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Ferguson v. Kasbohm

OPINION FILED FEBRUARY 28, 1985.

PATRICIA FERGUSON, PLAINTIFF-APPELLEE,

v.

LEONARD KASBOHM ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Louis J. Giliberto, Judge, presiding.

JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 4, 1985.

Plaintiff-licensee suffered injury to her right arm and wrist when the rope she was using to pull defendants-property-owners' boat out of the water snapped. The injury occurred on defendants' Michigan property. Plaintiff brought suit in Cook County, alleging negligence and wilful and wanton misconduct.

Following a bench trial, the trial judge found that defendants had or should have had knowledge of a latent defect in the rope and that the elements of both negligence and wilful and wanton misconduct were proved. The trial court awarded a $15,000 judgment on the wilful and wanton count only. Defendants now appeal, asserting that the Michigan recreational use statute (Mich. Comp. Laws sec. 300.201 (1979)), which limits landowner liability to gratuitous recreational users to injuries resulting from gross negligence or wilful and wanton misconduct, is applicable and that their conduct was not wilful and wanton.

We reverse the decision of the trial court.

BACKGROUND

In July 1978, plaintiff, Patricia Ferguson, visited her sister and brother-in-law, Arleda and Leonard Kasbohm, defendants, at their property in Michigan. During the visit, plaintiff decided to go fishing with two others in defendants' rowboat. Plaintiff knew that defendants had purchased the boat used a couple of years before, and plaintiff had seen the boat on prior occasions. Plaintiff had many years of experience at handling boats and fishing and in the use of ropes and lines in handling such boats.

Defendants gave plaintiff permission to use their boat to go fishing. The boat had a manila rope, approximately one-half to three-quarters of an inch thick, attached to its bow, with the other end attached to a homemade anchor. When plaintiff and the others were done fishing, they brought the rowboat back to shore. Plaintiff got out of the boat and started to pull on the rope while the boat, with the other passengers seated therein, was still in the water. Plaintiff dug her heels into the ground, leaned backwards and pulled on the rope. The rope snapped, causing plaintiff to fall backwards, injuring her right arm and wrist. Plaintiff brought suit in the circuit court of Cook County for the injuries she sustained.

Plaintiff alleged in count I of her complaint that defendants were negligent by their failure to inspect the boat and rope, their failure to warn plaintiff of the defective condition, and their failure to safely equip and maintain the boat. In her amended complaint, plaintiff added a second count for wilful and wanton misconduct, alleging that defendants had failed to warn her of the defective condition of the rope although they knew of said condition and that defendants failed to replace the rope prior to the date of plaintiff's injury.

After hearing the testimony of plaintiff, defendant Leonard Kasbohm, and plaintiff's uncle Harold Sanders, the trial judge, applying Illinois law, found that defendants had knowledge of a latent defect in the rope and ruled in plaintiff's favor on both counts. The trial court entered judgment only on count II, wilful and wanton misconduct, in the amount of $15,000. Defendants now appeal.

OPINION

I

• 1 Defendants' first argument on appeal is that the trial court erred by refusing to apply Michigan law in general, and the Michigan recreational use statute (Mich. Comp. Laws. sec. 300.201 (1979)) in particular. To determine the merit of defendants' contention, we must look at the applicable conflict of laws rules in Illinois.

Illinois applies the "most significant relationship test" when determining the applicable law in tort actions. This test embodies the presumption that the local law of the State where the injury occurred governs the rights and liabilities of the parties unless another State has a more significant relationship to the occurrence or to the parties involved. (Pittway Corp. v. Lockheed Aircraft Corp. (7th Cir. 1981), 641 F.2d 524.) Thus, the law of the State where the tort occurred, here Michigan law, will be used to decide the outcome of the present action unless Illinois has a more ...


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