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02/05/88 Erik Mccormick, A Minor By v. Maplehurst Winter Sports

February 5, 1988

A. MCCORMICK, PLAINTIFF-APPELLANT

v.

MAPLEHURST WINTER SPORTS, LTD., ET AL., DEFENDANTS-APPELLEES AND THIRD-PARTY, PLAINTIFFS-APPELLANTS (GENE ANDERSON, THIRD-PARTY DEFENDANT-APPELLEE)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

ERIK McCORMICK, a Minor by his Father and Next Friend, John

519 N.E.2d 469, 166 Ill. App. 3d 93, 116 Ill. Dec. 577 1988.IL.147

Appeal from the Circuit Court of McHenry County; the Hon. Michael J. Sullivan, Judge, presiding.

APPELLATE Judges:

JUSTICE HOPF delivered the opinion of the court. INGLIS and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF

Plaintiff, Erik McCormick, appeals from entry of summary judgment in favor of defendants in his action to recover damages for personal injuries allegedly caused by defendants' negligence. Plaintiff asserts that summary judgment was improper because genuine issues of material fact remain unresolved between the parties. Defendants and third-party plaintiffs, Maplehurst Winter Sports, Ltd., and Robert Banasack, individually and d/b/a Maplehurst Winter Sports, Ltd. (collectively referred to hereafter as Maplehurst), appeal from entry of summary judgment in favor of third-party defendant, Gene Anderson, in their action for contribution. Defendants claim summary judgment for Anderson was improper since the issue of contribution had become moot when summary judgment was rendered in their favor in the underlying action brought by plaintiff. We affirm both the summary judgment in favor of Maplehurst and the summary judgment in favor of Anderson.

On February 5, 1983, Gene Anderson took his son and plaintiff, 10-year-old Erik McCormick, to a snow tubing hill owned and operated by Maplehurst in Spring Grove, Illinois. Patrons of Maplehurst snow tube by sliding down a hill while reclining in a truck inner tube. Mechanical tow ropes pull them back up the hill. To use the tow ropes tubers are directed to lie on their backs on the tube, heads facing uphill, and grab the rope as it moves past them. Using that technique Erik completed several successful trips down the hill and back up again. Anderson watched the boys for about a half hour or 45 minutes. He then returned to his car to wait for them.

Sometime after Gene Anderson returned to his car, Erik grabbed the tow rope and started uphill once again. About halfway up the hill, however, something happened which caused Erik to release his grip on the tow rope. His tube started coasting downhill in the path of other tubers moving upwards with the rope. Injured and unconscious, Erik was still lying across his tube when it stopped moving.

When he later awoke in a hospital Erik had no recollection of what had happened to him. He had not felt anything hit him, did not know if someone had bumped into him or if he had hit something or somebody else, and did not remember whether he had let go of the rope. No other witnesses saw what happened.

Plaintiff subsequently sued Maplehurst alleging that its negligence in the maintenance, operation, and supervision of the snow tubing facility resulted in his injuries. Maplehurst ultimately filed a motion for summary judgment, and plaintiff filed a response. Both the motion and response were supported by extensive deposition testimony. The relevant portions of that testimony are as follows.

Gene Anderson indicated that on the day Erik was injured the rules to be followed by patrons of the snow tubing facility were posted on a board near the top of the tubing runs. He went over these rules with Erik and his son and then stayed near the top of the hill to watch the youngsters and make sure they were using the tow rope correctly. He did not see them having any difficulty with the rope. Anderson recalled that the facility was crowded, but he saw neither any collisions nor any kids behaving in an unsafe or reckless manner. Since he was in his car when the accident happened, Anderson did not see how Erik was injured.

In addition to his testimony that he did not recall what had happened to him, Erik indicated that he had not had a problem with the tow rope before the accident. At no time when he was using it did he see another tuber let go of the rope, fall off the rope, or slide down the hill right underneath the rope. The tow rope worked smoothly, without jerking or side-to-side movement. Erik did not remember hearing any shouting before he became unconscious.

Ed Ziemann was tubing at Maplehurst at the time Erik was injured. He had noticed a group of youngsters, who appeared to be about 10 to 13 years old, engaging in horseplay on the slope. Also, he had been bumped by another tuber during one of his trips up the tow rope shortly before the accident. His testimony indicated that he had once again just started up the tow when he was again bumped by another tuber. He released the tow rope, got off his tube, noticed some congestion further up the hill, and heard that someone had been hurt. Ziemann represented, evidently as a possible explanation of the bumps he received, that a group of kids seemed to be together and they "were going up the tow rope and it would be a conjecture on my part, leaving go intentionally perhaps and banging into the ...


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