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02/11/88 Jason James Scarano, A v. the Town of Ela Et Al.

February 11, 1988

JASON JAMES SCARANO, A MINOR BY HIS MOTHER AND NEXT FRIEND, CARON L. SCARANO, PLAINTIFF-APPELLANT

v.

THE TOWN OF ELA ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

520 N.E.2d 62, 166 Ill. App. 3d 184, 117 Ill. Dec. 72 1988.IL.191

Appeal from the Circuit Court of Lake County; the Hon. Alvin Ira Singer, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Plaintiff, Jason Scarano, a minor, filed suit by his mother and next friend, Caron L. Scarano, in the circuit court of Lake County against defendants, the Town of Ela and the Lions Club of Lake Zurich, to recover for injuries that he sustained when he fell from a slide located on property owned and maintained by both defendants. Following the trial court's dismissal of his fourth amended complaint, plaintiff filed this appeal.

The two issues raised on appeal are whether defendants owed plaintiff a duty of ordinary care to prevent him from falling from the slide and whether the fourth amended complaint alleged facts sufficient to state a cause of action for wilful and wanton misconduct.

The fourth amended complaint alleges that defendants own, operate, and maintain a certain parcel of real estate upon which a playground is located. On the playground, there is a piece of playground equipment known as a "double slide."

According to the complaint, the slide is over six feet high, has no handrail between its parallel steps, has steps, a platform, and handrails that are worn smooth, has loose handrails around the platform, has exposed metal and concrete footings, and is situated above a packed dirt and stone surface. Additionally, there are allegations that on prior occasions other children have fallen from this same slide due to these dangerous and defective conditions, and that defendants knew of such incidents. It is further alleged that plaintiff, while playing on the platform of the slide, along with several other children, slipped, attempted to prevent his fall by grabbing the handrails, his hands slipped from the defective handrails which were worn smooth, slippery, and loose, and he fell, suffering physical injuries, including a fractured arm.

On appeal, plaintiff contends that the complaint's allegations regarding defendants' failure to remedy the defective and dangerous condition of the playground slide and surrounding environment states a cause of action for negligence. Additionally, he maintains that the defendants' knowledge of prior incidents of a similar nature, combined with their failure to remedy the defective and dangerous slide, states a cause of action for wilful and wanton conduct. Defendants respond that the trial court correctly dismissed the complaint because defendants had no duty under these circumstances to protect plaintiff from or warn him of the obvious dangers of falling from the slide.

In determining whether a motion to dismiss was properly allowed, all well-pleaded facts will be regarded as true (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 514, 513 N.E.2d 387), and all reasonable inferences should be construed in the plaintiff's favor. (Katz v. Belmont National Bank (1986), 112 Ill. 2d 64, 67, 491 N.E.2d 1157.) A cause of action should not be dismissed unless it clearly appears from the pleadings that no set of facts can be proved which will entitle plaintiff to recover. Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co. (1986), 114 Ill. 2d 278, 286, 499 N.E.2d 1319.

To be legally sufficient, a negligence complaint must set out facts that establish the existence of a duty owed by defendant to plaintiff, a breach of that duty, and an injury proximately caused by the breach. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525, 513 N.E.2d 387.) The determination of whether a duty exists is an issue of law to be determined by the court. 117 Ill. 2d at 525.

Furthermore, a complaint for wilful and wanton misconduct must allege not only duty, breach, and proximate cause, but also that defendants either intentionally injured plaintiff or acted in reckless disregard for his safety. (Tijerina v. Evans (1986), 150 Ill. App. 3d 288, 291, 501 N.E.2d 995; see also O'Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, 469, 415 N.E.2d 1015.) Duty is, however, a prerequisite to any wilful and wanton cause of action. Young v. Chicago Housing Authority (1987), 162 Ill. App. 3d 53, 55, 515 N.E.2d 779; Newby v. Lake Zurich Community Unit, District 95 (1985), 136 Ill. App. 3d 92, 97, 482 N.E.2d 1061.

Customary principles of ordinary negligence must be applied to determine the liability of owners, occupants, or parties in control of premises upon which a child is injured. (Cope v. Doe (1984), 102 Ill. 2d 278, 286, 464 N.E.2d 1023.) Furthermore, a duty will be imposed upon such a party if he knows or should know that children frequent the premises and if the cause of the child's injury was a dangerous condition on the premises. (102 Ill. 2d at 286.) A dangerous condition is one which is likely to injure children generally who, by reason of their age and immaturity, would not be expected to comprehend and avoid the attendant risks. (102 Ill. 2d at 286.) Consequently, there is a duty to remedy the condition under those ...


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