Tamez v. Chicago Public Schools

2021 IL App (1st) 200935-U

• Court: Appellate Court of Illinois
• Decided: July 23, 2021
• Docket: 1-20-0935
• Status: Unpublished

Opinion

2021 IL App (1st) 200935

FIFTH DIVISION Order filed: July 23, 2021

No. 1-20-0935

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

OLIVIA TAMEZ, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) ) v. ) No. 17 L 007648 ) CHICAGO PUBLIC SCHOOLS, ACADEMY FOR ) URBAN SCHOOL LEADERSHIP (AUSL) d/b/a ) TARKINGTON SCHOOL OF EXCELLENCE, and ) CHICAGO PARK DISTRICT, ) ) Defendants. ) ) Honorable (Chicago Public Schools and Chicago Park District, ) Thomas More Donnelly, Defendants-Appellees). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HOFFMAN delivered the judgment of the court. Presiding Justice Delort and Justice Cunningham concurred in the judgment.

ORDER

¶1 Held: We affirm the summary judgment entered in favor of the defendants as the plaintiff failed to establish a genuine issue of material fact that the defendants’ conduct was willful and wanton. No. 1-20-0935

¶2 The plaintiff, Olivia Tamez, appeals from the order of the circuit court of Cook County

granting summary judgment in favor of the defendants, Chicago Park District (Park District) and

the Board of Education of the City of Chicago, sued as “Chicago Public Schools” (the Board). On

appeal, the plaintiff maintains that the circuit court erred in granting summary judgment because

there was a genuine issue of material fact as to whether the defendants’ conduct was willful and

wanton. For the reasons that follow, we affirm.

¶3 The plaintiff filed a five-count complaint, charging the Park District, the Board, and the

Tarkington School of Excellence (Tarkington School) with willful and wanton conduct that

proximately resulted in the injury she sustained when she fell from a misplaced metal step on the

bleachers in the school gymnasium during a Park District volleyball tournament. The complaint

also charged the Tarkington School and the Board with simple negligence related to her fall. The

circuit court dismissed count III, which alleged negligence against the Board. The plaintiff entered

into a settlement agreement with the school, and consequently, counts I and II were dismissed,

leaving only counts IV and V, which alleged willful and wanton conduct against the Board and

the Park District, respectively.

¶4 Following discovery on counts IV and V, the Board and the Park District each filed separate

motions for summary judgment. In their motions, the defendants asserted immunity under Section

3-106 of the Local Governmental & Governmental Employees Tort Immunity Act (The Act) (745

ILCS 10/3-106 (West 2016)) and argued that the plaintiff cannot establish that the defendants’

conduct was willful and wanton. On August 19, 2020, after a hearing on the motions, the circuit

court orally granted both motions and subsequently entered a written order on August 25, 2020,

granting summary judgment in favor of the defendants. This appeal followed.

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¶5 Summary judgment is appropriate if there is no genuine issue of material fact, and the

moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2018). Our

review of an order granting summary judgment is de novo. In re Estate of Hoover, 155 Ill. 2d 402,

411 (1993). In conducting that review, we examine all of the pleadings and evidentiary material

on file at the time of the entry of the orders appealed from in the light most favorable to the

nonmoving party. Kolakowski v. Voris, 83 Ill. 2d 388, 398 (1980). The following facts relevant to

the disposition of this appeal are adduced from that evidentiary material and are taken with its

inferences most favorable to the plaintiff. See Lapidit v. Memorial Center, 144 Ill. App. 3d 141,

147 (1986).

¶6 On March 21, 2017, the plaintiff attended a volleyball tournament run by the Park District

and held inside the gymnasium of the Tarkington School. The seating inside the gymnasium

consisted of bleachers. The plaintiff testified in her deposition that while she was descending the

bleachers, she tripped on a movable metal step causing her injury. She had been sitting in the same

spot on the bleachers for approximately five hours before she fell, did not see anyone else step on

the metal step prior to her fall, and did not see anyone else have any issues with the bleachers that

evening. She also testified that she was unaware of who set up the bleachers for the volleyball

tournament.

