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09/19/89 Rogelio Salinas Et Al., v. Chicago Park District

September 19, 1989

SALINAS, DECEASED, PLAINTIFFS-APPELLANTS

v.

CHICAGO PARK DISTRICT, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

ROGELIO SALINAS et al., Adm'rs of the Estate of Evelia

545 N.E.2d 184, 189 Ill. App. 3d 55, 136 Ill. Dec. 660 1989.IL.1438

Appeal from the Circuit Court of Cook County; the Hon. Thomas E. Hoffman, Judge, presiding.

APPELLATE Judges:

JUSTICE DiVITO delivered the opinion of the court. BILANDIC, P.J., and SCARIANO, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DIVITO

Plaintiffs, Rogelio and Socorro Salinas, as administrators of the estate of their daughter, Evelia Salinas, Sought recovery from defendant, the Chicago Park District, for the injuries and wrongful death of Evelia caused by her fall from a slide located on property owned and maintained by defendant. Following the circuit court's grant of summary judgment in favor of defendant, plaintiffs appealed, raising two issues: (1) whether the circuit court erred in ruling that no triable issue of fact existed, and (2) whether the circuit court erred in determining that defendant owed no duty of care to their daughter, who, plaintiffs contend, should have been treated as a child of tender years.

According to the deposition of her mother, Evelia, eight years old at the time of her fall, was a "mongoloid" child, which she understood to mean that Evelia would develop very slowly. Between the ages of four and five, Evelia attended Morris Inter-American Magnet School, described by her mother as a "special" school; she then attended three years of kindergarten at Louis J. Agassiz School. Evelia suffered from poor speech, which only her mother could understand. Evelia did not receive any special education schooling or services during the summer.

On July 28, 1982, her mother took Evelia to a Chicago Park District park located at Racine and Draper, where the two of them were in the habit of going at least once or twice a week. In the park there was a slide, approximately five feet high with eight steps leading to a large circular platform on the top which was one step above the eighth, or top step.

Evelia walked over to the slide and began climbing the stairs. Her mother was watching as Evelia started to climb and last saw her when she was on the fourth step climbing to the fifth. Her mother turned to speak to a friend and then turned back when she heard Evelia strike the ground. Evelia was taken to Children's Memorial Hospital, where she died on August 12, 1982, as a result of head injuries sustained in the fall.

Defendant moved for summary judgment on the grounds that it owed no duty to protect Evelia from the fall and that plaintiff had offered no evidence that any defect in the slide proximately caused the accident. On March 1, 1988, following submission of memoranda by both parties and a hearing, the circuit court granted the motion for summary judgment. For the following reasons, we affirm. I

Plaintiffs first contend that whether the unsafe and defective condition of the slide proximately caused Evelia to fall is a triable issue of fact. In support of this contention, plaintiffs presented the testimony of Theodora Briggs Sweeney, a consultant in the area of playground safety. Sweeney offered her opinion that the platform of the slide was defectively installed because there was a bar across the very top of the stairs which made it difficult for children to gain access to the platform. She also stated that the asphalt surface beneath the slide was an unsuitable surface and created a dangerous condition which children could not appreciate.

Summary judgment is properly granted if the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c); Alop v. Edgewood Valley Community Association (1987), 154 Ill. App. 3d 482, 484, 507 N.E.2d 19, citing Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.) In order to withstand a motion for summary judgment, the nonmoving party must come forward with evidentiary material that establishes a genuine issue of fact. (Murphy v. Urso (1980), 83 Ill. App. 3d 779, 404 N.E.2d 287, aff'd in part, rev'd in part on other grounds (1981), 88 Ill. 2d 444, 430 N.E.2d 1079.) Absent an abuse of discretion by the trial court, summary judgment will not be reversed. Fearon v. Mobil Joliet Refining Corp. (1984), 131 Ill. App. 3d 1, 475 N.E.2d 549.

If a slide is defective and the defect causes a fall, a landowner may be liable for injuries incurred. (Scarano v. Town of Ela (1988), 166 Ill. App. 3d 184, 520 N.E.2d 62; Kirby v. Macon Public School District No. 5 (1988), 169 Ill. App. 3d 416, 523 N.E.2d 643.) However, proximate cause can be established only where there is reasonable certainty that defendant's acts caused the injury. (Salinas v. Werton (1987), 161 Ill. App. 3d 510, 515 N.E.2d 142; Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 416 N.E.2d 328.) Where, from the proven facts, the nonexistence of the fact to be inferred appears to be just as probable as its existence, then the Conclusion that it exists is a matter of speculation, surmise, and conjecture, and a trier ...


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