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Ostergren v. Forest Preserve District





Appeal from the Circuit Court of Will County; the Hon. Charles Connor, Judge, presiding.


This action was brought by Richard Ostergren to recover damages for personal injuries alleged to have been caused by the negligence of the Forest Preserve District of Will County, the Forest Preserve Board of Will County and the County of Will, in maintaining and supervising the forest preserve for use by snowmobilers. The plaintiff's complaint states that he was severely injured when the snowmobile he was operating "struck an excavation, trench or mound at the [Sauk Trail] Forest Preserve and [he] was thrown from [the] snowmobile." Upon motion by the County of Will, the court granted summary judgment in the county's favor, and that defendant is no longer a party to this suit. The Forest Preserve District similarly sought to be dismissed, initially on grounds that plaintiff's cause of action is barred by section 3 of "An Act to limit the liability of landowners who make their land and water areas available to the public for recreation purposes" (Ill. Rev. Stat. 1981, ch. 70, par. 33), and later on grounds that the cause of action is barred by force of section 5-1(I) of the "Snowmobile Registration and Safety Act" (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 605-1(I)). The trial court denied the former motion and granted the latter. It is from the granting of the Forest Preserve District's motion to dismiss that plaintiff appeals. The sole issue presented for our review is whether the statutory authority upon which defendant Forest Preserve District's motion was based is constitutional.

• 1 While the precise question before us is one of first impression in this State, the arguments presented by the plaintiff in urging a reversal based on a finding that the statute is unconstitutional are not novel.

The statute, in pertinent part, reads as follows:

"An owner, lessee, or occupant of premises owes no duty to keep the premises safe for entry or use by others for snowmobiling, or to give warning of any unsafe condition or use of or structure or activity on such premises. This subsection does not apply where permission to snowmobile is given for a valuable consideration other than to this State, any political subdivision or municipality thereof, or any landowner who is paid with funds from the Snowmobile Trail Establishment Fund." (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 605-1(I).)

Plaintiff initially contends that the statute is unconstitutional because it creates an arbitrary classification in violation of equal protection and special legislation clauses of the Illinois and United States constitutions. Plaintiff's alternative argument is that the statute unconstitutionally denies the plaintiff his right to due process of law by totally extinguishing a common law cause of action.

The statutory provision before us contains two sentences which initially categorize snowmobilers depending upon whether they give "valuable consideration" for permission to use the premises and grants immunity to landowners/occupiers who are not recipients of "valuable consideration." The second sentence provides a further breakdown for the category of landowners/occupiers who are given such consideration, depending upon whether the recipient is: (1) a body politic or a private landowner paid by funds from the Snowmobile Trail Establishment Fund (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 609-2); or (2) any other landowner/occupier. Immunity is granted in the former subcategory.

The plaintiff in this case was granted leave to amend his complaint to add the allegation that "[p]laintiff is a taxpayer of the State of Illinois and the FOREST PRESERVE DISTRICT OF WILL COUNTY, Illinois." In his appeal, plaintiff urges that, by force of this allegation, he acquires standing to challenge the constitutionality of the subclassification in the second sentence between private and public landowners/occupiers on equal protection grounds. We cannot agree. Clearly, the legislative intent in separating the categories of landowners/occupiers between those accepting "valuable consideration" and those who do not is to recognize that the duty owed by persons or entities who are paid for the use of their property by snowmobilers is greater than that owed by persons or entities not so paid. This distinction between the gratuitous provider and the paid is not uncommon in the law (see Pashinian v. Haritonoff (1980), 81 Ill.2d 377, 410 N.E.2d 21 (analyzing and approving the "premises doctrine" as it affects the duty owed for the protection of trespassers, invitees and social guests); see also Clarke v. Storchak (1943), 384 Ill. 564, 52 N.E.2d 229 (wherein the court analogizes the guest statute's distinction between gratuitous host drivers and those who accept payment for transportation to the common law's distinctions between gratuitous bailees and bailees for hire, common carriers and private drivers, and innkeepers and social hosts)), and it is well within the police power of the State to recognize this distinction by passing legislation for the protection of gratuitous hosts. Clarke.

• 2 The mere payment of taxes by the plaintiff, without more, is not sufficient to take the governmental defendant out of the category of gratuitous landowners/occupiers for whom the statutory provision grants immunity in the first sentence. Were we to hold otherwise could lead to absurd results, since any landowner/occupier who benefits from tax-supported programs would likewise be subject to the higher standard of care contemplated in the second sentence. Ultimately, by extending this line of reasoning, the distinction could be rendered meaningless. Obviously, the General Assembly did not intend that the term "valuable consideration" be construed as the plaintiff suggests.

Having thus determined that the plaintiff in this case did not pay valuable consideration for the use of the defendant's land, we hold that he lacks standing to complain of any unequal protection aspects of the second sentence of the statutory provision.

• 3, 4 Our inquiry does not end here, however. The plaintiff, as a nonpaying user of the defendant's land for the purpose of snowmobiling, has clearly alleged sufficient facts to bring himself within the class of persons affected by the first sentence of section 5-1(I). That provision, without regard to the landowner/occupier's public or private character, totally abolishes the plaintiff's cause of action. Prior to the enactment of this statute, the plaintiff had a common law cause of action for negligence, subject, of course, to any common law defenses that might be available. The complaint alleges that the defendant purchased liability insurance, thereby waiving its governmental tort immunity (Ill. Rev. Stat. 1981, ch. 85, pars. 3-106, 9-103). Plaintiff contends that the effect of the statute as it applies to the facts of his case is to deprive him of his right to due process of law.

The fundamental constitutional rights to which plaintiff's arguments are directed are succinctly stated in article I, section 2, of the Illinois Constitution of 1970: "No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws." The right of due process of law is found as well in section 1 of the fourteenth amendment to the United States Constitution. Article I, section 12, of the Illinois Constitution of 1970 further provides that "[e]very person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation. He shall obtain justice by law, freely, completely, and promptly." Thus stated is the philosophy by which plaintiff's charge of a statutory due process violation must be considered. Sullivan v. Midlothian Park District (1972), 51 Ill.2d 274, 281 N.E.2d 659; Koskela v. Martin (1980), 91 Ill. App.3d 568, 414 N.E.2d 1148.

These constitutional provisions were considered by our supreme court in the context of a challenge to the Illinois "guest statute" (Ill. Rev. Stat. 1941, ch. 95 1/2, par. 58a) in Clarke v. Storchak (1943), 384 Ill. 564, 576, 52 N.E.2d 229, 236. There, the court outlined the parameters of the constitutional issue by which we are guided today:

"[S]sections 2 and 19 of article II of our constitution [presently, sections 2 and 12 of Article I], * * * [provides] a broad field for the protection of persons in their property and reputation, but this does not give a vested right not subject to change by legislative power, provided the change is reasonably necessary to promote the general welfare of the people and does not destroy a remedy. With the growth and development of the State the police power necessarily develops, within reasonable bounds, to meet the changing conditions. [Citations.] The power is not ...

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