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08/18/87 James Lester, v. the Chicago Park District

August 18, 1987

JAMES LESTER, PLAINTIFF-APPELLANT

v.

THE CHICAGO PARK DISTRICT, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

513 N.E.2d 72, 159 Ill. App. 3d 1054, 111 Ill. Dec. 826 1987.IL.1194

Appeal from the Circuit Court of Cook County; the Hon. Odas J. Nicholson, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SCARIANO delivered the opinion of the court. STAMOS and BILANDIC, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

Pursuant to section 2-615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615), the trial court dismissed with prejudice plaintiff-appellant James Lester's personal injury action against the Chicago Park District . The only question on review is whether the trial court erred in dismissing the complaint for failure to state a cause of action. We affirm.

A review of the record discloses that Lester sustained the complained-of injuries while playing softball in "Hermosa Park," an outdoor recreational area which is owned, operated, and managed by the CPD. On August 2, 1985, Lester filed his original complaint at law alleging that the CPD had acted willfully and wantonly in causing and knowingly permitting ruts and holes to exist on the park's playing field. He alleged that he was nevertheless granted a permit to play on the field, and as a proximate cause of the dangerous condition, he incurred serious injuries. The complaint further alleged that the CPD failed to: (1) warn Lester of the dangerous condition; (2) maintain the property in a reasonably safe condition, and (3) inspect the area and barricade certain areas so as to prevent people from playing on the field. Lester sought a sum in excess of $15,000 as damages.

The CPD moved to dismiss pursuant to section 2 -- 615 for failure to state a cause of action, specifically arguing that the complaint "fails to allege sufficient facts to support a wanton and willful negligence cause of action." On January 2, 1986, the trial court granted the CPD's motion and allowed Lester 28 days to amend his complaint. Lester filed his amended complaint on January 28, 1986, and the CPD again filed a section 2 -- 615 motion to dismiss. The motion was granted on April 4, 1986, and Lester was again given 28 days to amend his complaint.

Lester filed his second amended complaint on April 29, 1986. This complaint still alleged that the CPD had caused ruts and holes in the field on which the plaintiff was to play and that, despite knowledge of the danger it created, failed to cure the defect. The complaint also alleged that the CPD:

"[after] causing ruts and holes in the baseball diamond area that they knew was used for playing softball, insufficiently and without proper materials, re-filled the holes and tractor markings, thereby knowingly created a danger and hazard to persons upon their premises."

The CPD subsequently filed a motion to dismiss with prejudice on the grounds that Lester had failed to allege sufficient facts indicating that the CPD was "consciously indifferent to the surrounding circumstances and conditions" and that therefore he had failed to state a cause of action for willful and wanton negligence. The court granted Lester 28 days to respond to this motion, and as part of that response, Lester attached the CPD permit allowing Lester to use the field on the day he sustained the injuries. Lester asserts in his brief to this court that the reverse side of the CPD permit sets forth a rule that individuals would not be permitted to use the field if it was not in proper condition. However, the reverse side of the permit purportedly enunciating this regulation was not attached to any of Lester's complaints or to the response of the CPD's motion to dismiss, is not a part of the record on appeal, and therefore cannot be considered by this court. Paine, Webber, Jackson & Curtins, Inc. v. Rongren (1984), 127 Ill. App. 3d 85, 92, 468 N.E.2d 459.

On September 19, 1986, the court heard arguments on the CPD's motion to dismiss with prejudice. After noting that there was an attempt by the CPD to fill the holes and ruts in the field, the trial court acknowledged that although the second amended complaint may have stated a cause of action for simple negligence, it did not state a cause of action for willful and wanton negligence. The complaint was accordingly dismissed.

As noted above, the only issue confronting us is whether the trial court erred in granting the CPD's section 2 -- 615 motion to dismiss. It is well settled that Illinois is a fact-pleading State, and that, therefore, in order to withstand a motion to dismiss, a complaint "must contain sufficient averments of fact to state a cause of action." (Stenwall v. Bergstrom (1947), 398 Ill. 377, 75 N.E.2d 864; Jarvis v. Herrin City Park District (1972), 6 Ill. App. 3d 516, 524, 285 N.E.2d 564.) To state a cause of action, "a complaint must be both legally and factually sufficient; it must set forth a legally recognized claim as its basis for recovery and must plead facts which bring the claim within the legally recognized cause of action alleged." (Doyle v. Shlensky (1983), 120 Ill. App. 3d 807, 811, 458 N.E.2d 1120.) Moreover, when considering a motion to dismiss, the trial court is bound to construe the motion strictly against the pleader. (Harvey v. Mackay (1982), 109 Ill. App. 3d 582, 586, 440 N.E.2d 1022.) The role of the trial Judge, therefore, is to determine that, based on the pleadings, it appears that there is a possibility of recovery, not an absolute certainty, and that a complaint should not be dismissed unless it appears that the pleader wholly fails to state a cause of action. McCauley v. Chicago Board of Education (1978), 66 Ill. App. 3d 676, 678-79, 384 N.E.2d 100.

The damages in tort which Lester asserts against the CPD must be recovered pursuant to the Local Governmental and Governmental ...


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