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09/01/89 Anthony Logan Et Al., v. Old Enterprise Farms

September 1, 1989

ANTHONY LOGAN ET AL., PLAINTIFFS-APPELLANTS

v.

OLD ENTERPRISE FARMS, LTD., ET AL., DEFENDANTS-APPELLEES. -- ANTHONY LOGAN ET AL., PLAINTIFFS-APPELLEES,

v.

OLD



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

ENTERPRISE FARMS, LTD., et al., Defendants-Appellants

544 N.E.2d 998, 188 Ill. App. 3d 920, 136 Ill. Dec. 223 1989.IL.1363

Appeal from the Circuit Court of St. Clair County; the Hon. Patrick J. Fleming, Judge, presiding.

APPELLATE Judges:

JUSTICE GOLDENHERSH delivered the opinion of the court. WELCH, P.J., and HARRISON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GOLDENHERSH

Defendant O'Fallon United Church of Christ (hereinafter Church) appeals from an order of the circuit court of St. Clair County denying its motion for summary judgment. Plaintiff Anthony Logan, a minor, along with his mother, Jo Ann Berry, appeal from an order of the circuit court of St. Clair County granting summary judgment in favor of codefendant Old Enterprise Farms, Ltd. (hereinafter Farms). Additionally, the trial court found that the Recreational Use of Land and Water Areas Act (the Act) (Ill. Rev. Stat. 1983, ch. 70, pars. 31 through 37) was the statute applicable to the land in question. In this cause, the parties raise a number of issues. We find the determining issues to be (1) whether the trial court erred in denying Church's motion for summary judgment and in granting Farms' motion for summary judgment, and (2) whether the Act (Ill. Rev. Stat. 1983, ch. 70, pars. 31 through 37) is the applicable statute governing defendants' liability to plaintiffs. We affirm the order of the circuit court of St. Clair County denying Church's motion for summary judgment, reverse and remand the order of the circuit court of St. Clair County granting Farms' motion for summary judgment, and reverse and remand the order of the circuit court of St. Clair County making the Act applicable to both defendants.

Plaintiff Anthony Logan, a 15-year-old boy, was left a quadriplegic after he fell from a tree to which a rope swing was attached. The injury occurred on property owned by Farms. At the time, plaintiff was attending a picnic organized by members of the Church's consistory.

Farms is a corporation owned by three families, the Ellerbrakes, the Schrivers, and the Aregoods. It is located off what is commonly known as the Troy-O'Fallon Road in St. Clair County. Farms was formed in 1972, after the three families acquired approximately 122 acres of land. The land is divided into six separate plats, each of which is taxed separately. The injury occurred on a separate 1.36-acre tract which is known as the "old school house lot." As part of the sales agreement, the previous owner had the exclusive right for 10 years to use the school house which sits on the 1.36-acre tract. In 1982, Farms gained exclusive control over the school house which has been used as a clubhouse. According to two of the owners, Richard Ellerbrake and Jack Aregood, this 1.36-acre tract, complete with lake, is used primarily, if not exclusively, for recreational purposes.

Jack Aregood, a shareholder in Farms, was an associate pastor at the Church. Aregood used the clubhouse on different occasions in connection with church activities, including parties for junior high and senior high youth fellowships. The lake was used at least two to three times per week during the summer by members of Farms.

On August 7, 1983, plaintiff, Anthony Logan, accompanied his parents to a church picnic for consistory members. Reverend Aregood had offered use of the lake and the clubhouse for the church picnic. All activities in conjunction with this picnic occurred on the 1.36-acre tract known as the school house lot. Those in attendance at the picnic were welcome to use the lake to swim. There was also a rope swing attached to a tree which was used to swing into the lake. The tree was within the 1.36-acre lot. Plaintiff estimated he had been to this property on at least 24 previous occasions during the summer of 1983 with Christopher Ellerbrake, a friend, whose parents were also shareholders in Farms. Plaintiff had used the rope swing several times prior to the day of his injury. On these occasions, the rope swing would periodically become entangled in the upper branches of the tree upon release by the person jumping from the swing. Plaintiff estimated that the rope swing would get caught in the branches about 1 out of every 5 to 10 swings or two to three times per visit. Plaintiff had seen various boys climb the tree in the past to untangle the rope swing. Because the rope would get caught in the tree, a piece of yellow plastic had been placed around the rope and limbs had been cut in an attempt to rectify this problem.

Christopher Ellerbrake, 17 years old at the time of plaintiff's injury, was aware of the propensity for the rope to become entangled. In fact, he had used a hand saw to cut some branches from the upper portion of the tree to stop the rope from becoming entangled. At one time, he had tied a piece of rope around a metal bolt in order to throw that at the rope swing in the hopes of knocking the swing from the branches. This method was discarded when, during an attempt to free the rope swing, the bolt fell out of the rope and hit him in the face, causing him to receive a number of stitches. Christopher's father, Richard, knew of his son's injury and knew that the rope could get entangled. Plaintiff himself had been injured on a previous occasion when using the rope swing. Plaintiff stated that he had hit his knee on a metal post located near the rope swing while swinging on the rope. Ken Shepherd, another friend of Christopher Ellerbrake's, had also injured his leg on the rope swing in the past.