¶7 According to the plaintiff’s expert, Scott Leopold, who is a licensed engineer, the bleachers

contain a metal step that should attach to the front of the bleachers and rest on the gymnasium

floor. If assembled this way, the metal step would be the first step when ascending the bleachers

from the gymnasium floor and the last step when descending the bleachers onto the gymnasium

floor. Leopold authored a technical report in which he attached photographs of the bleachers,

which revealed the bleachers have small warning labels stating: “Reference Owner’s Manual for

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Safe Operating and Maintenance Instructions.” The manual advises the user to verify that “front

aisle steps or portable front steps are securely attached prior to use” and that unauthorized

personnel should not operate the bleachers. Leopold opined that “[f]rom the point of view of a

spectator, the [moveable metal] step appeared to be an integral part of the bleachers.” He also

offered opinions about the safety of the bleachers, the failings of the defendants, and the safety

instructions for the bleachers contained in the operations manual, but he did not have any

information on whether anyone at the Board ever had that manual. He was also unable to determine

who set up the bleachers. He concluded that the misplaced step was unreasonably dangerous

because, inter alia, it was unstable and that the bleachers were unreasonably dangerous because

the defendants either did not have an instruction manual or were unfamiliar with it.

¶8 Tarkington School is run by the Board, and the Board and the Park District have an

agreement where each entity shares the school gymnasium, which is one of the “Shared Use

Facilities” pursuant to the agreement. Paragraph 3.10 of the agreement states: “The Board shall

provide any and all structural repairs to the School (including the Exclusive Use Facilities) and

shall also provide all routine janitorial services, maintenance and non-structural repairs, at its own

expense, to the Shared Use Facilities.”

¶9 On March 1, 2014, the Board contracted with SodexoMagic, LLC (“Sodexo”) for facility

management services at Tarkington School. Pursuant to that contract, Sodexo provided a full-time

engineer at Tarkington—James Johnson—who is not an employee of the Board. Jessica Reisner,

principal of the school, testified in her deposition that maintenance as well as “pull[ing] out or

put[ting] back” the bleachers was Johnson’s responsibility and, therefore, she was not given

training on operating the bleachers. Tarkington School has use of the gymnasium on weekdays

during school hours, from 8:15 a.m. to 3:15 p.m. and after 3:15 p.m., the gymnasium “belongs to”

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the Park District for its programming. According to Reisner, if the Park District had an event in

the gymnasium after school, Johnson would need to open the bleachers before he left for the day.

If the Park District needed the bleachers opened for a Park District event, the protocol was that

someone from the Park District would send an email request to Johnson and copy Reisner to that

email. However, she did not know who opened the bleachers for the Park District volleyball

tournament on March 21, 2017.

¶ 10 According to Reisner, she was not aware of the bleachers having a movable metal step that

connects to the bottom portion of the bleachers, nor was she aware of the school owning instruction

manuals for the bleachers. Aside from the plaintiff’s injury, Reisner was not aware of any other

injuries or incidents involving the bleachers at Tarkington School. It is her expectation that the

Park District is responsible for the safety of visitors using the gymnasium during Park District

events.

¶ 11 Amanda Burke, the Park Supervisor for the Park District, testified in her deposition that

she has been assigned to Tarkington school since August 2016. During the school year, the Park

District has exclusive use of the gymnasium after 4:30 p.m. On March 21, 2017, she entered the

gymnasium at 4:30 p.m. and was the first Park District employee to arrive. When she arrived, the

bleachers were already in the open position. Burke recalled requesting that Johnson open the

bleachers a few days prior to the March 21, 2017 volleyball tournament. However, she did not

personally observe Johnson open the bleachers, and therefore, did not know if he did. Burke did

not know of anyone else Johnson would delegate the responsibility of opening the bleachers to nor

did she know if Johnson delegated the task of opening the bleachers to anyone else. Neither Burke

nor any other Park District employee opened the bleachers for the volleyball tournament. Burke

was not responsible for the opening or maintenance of the bleachers, and if she needed to use them,

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she was to contact Johnson. Burke did not observe any issues with the bleachers on the day of the

volleyball tournament. Prior to the plaintiff’s injury, Burke was not aware of any problems with

the bleachers, and there were no previous injuries or complaints attributable to the bleachers.

