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12/08/89 Mamie Spencer, Adm'r of v. the City of Chicago Et Al.

December 8, 1989





MAMIE SPENCER, Adm'r of the Estate of Patrick James

548 N.E.2d 601, 192 Ill. App. 3d 150, 139 Ill. Dec. 216 1989.IL.1913

Appeal from the Circuit Court of Cook County; the Hon. Thomas P. Quinn, Judge, presiding.


JUSTICE LaPORTA delivered the opinion of the court. EGAN, P.J., and McNAMARA, J., concur.


This is an appeal from an order by the trial court granting the defendants' motion to strike all counts of plaintiff's third amended complaint with prejudice, denying plaintiff leave to file a fourth amended complaint and dismissing the litigation.

On May 5, 1987, while he was in the care of a babysitter, plaintiff's three-year-old son, Patrick, wandered from the house and crossed the street to an unfenced lagoon in Auburn Park where he fell into the water. He was taken immediately to Mitchell/Wyler's Hospital emergency room, where he was pronounced dead.

On April 8, 1988, as administrator of the estate of Patrick Spencer, deceased, plaintiff filed suit under the wrongful death statute (Ill. Rev. Stat. 1987, ch. 70, pars. 1, 2), against the City of Chicago and the Chicago Park District in a one-count complaint alleging the child's wrongful death was caused by defendants' negligence in failing to fence the lagoon, failing to post lifeguards or security personnel and failing to replace graffiti-marked warnings or danger signs.

On May 16, 1988, plaintiff in an emergency motion moved for leave to file a first amended complaint at law. The two-count amended complaint was filed the same date, alleging in count I the wrongful death and the same allegations of negligence from the original complaint, and in count II, alleged plaintiff's appointment as estate administrator, alleged the

Both defendants on June 14, 1988, moved to dismiss the amended complaint pursuant to section 2-619(a)(9) (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(9)) (claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim) and alleged that under the Illinois Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, par. 3-106), defendants were not liable under the ordinary negligence pled by plaintiff because the statute required a showing of willful and wanton conduct by the public entity to impose liability on the public body. Defendants' motions were granted.

On July 12, 1988, plaintiff was given leave to file and did file a second amended complaint in four counts. Count I alleged wrongful death due to ordinary negligence and contained the same allegations of count I of the two prior complaints. Count II alleged the same negligence, wrongful death, pain and suffering and survival of the child's cause of action as alleged in count II of the two prior complaints. Count III on information and belief alleged the lagoon was jointly owned, maintained and controlled by the defendants; that small children frequently played in the vicinity; that defendants should have known or anticipated that the minor plaintiff would be there; that defendants knew or should have known of prior incidents of children coming into contact with the lagoon water; that prior to May 15, 1987, defendants cleaned the lagoon, regulated its water level and patrolled in the vicinity and therefore knew children were frequently in the area; that defendants had a duty to provide adequate safety barriers or guards to protect the public and small children from contact with the lagoon water and should have known of the dangerous condition of the lagoon; that the defendants were engaged in willful and wanton conduct and with indifference and conscious disregard for the minor plaintiff's safety failed to fence the area to prevent access to small children, failed to post lifeguards or security personnel to protect small children from falling into the lagoon and failed to replace defaced warning or danger signs. Count IV alleged the willful and wanton acts of defendants recited in count III and alleged the cause of action survived the child's death.

Defendants moved to strike the second amended complaint, counts I and II, under section 2 -- 619(a)(9) as in prior motions to strike based on

On September 15, 1988, plaintiff moved for and was given leave to file a third amended complaint, which was filed the same date. In the third amended complaint the plaintiff added the following allegations to all four counts of ...

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