Hanks v. Mount Prospect Park District

614 N.E.2d 135, 244 Ill. App. 3d 212, 185 Ill. Dec. 1, 1993 Ill. App. LEXIS 370
CourtAppellate Court of Illinois
DecidedMarch 19, 1993
Docket1-90-1321
StatusPublished
Cited by15 cases

This text of 614 N.E.2d 135 (Hanks v. Mount Prospect 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
Hanks v. Mount Prospect Park District, 614 N.E.2d 135, 244 Ill. App. 3d 212, 185 Ill. Dec. 1, 1993 Ill. App. LEXIS 370 (Ill. Ct. App. 1993).

Opinion

PRESIDING JUSTICE GORDON

delivered the opinion of the court:

In this negligence action, plaintiff appeals from an order of the circuit court granting summary judgment to defendants Mount Prospect Park District and Commonwealth Edison. For the reasons discussed below, we affirm.

On May 27, 1975, plaintiff Sherry Anne Hanks was struck by a car driven by defendant Sam Ursetto. Plaintiff, then five years old, lived with her family in an apartment in Mount Prospect. The apartment was owned and operated by defendants Di Mucci Home Builders, Inc., now d/b/a Radcliffe Development Corporation, and Salvatore and Robert Di Mucci as beneficiaries under trust No. 13906. The accident occurred while Sherry was crossing a private parking lot or driveway, also owned by the Di Mucci defendants, which was located immediately south of the apartment buildings. She had been playing in a playground located south of the parking lot on property owned by defendant, Commonwealth Edison, and leased to defendant, Mount Prospect Park District. According to her mother, Sherry had played in the playground on previous occasions. On this occasion, her mother had called to her from outside their apartment building to come inside, but had gone upstairs without waiting for her daughter and had left Sherry to cross the parking lot and driveway by herself. Sherry’s mother testified in her deposition that Sherry was allowed to cross the parking lot by herself and had been told the correct way to cross.

Subsequently, plaintiff filed a three-count complaint for damages arising from the accident. Count I was directed against the Di Mucci defendants, and count three named the driver, Ursetto, as defendant. These counts are not the subject of this appeal.

Count II named Commonwealth Edison and the Mount Prospect Park District as defendants. In this count, plaintiff alleged that defendants had created a hazardous and unreasonably dangerous condition by locating a playground immediately contiguous to a driveway or parking lot. Plaintiff alleged that defendants were negligent in their failure to place a barrier between the playground and the driveway, failure to provide safe ingress and egress to the playground across the parking lot, failure to provide a crosswalk, failure to warn motorists of the presence of children, failure to regulate traffic by means of signs, barriers, or speed bumps, and failure to prevent cars from parking in such a way as to obstruct the vision of children and motorists.

Commonwealth Edison and the Mount Prospect Park District each moved for summary judgment on count II, pursuant to section 2 — 1005 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005.) Both defendants argued that they had no duty to do any of the acts plaintiff alleged they failed to do and that failure to do those acts was not a proximate cause of plaintiff’s injuries. The park district also argued that it was immune from liability.

In opposition to the motion, plaintiff submitted the affidavit of Michael Janke, a resident of the apartment complex who had witnessed the accident. According to Janke, he had seen vehicles travel-ling through the parking lot at speeds up to 60 miles per hour on previous occasions. He estimated that the car which struck Sherry was travelling about 30 miles per hour.

Plaintiff also submitted the deposition of Alan R. Caskey, a parks and recreation planner. Caskey opined that the defendants failed to provide proper ingress, egress and barriers so that children entering and leaving the playground would have a proper path to cross the parking lot. He testified that barriers should have been installed along the side of the park to prevent children from running through the parked vehicles, and that a properly marked and signed crosswalk should have been installed. Plaintiff also retained a transportation engineer, James Saag. He testified that the parking lot, which was over one-quarter of a mile long, should have been designed with some physical diversion to force drivers to slow their vehicles as they drove through the lot.

Following argument, the trial court granted defendants’ motions for summary judgment. The court rejected as “totally impractical” plaintiff’s suggestion that the playground should have been removed. The court also refused to impose a duty on the park district to erect a fence between the playground and the parking lot, since to do so would put an “impossible burden” on every park district to protect those using the park from injury while crossing a public way or private way. This appeal followed.

Opinion

Summary judgment should be granted only when the pleadings, depositions, affidavits, and admissions on file show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Schnering v. Midlothian Park District (1991), 219 Ill. App. 3d 664, 579 N.E.2d 908.) In a negligence action, the determination of whether a duty exists is an issue of law to be determined by the court. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387.) Absent the existence of a duty, defendant is entitled to summary judgment. Crutchfield v. Yellow Cab Co. (1989), 189 Ill. App. 3d 1091, 1094, 545 N.E.2d 961 (“[i]f, based upon the pleadings and accompanying affidavits, it appears no duty is owed plaintiff, granting of summary judgment is proper”).

On appeal, plaintiff contends that Commonwealth Edison and the park district owed a duty to children to place their playground in a safe location and to provide a safe means of ingress and egress to the playlot. In support of her position, plaintiff cites Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836, and its progeny, where the Illinois Supreme Court considered the duty of a landowner to remedy conditions on his property which posed a danger to children.

In Kahn, the court abolished the doctrine of attractive nuisance and the distinctions between a child’s status as a trespasser or an invitee, and held that the rules of ordinary negligence are to be applied in cases involving personal injuries to children. (Kahn v. James Burton Co., 5 Ill. 2d at 624 (“the only proper basis for decision in such cases dealing with personal injuries to children are the customary rules of ordinary negligence cases”).) Although generally an owner or one in possession is under no duty to keep his premises in any particular state or condition to promote the safety of trespassers or others who come upon them without invitation, an exception may exist where children are involved. (Kahn v. James Burton Co., 5 Ill. 2d at 625.) When the owner or person in possession or control knows or should know that children frequent the premises and there exists a dangerous condition on the premises, the law will impose a duty to remedy the condition which would not exist under the rules of ordinary negligence. Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 326, 383 N.E.2d 177; see also Cope v. Doe (1984), 102 Ill.

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Bluebook (online)
614 N.E.2d 135, 244 Ill. App. 3d 212, 185 Ill. Dec. 1, 1993 Ill. App. LEXIS 370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hanks-v-mount-prospect-park-district-illappct-1993.