¶ 12 The Sodexo engineer, Johnson, testified in his deposition that he was working at

Tarkington School on March 21, 2017. However, he stated that he did not set up the bleachers for

the Park District volleyball event that evening and did not recall opening the bleachers for any

Park District events. Johnson also testified that he did not recall Burke asking him to open the

bleachers for the volleyball event nor did he recall asking anyone else to open the bleachers for

the event. According to Johnson, he did not know who opened the bleachers for the volleyball

event. When asked about the metal step, Johnson testified that he was not aware that the step was

movable and that he only became aware that the step was not in the correct position after the

plaintiff’s accident.

¶ 13 On August 19, 2020, the circuit court granted the defendants’ motions for summary

judgment. In its oral ruling, the circuit court found that the defendants were immune from liability

under section 3-106 of the Act, which 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.” See 745 ILCS 10/3-106 (West 2018).

The circuit court reasoned that the plaintiff cannot establish, with the evidence of record, that the

defendants engaged in willful and wanton conduct as there is no evidence proving that either

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defendant knew or should have known that failure to inspect or affix the metal step in the proper

place according to the operations manual posed a high probability of serious harm to others.

Following the hearing, the circuit court entered a written order granting both defendants’ motions

for summary judgment.

¶ 14 On appeal, the plaintiff concedes that the defendants are immune from liability under

section 3-106 of the Act unless she can establish that her injury was proximately caused by the

defendants’ willful and wanton conduct. However, she asserts that the circuit court erred in

granting the defendants’ motions for summary judgment because she established that there was a

genuine issue of material fact that the defendants’ conduct in failing to, inter alia, inspect, identify,

or discover the misplaced step on the bleachers as well as properly train or educate on the use of

the bleachers pursuant to the operations manual amounted to willful and wanton conduct. We

disagree.

¶ 15 Section 1-210 of the Act defines “willful and wanton conduct” as follows:

“ ‘Willful and wanton conduct’ as used in this Act means 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. This

definition shall apply in any case where a ‘willful and wanton’ exception is incorporated

into any immunity under this Act.” (Emphasis Added.) 745 ILCS 10/1–210 (West 2016).

¶ 16 The plaintiff does not allege that the defendants’ conduct was intentional. Therefore, we

focus our analysis on the nonintentional element of the Act’s definition of willful and wanton

conduct—whether the defendants engaged in a course of action which showed an “utter

indifference to or conscious disregard for the safety of others or their property.” 745 ILCS 10/1–

210 (West 2016). Willful and wanton misconduct goes beyond mere inadvertence, incompetence,

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or unskillfulness, which may constitute ordinary negligence. Geimer v. Chicago Park District, 272

Ill. App. 3d 629, 637 (1995); Murphy v. Jewel Companies, Inc., 24 Ill. App. 3d 1, 4 (1974). Instead,

a defendant “ ‘must be conscious of his conduct, and, though having no intent to injure, must be

conscious, from his knowledge of the surrounding circumstances and existing conditions, that his

conduct will naturally and probably result in injury.’ ” Oelze v. Score Sports Venture, LLC, 401

Ill. App. 3d 110, 122-23 (2010). In other words, the plaintiff must establish that the defendant “had

knowledge, or should have had the knowledge under the circumstances, that his conduct posed a

high probability of serious physical harm to others.” Choice v. YMCA of McHenry County, 2012

IL App (1st) 102877, ¶ 72 (quoting, Pomrehn v. Crete–Monee High School District, 101 Ill. App.

3d 331, 335 (1981)). While generally the issue of whether a defendant’s conduct is willful and

wanton is a question for the jury, when, as here, discovery has been completed and “what is

contained in the pleadings and affidavits would have constituted all of the evidence before the

court and upon such evidence there would be nothing left to go to a jury, and the court would be

required to direct a verdict, then a summary judgment should be entered.” Cohen v. Chicago Park

District, 2017 IL 121800, ¶ 27 (quoting, Fooden v. Board of Governors of State Colleges &

Universities, 48 Ill. 2d 580, 587 (1971).

