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08/17/89 Mary Timm, v. Prings Recreation

August 17, 1989

MARY TIMM, PLAINTIFF-APPELLANT

v.

INDIAN SPRINGS RECREATION ASSOCIATION, DEFENDANT-APPELLEE (RUTH COCHRAN, DEFENDANT)

THIS APPEAL INVOLVES ONLY THE ISSUE OF WHETHER THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT IN FAVOR OF INDIAN SPRINGS ON COUNTS III AND I

v.

COUNTS III AND IV OF PLAINTIFF'S AMENDED COMPLAINT ATTEMPTED TO ALLEGE CAUSES OF ACTION IN STRICT PRODUCTS LIABILITY AGAINST INDIAN SPRINGS.



Before 1985, these carts were rented to club members and to the general public. Indian Springs maintained these carts and in 1984 charged rental fees of $6 for 9 holes and $10 for 18 holes. The gross income from the rental of the carts in 1984 was approximately $20,000, and the maintenance expense incurred was between $4,000 and $5,000.

APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

543 N.E.2d 538, 187 Ill. App. 3d 508, 135 Ill. Dec. 155 1989.IL.1266

Appeal from the Circuit Court of McLean County; the Hon. Ronald C. Dozier, Judge, presiding.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. LUND and GREEN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

Plaintiff Mary Timm sued defendants Indian Springs Recreation Association (Indian Springs) and Ruth Cochran in the circuit court of McLean County to recover damages for personal injuries she sustained when she fell from a golf cart operated by Cochran and which was sold to Cochran by Indian Springs. Count I of plaintiff's amended complaint alleged negligence against Indian Springs and count II alleged wilful and wanton misconduct against Indian Springs. Neither of these counts is involved in this appeal. Nor are counts V and VI, which alleged negligence on the part of Cochran.

The order of the circuit court, filed November 16, 1988, denied Indian Springs' motion for summary judgment as to counts I and II, and granted the motion as to counts III and IV. On January 27, 1989, an additional order of the trial court was filed denying Indian Springs' motion to reconsider the earlier ruling on counts I and II and a request for a Supreme Court Rule 308 finding (107 Ill. 2d R. 308) permitting an interlocutory appeal. The January 27, 1989, order also denied plaintiff's motion to reconsider the summary judgment granted as to counts III and IV, and further ordered, pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), that there was no just reason to delay enforcement or appeal of the order granting summary judgment on counts III and IV. Plaintiff filed a notice of appeal on February 14, 1989.

Plaintiff was allegedly injured on May 28, 1985, when she fell from a golf cart owned and driven by Cochran. Her injury allegedly occurred because of the absence of a handrail on the cart. Cochran and her husband had purchased the cart from Indian Springs.

Indian Springs acquired the golf cart in question on or about January 10, 1980, when a lease agreement was entered into for five 1980 Model MG-IV Harley Davidson, four-wheel electric golf carts. On or about October 1, 1982, Indian Springs exercised its option under the lease to purchase the carts. At the time the carts were acquired, they were all equipped with handrails on each side.

In 1984, it was common for handrails to be missing from carts. An attempt was made to weld handrails back onto the seat frame, but within a couple of weeks the handrails came off again. Thereafter, a decision was made not to try to weld the handrails back onto the seat frames. During 1984, the majority of the four-wheeled carts were missing at least one handrail. These carts were rented to golfers in 1984 without handrails on them.

At the end of 1984, the decision was made by the club to sell all of the carts. The entire fleet of golf carts, then 18 in number, was sold in late 1984 or in early 1985. Most of the carts were sold to the club manager, Tom Kerfott. One of the Harley Davidson carts was sold to the Cochrans. The carts were sold on an "as is" basis, and this was the only sale of golf carts ever conducted by Indian Springs.

At the time of purchasing the carts, according to Harold Cochran, the cart was equipped with one handrail, which he removed because it was flimsily bolted on. In the portion of the deposition supplied to this court, Harold does not say from which side of the cart this handrail was removed. Plaintiff's deposition indicates she did not give any thought to looking for handrails at the time she entered the golf cart. According to Kerfott's deposition, in order to correct the problem with the handrails, the seat frame on the cart needed to be replaced since the handrails and seat frame were an integral unit. Kerfott estimated the cost of this seat frame to be $70, but he believed that even if a whole new unit was put on the cart the handrails would come off again.

Plaintiff suffered her injury when Cochran made a turn on a hill on the sixth hole of defendant's golf course, causing plaintiff to slide out of the cart to the downhill side. Plaintiff tried to find something to hold onto which ...


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