APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
J. GILIBERTO, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
The sole issue certified to this court under Supreme Court Rule 308 (Ill. Rev. Stat. 1977, ch. 110A, par. 308), is:
"Whether a landlord as defined in said act who does not make his land available to the general public for recreational purposes may seek the protection of the Recreational Use of Land and Water Areas Act of 1963, Illinois Revised Statutes, Chapter 70, Section 31-37."
The court held that he may not, but certified the question for our immediate consideration. We disagree and reverse and remand with directions to dismiss the complaint.
On July 26, 1977, the plaintiff Johnson, as administrator of the estate of the decedent, filed a complaint for wrongful death and pain and suffering; the decedent died on September 21, 1976, from injuries arising out of an August 18, 1972, accident when the plaintiff's decedent dove into a pond on the property of defendant Stafford, these injuries being aggravated by a second accident in 1976. The first count of the complaint is directed against the defendant allegedly responsible for this second accident and is not involved in this appeal. The second and third counts are directed against the defendant Stafford and involve claims for wrongful death and pain and suffering respectively. In these counts the plaintiff alleged that the defendant owned and maintained a piece of property in the village of Minooka, Illinois (the defendant denied that the property was located in Minooka and apparently the court found that it was not since he certified that the defendant was a landowner as defined in the Act, and that Act includes only land located outside the corporate limits of a city, village or incorporated town (Ill. Rev. Stat. 1971, ch. 70, par. 32(a))); that the decedent had been an invitee lawfully on the premises; that at the time of the accident the decedent was 15 years old and was exercising that care commensurate with a child of that age; that the defendant was guilty of one or more of the following careless and negligent acts or omissions: (a) failure to make a reasonable inspection of the pond, when the defendant knew, or in the exercise of ordinary care should have known that the inspection was necessary to prevent injury to the decedent, (b) failure to warn decedent of the dangerous condition when the defendant knew or in the exercise of ordinary care should have known that the warning was necessary to prevent injury to the decedent, (c) allowing debris to accumulate in the pond, (d) failure to remove debris from the pond, (e) improperly maintaining, operating and controlling the premises so that as a direct result thereof, the decedent was injured; and that as a result of these acts and omissions the decedent sustained injury when he struck his head upon diving into the pond.
The defendant, while denying most of the allegations of the complaint, including the allegation that the decedent was an invitee lawfully on the premises, raised as an affirmative defense the immunity created by the Recreational Use of Land and Water Areas Act and moved that counts II and III be dismissed.
The plaintiff moved to strike this additional defense claiming that the statute was inapplicable because the property was not open to the public. She produced deposition testimony showing that while at least some school children could and did use the pond, they were supposed to ask for permission first, and usually did so. Furthermore, there were signs posted, one reading "Swim at your own risk we are not responsible," and the other "private property no swimming on holidays do not litter pick up your own trash."
The court ruled that the Act was not available as a defense because the land was not open to the general public for recreational purposes, and struck the defense. It also certified the question to this court for immediate consideration.
The relevant portions of the Recreational Use of Land and Water Areas Act (Ill. Rev. Stat. 1971, ch. 70, pars. 31-34, 36), read as follows:
"§ 1. The purpose of this Act is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.
§ 2. As used in this Act, unless the context otherwise requires:
(a) `Land' means land located outside the corporate limits of a city, village or incorporated town and not subdivided into blocks and lots and includes roads, water, water-courses, private ways and buildings, structures, and machinery or equipment when attached to the realty.
(b) `Owner' includes the possessor of any interest in the land, a tenant, lessee, occupant or person in control of the premises.
(c) `Recreational purpose' includes, and is limited to, any of the following, or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, nature study, water skiing, water sports, and viewing or ...