¶ 17 In urging reversal of summary judgment, the plaintiff argues that there was sufficient

evidence to create a genuine issue of material fact that the defendants’ conduct was willful and

wanton in that each: (1) knew or should have known of the misplaced metal step and its apparent

danger, and (2) knew or should have known that failure to inspect along with failure to, inter alia,

instruct and train employees on the proper maintenance and use of the bleachers in accordance

with the operations manual posed a high probability of physical harm to spectators.

¶ 18 However, the plaintiff’s arguments are misplaced for two reasons. First, the evidence of

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record fails to establish that the defendants had knowledge of the misplaced step or knowledge of

previous injuries involving the step or bleachers in general. In reaching this conclusion, we find

Leja v. Community. Unit School District 300, 2012 IL App (2d) 120156, instructive. In Leja, the

plaintiff was struck in the face by a volleyball net crank she operated in her school’s gymnasium.

The plaintiff alleged that the school’s failure to alleviate the danger of the crank amounted to

willful and wanton misconduct. This court found there was no willful and wanton misconduct on

the part of the school where there was no evidence that the school had knowledge of any defect

in the crank that would pose a serious danger to others. Id. ¶¶ 13-15.

¶ 19 In the present case, prior to the plaintiff’s injury, there were no problems with the bleachers.

The plaintiff testified in her deposition that she did not see anyone else experiencing issues with

the bleachers or stepping on the movable metal step on the evening of her injury. Principal Reisner

was unaware of any previous injuries involving the bleachers or the metal step. Burke, the Park

Supervisor, was unaware of any prior incidents or injuries from the bleachers, was unaware of

any dangers in the bleachers, was unaware of anything out of the ordinary with the metal step and

had not received any complaints about the bleachers prior to the plaintiff’s injury. Johnson was

not aware that the step was movable and only became aware that the step was not in the correct

position after the plaintiff’s injury. Based on the evidence of record, the plaintiff has failed to

establish that the defendants knew the metal step was misplaced and could be a potential threat

to others. While the defendants being unaware of a potential danger could possibly amount to

carelessness or inadvertence—which may constitute ordinary negligence—this is simply

insufficient to establish willful and wanton conduct. Geimer, 272 Ill. App. 3d at 637. In other

words, there is no evidence that either defendant acted with an utter indifference to or conscious

disregard for the plaintiff’s safety.

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¶ 20 Second, we find no case law, and the plaintiff cites no case law, which supports the

argument that a failure to inspect without prior knowledge of a danger—even when coupled with

other omissions—amounts to willful and wanton misconduct. We have, however, found case law

holding the opposite. We find this court’s decision in Majewski v. Chicago Park District, 177 Ill.

App. 3d 337 (1988), illustrative in this regard. In Majewksi, the plaintiff sought damages for

injuries that he sustained in falling on broken glass while playing touch football on a field owned

by the park district. He alleged that the park district’s willful and wanton misconduct consisted of

two omissions: (1) failing to post signs around the football field warning of the possible presence

of broken glass; and (2) failing to inspect, and remove debris from, the field. However, we found

that these two allegations “describe mere omissions,” which perhaps might constitute ordinary

negligence, but do not amount to willful and wanton misconduct. Id. at 341. In the present case,

the evidence reflects that: (1) the defendants were not aware of any danger or threat of danger on

the bleachers prior to the plaintiff’s injury; (2) there were no previous injuries connected to the

bleachers; (3) Principal Reisner, Park Supervisor Burke, nor Engineer Johnson were aware of the

operations manual for the bleachers; and (4) the defendants were not aware that the metal step was

misplaced. Therefore, based on the evidence presented and following Majewski, any omission by

the defendants, including a failure to inspect or train pursuant to the operations manual, might

constitute ordinary negligence, but does not amount to willful and wanton misconduct—or an utter

indifference to or a conscious disregard for the safety of others.

¶ 21 Accordingly, we cannot say the circuit court erred in finding that the plaintiff failed to

establish a genuine issue of material fact that the defendants’ conduct was willful and wanton, and

therefore, we affirm the judgment of the circuit court.

¶ 22 Affirmed.

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