complaint against the Chicago Park District on behalf of her minor son, Christopher, for injuries he sustained after falling from a slide in a park playground. She also filed a third-party complaint to recover medical expenses that she alleged were necessary to care for Christopher. After the jury returned with verdicts in favor of Christopher and Louise, the trial court entered judgment in their favor in the amount of $68,500 and $10,283.10, respectively. The trial court denied the park district’s post-trial motion seeking a judgment notwithstanding the verdict (judgment n.o.v.) or alternatively a new trial.

The park district now appeals the denial of its motion for judgment n.o.v. or a new trial. It contends that the trial court erred when it did not grant its motion for judgment n.o.v. because the evidence presented at trial was legally insufficient to support the verdict in favor of plaintiffs on a claim of willful and wanton conduct. (Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 412 N.E.2d 447.) The park district asserts that the heart of a willful and wanton charge is that the defendant intentionally desired to cause harm or possessed a deliberate and conscious disregard for the plaintiff’s safety. It argues that such a “state of mind” was not present here because plaintiffs failed to establish that the condition of the slide represented an “impending danger” or that the park district had actual or constructive notice of an impending danger prior to the accident. It further contends that, at most, the park district’s conduct constitutes only negligence and that Christopher may have a potential negligence claim against the manufacturer of the slide, rather than a willful and wanton claim against it. Thé park district adds that by showing a regular inspection of the playground equipment, it negated the possibility for plaintiffs to show “utter indifference.” Finally, they maintain that the jury verdict is against the manifest weight of the record evidence, which entitles it to a new trial. See Tedrowe v. Burlington Northern, Inc. (1987), 158 Ill. App. 3d 438, 511 N.E.2d 798.

The standard of review for denial of a motion for judgment n.o.v. is well settled. A judgment n.o.v. can only be granted where all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.

In reviewing the record evidence and applying the Pedrick standard to the instant facts, we find that the trial court did not err by denying the park district’s motion for judgment n.o.v.. As stated, the park district asserts that plaintiffs failed to establish or sustain their claim sounding in willful and wanton misconduct.

As a local public entity, the park district is entitled to the protection of the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (Ill. Rev. Stat. 1987, ch. 85, par. 1 — 101 et seq.). Section 3 — 106 of the Act provides:

“Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.” Ill. Rev. Stat. 1987, ch. 85, par. 3 — 106.

The Act defines willful and wanton conduct as a course of action which shows an actual or deliberate intention to cause harm or a course of action which shows an utter indifference to or conscious disregard for the safety of others. (Ill. Rev. Stat. 1987, ch. 85, par. 1— 210.) Initially, the Illinois Supreme Court explained that “willful and wanton negligence” means “failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness, or carelessness when it should have been discovered by ordinary care.” (Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 429, 412 N.E.2d 447.) Recently, however, the supreme court reexamined the meaning of the term “willful and wanton” under Illinois law. In Burke v. 12 Rothschild’s Liquor Mart, Inc. (1992), 148 Ill. 2d 429, 593 N.E.2d 522, the court stated that willful and wanton conduct approaches the degree of blame associated with intentional harm, because the defendant deliberately inflicts a highly unreasonable risk of harm upon others in conscious disregard of that risk. (Burke, 148 Ill. 2d at 448.) The court further recognized the Restatement (Second) of Torts’ characterization of such conduct as “reckless.”

In quoting the Restatement, the Burke court explained that' “ ‘[reckless misconduct] differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man.’ ” (Emphasis added.) (Burke, 148 Ill. 2d at 449-50, quoting Restatement (Second) of Torts §500, Comment g, at 590 (1965).) In addition to the Burke decision, we have examined several opinions of this court that have dealt with the issue of whether or not plaintiff sustained his or her claim sounding in willful and wanton negligence against a public entity. Our research has revealed that the majority of the cases on appeal came to this court in a different procedural posture, in instances where the trial court had granted defendant’s motion for summary judgment in reliance on the Act or where the trial court had dismissed plaintiff’s cause of action for failure to allege sufficient facts to constitute a cause of action. The present case proceeded to trial before a jury.

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Bluebook (online)
618 N.E.2d 514, 248 Ill. App. 3d 334, 187 Ill. Dec. 923, 1993 Ill. App. LEXIS 810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-chicago-park-district-illappct-1993.