On the day of the accident, a wooden ladder was placed at the base of the tree to which the rope swing was attached. The ladder was owned by Farms. Plaintiff stated that the ladder had been up against the tree each time he had visited the clubhouse. The rope swing was hanging freely when plaintiff arrived on the premises. Plaintiff used the swing 5 to 10 times before it got caught in the tree. No one else used it during the time plaintiff used it. His parents watched him use the swing and did not caution him about using it. When the rope got caught, plaintiff waited a few minutes before attempting to retrieve it. Plaintiff then climbed the ladder, as he had seen others do, got up in the tree, and loosened the rope. The rope then became entangled in some lower branches. Plaintiff's brother, Victor Logan, then attempted to completely free the rope. Plaintiff began his descent from the tree. Before he reached the ladder, he fell and woke up on the ground. Plaintiff does not know how he fell.

Plaintiff's parents were less than 22 feet away from the tree. Plaintiff's mother saw him swing approximately three to five times prior to the accident. She saw the rope get caught in the tree, but did not warn or caution her son about climbing the tree. Plaintiff's stepfather saw plaintiff swing on the rope several times before he was injured. He did not consider the swing to be dangerous. Before plaintiff climbed the ladder, plaintiff's stepfather cautioned him to be careful. According to plaintiff's stepfather, he made some cautionary remarks because the ladder looked steep to him. Reverend Aregood watched plaintiff as he climbed the ladder. He did not attempt to stop plaintiff, but stated that he might have told him to be careful. Reverend Aregood stated that he had seen the swing get caught in the branches on previous occasions. In the past, he had encouraged those using the swing to let the wind blow down the rope. In addition, Reverend Aregood stated that he had taken down a rope swing earlier in the summer which was located in the same tree when in his estimation it became unsafe due to fraying. A few weeks later, he found that a new rope swing had been put up in the tree. When he saw the new rope, he pulled on it to make sure that it was fastened securely to the tree.

Plaintiff stated that this was not the same rope swing that had always been used. However, Christopher Ellerbrake, who was the most frequent user of the rope swing, and who had put the rope swing up in the tree, said that this was the only rope that had ever been in the tree.

Several picnickers witnessed the fall or at least plaintiff lying on the ground after the fall. Neither plaintiff nor his family knew why he fell. One independent witness, Mark Everett, a consistory member, testified that he clearly saw a branch approximately 4 to 4 1/2 inches thick snap at the trunk when plaintiff stepped on it, thereby causing plaintiff to fall. Other witnesses testified that they heard a loud crash which might have been the breaking of the branch, while still others insisted that they did not see or hear a branch break prior to plaintiff's fall. All witnesses testified that the tree was in good shape and did not appear to have dead branches. The only thing that is clear is that it will most likely never be known why plaintiff fell from the tree.

Plaintiff's first amended complaint alleged negligence on the part of Farms in failing to maintain the premises and the rope swing in a proper and safe condition and failing to warn plaintiff of the dangerous condition. As against Church, plaintiffs alleged that it negligently failed to provide adequate supervision of the picnic area, plaintiff, and the rope swing area where the injury occurred, and failed to warn plaintiff of the dangerous conditions existing on the premises. Church filed a motion for summary judgment. Farms filed an alternative motion for summary judgment or a motion to dismiss. Additionally, Farms argued that the Act (Ill. Rev. Stat. 1983, ch. 70, pars. 31 through 37) was applicable and limited its liability. Plaintiffs filed memoranda in opposition to the motions for summary judgment filed by both defendants. Responses to plaintiff's memoranda were filed by both defendants.

On May 6, 1987, the trial court heard arguments on motions for summary judgment. The court entered an order finding that the Act applied, and on June 22, 1987, granted the motion for summary judgment filed by Farms. On September 29, 1987, the trial court entered an order denying Church's motion for summary judgment. Both cases have been consolidated for purposes of appeal.

The first issue on appeal is whether summary judgment was a proper Disposition of the case for either of the defendants. We must first point out that we can find nothing to distinguish these two defendants. We believe that both defendants are similarly situated so as to make the trial court's alternative rulings on defendants' motions for summary judgment inconsistent. As similarly situated defendants, the trial court should have granted summary judgment for both defendants or denied summary judgment for both defendants.

Defendants contend that this case involves a simple, patent danger of falling and, therefore, neither defendant owes a duty to plaintiff. Defendants argue that there is no duty on the part of an owner or occupier of land to warn children of the obvious risk of falling out of a tree. Plaintiffs respond that both defendants have wrongfully categorized this cause of action as one of simply falling, arguing that there are factual issues as to the safety of the rope swing, the safety of the tree, ...


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