Before we reach the question of willful and wanton misconduct, however, we must first determine whether defendant owed a duty to plaintiff. "It is fundamental that there can be no recovery in tort for negligence unless the defendant has breached a duty owed to the plaintiff." Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill. 2d 95, 97, 306 N.E.2d 39, 40.
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
JOSEPH YOUNG, a Minor by Andra Young, his Mother and Next
515 N.E.2d 779, 162 Ill. App. 3d 53, 113 Ill. Dec. 794 1987.IL.1468
Appeal from the Circuit Court of Cook County; the Hon. Odas Nicholson, Judge, presiding.
JUSTICE JOHNSON delivered the opinion of the court. LINN and JIGANTI, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON
Plaintiff, Joseph Young, by his mother and next friend, Andra Young, brought an action in the circuit court of Cook County against defendant, the Chicago Housing Authority. Plaintiff sought damages for injuries that he sustained in falling from playground equipment, commonly referred to as monkey bars, located in a playground that defendant owns. Defendant moved to dismiss plaintiff's third amended complaint. The trial court dismissed only a portion of the complaint and certified the following question for review:
"Whether allegations that a public entity installed 'monkey bars' upon a concrete surface and failed to remove or replace the concrete surface with a softer surface after children had allegedly been injured after falling onto the concrete surface is willful and wanton and wanton [ sic ] misconduct to overcome the immunity granted by Section 3 -- 106 of the Tort Immunity Act of Illinois."
We reverse and remand with directions.
Defendant moved to dismiss plaintiff's third amended complaint under section 2-619(a)(9) of the Code of Civil Procedure, which provides that a defendant may move to dismiss an action on the ground that a claim asserted is barred by other affirmative matter avoiding the legal effect of or defeating the claim. (Ill. Rev. Stat. 1983, ch. 110, par. 2-619(a)(9).) Defendant argues that it owed no legal duty to plaintiff to replace the concrete surface under the monkey bars with a softer surface.
"Affirmative matter" includes something in the nature of a defense that completely negates the alleged cause of action. A motion to dismiss pursuant to section 2 -- 619 admits all well-pleaded facts and all reasonable inferences therefrom favorable to the plaintiff. The absence of a legal duty to a plaintiff is an affirmative defense and, thus, appropriate for a section 2 -- 619 motion. Holubek v. City of Chicago (1986), 146 Ill. App. 3d 815, 817, 497 N.E.2d 348, 350.
Plaintiff alleged that on September 2, 1983, he was five years old and playing in a playground owned by defendant, located at 1132 East 42nd Street, in Chicago, Illinois. He was playing on monkey bars built on the playground and fell onto the concrete surface, sustaining injuries.
Plaintiff filed his third amended complaint on March 3, 1986. He alleged that defendant owed him the duty of maintaining its playground, including the monkey bars, with reasonable care so that those in the playground and playing on the monkey bars would not be injured. Plaintiff further alleged that defendant breached this duty by one or more of ...