Lane v. Titchenel

562 N.E.2d 1194, 204 Ill. App. 3d 1049, 150 Ill. Dec. 391, 1990 Ill. App. LEXIS 1686
CourtAppellate Court of Illinois
DecidedOctober 31, 1990
Docket5-89-0635
StatusPublished
Cited by12 cases

This text of 562 N.E.2d 1194 (Lane v. Titchenel) 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
Lane v. Titchenel, 562 N.E.2d 1194, 204 Ill. App. 3d 1049, 150 Ill. Dec. 391, 1990 Ill. App. LEXIS 1686 (Ill. Ct. App. 1990).

Opinion

JUSTICE WELCH

delivered the opinion of the court:

Plaintiff, Stephen Lane, brought an action in negligence to recover for personal injuries he sustained on land owned by defendants, Thomas and Phyllyse Titchenel. Plaintiff’s amended complaint, filed July 27, 1988, in the circuit court of Madison County, alleges that on October 18, 1986, plaintiff was, at the invitation of defendants, upon certain rural property owned by defendants to attend a hayride; that defendants negligently and carelessly maintained the property in that it was not adequately lighted, a hole was permitted to be present, creating a dangerous condition, and defendants failed to repair the premises; and that as a direct result of this negligence, plaintiff fell and suffered injury.

On August 8, 1988, defendants filed an answer to the amended complaint, denying the allegations of negligence and raising the affirmative defense that, pursuant to the Illinois Recreational Use of Land and Water Areas Act (Ill. Rev. Stat. 1985, ch. 70, par. 31 et seg.) (hereinafter Act), defendants owed no duty of care to plaintiff to keep the premises in a safe condition or to warn of any dangerous condition. On March 13, 1989, plaintiff filed a motion for partial summary judgment on the affirmative defense raised by defendants, arguing that the Act only provided immunity from liability when the land was being used for a “recreational purpose” as defined in section 2 of that act (Ill. Rev. Stat. 1985, ch. 70, par. 32), and that plaintiff had not been on the land for a “recreational purpose.” On April 21, 1989, defendants filed a motion for summary judgment arguing that plaintiff was upon their land for a recreational purpose within the meaning of the Act and that, therefore, as a matter of law, defendants owed no duty to plaintiff.

The evidence in support of and opposition to the motions for summary judgment establishes the following undisputed facts. The evening was planned by the defendants’ son, who was employed by Andy’s Auto Body Shop. The defendants offered the land to their son at no charge for a hayride/picnic for employees of Andy’s Auto Body Shop. Food for the wiener roast was provided by Andy’s Auto Body Shop. Defendants provided the wagon for the hayride. The site for the wiener roast was approximately one-quarter mile from defendants’ house near a wooded area. Plaintiff stepped in a large puddle, fell and twisted his ankle, breaking the bone.

Defendants have routinely allowed other friends of their son to use the land for similar purposes at no charge. Indeed, every weekend in the summer months, friends of defendants’ son bring their off-road vehicles to the site, where they camp and enjoy the weekend. There is a small shanty at the campsite and a privy.

On May 5, 1989, the circuit court of Madison County entered an order denying what it characterized as plaintiff’s motion to strike defendants’ affirmative defense based upon the Act. The order finds that plaintiff was upon defendants’ land for a hayride and wiener roast, that, although such activities are not specifically mentioned within the definition of “recreational purpose,” they do fall within the broad range of activities specified in the Act, and that therefore the Act immunizes defendants from liability for plaintiff’s injuries.

On September 6, 1989, the circuit court of Madison County entered an order granting defendants’ motion for summary judgment. The order makes the same findings as does the court’s order of May 5,1989.

Plaintiff appeals from the denial of his motion for partial summary judgment and the granting of defendants’ motion for summary judgment. He argues that the court’s finding that the Act applies in this case is erroneous because: (1) plaintiff was not upon defendants’ land for a “recreational purpose” within the meaning of the Act; and (2) defendants’ land is covered by the Campground Licensing and Recreational Area Act (Ill. Rev. Stat. 1985, ch. Ill 1/2, par. 761 et seq.), thus, defendants are not entitled to the protection of the Recreational Use of Land and Water Areas Act.

We will summarily dispose of plaintiff’s second argument, that the Campground Licensing and Recreational Area Act covers defendants’ land rather than the Recreational Use of Land and Water Areas Act, as this argument was never raised before the trial court. It is too well settled for extensive discussion that issues and arguments which were not presented to or considered by the trial court cannot be raised for the first time on review. (Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc. (1983), 116 Ill. App. 3d 1043, 1052, 452 N.E.2d 804, 811.) Plaintiff has waived this issue and we will not review it.

With respect to plaintiff’s other argument, that plaintiff was not upon the land for a “recreational purpose,” we first point out that summary judgment is properly granted when the pleadings, together with depositions, affidavits, and other material filed in support of and in opposition to the motion, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Schnabel v. County of Du Page (1981), 101 Ill. App. 3d 553, 428 N.E.2d 671, 677.) In the instant case, the facts are not in dispute. Rather, the parties disagree on whether or not those facts place this case within the purview of the Act. Specifically, the parties disagree on the construction to be given to section 2 of the Act, which defines the term “recreational purpose,” and whether plaintiff entered upon or used defendants’ land for such a purpose. The question of the construction or interpretation of a statute is peculiarly a matter of law, and summary judgment is properly entered upon such a question. (Berrios v. Rybacki (1989), 190 Ill. App. 3d 338, 348, 546 N.E.2d 651, 657.) However, we must determine whether the trial court properly answered that question of law and entered summary judgment in favor of the proper party. We conclude that it did and therefore affirm the judgment of the circuit court of Madison County.

The Recreational Use of Land and Water Areas Act in effect at the time of plaintiff’s injury provides that an owner of land owes no duty of care to keep the premises safe for entry or use by any person for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purpose. Thus, the Act provides immunity only if the land is entered upon or used for a “recreational purpose.” (Ill. Rev. Stat. 1985, ch. 70, par. 33.) The Act defines the term “recreational purpose” as follows:

“ ‘Recreational purpose’ includes, and is limited to, any of the following, or. any combination thereof: hunting, fishing, swimming, boating, snowmobiling, motorcycling, camping, picnicking, hiking, cave exploring, nature study, water skiing, water sports, bicycling, horseback riding, and viewing or enjoying historical, archaeological, scenic or scientific sites.” (Ill. Rev. Stat. 1985, ch. 70, par. 32(c).)

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Cite This Page — Counsel Stack

Bluebook (online)
562 N.E.2d 1194, 204 Ill. App. 3d 1049, 150 Ill. Dec. 391, 1990 Ill. App. LEXIS 1686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lane-v-titchenel-illappct-1990.