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01/26/94 GEORGE SITES v. COOK COUNTY FOREST

January 26, 1994

GEORGE SITES, PLAINTIFF-APPELLANT,
v.
COOK COUNTY FOREST PRESERVE DISTRICT, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Judge Stephen A. Schiller, Judge Presiding.

Released for Publication March 18, 1994. As Corrected August 3, 1994.

Cerda, Rizzi, Greiman

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

Plaintiff, George Sites, appeals from the entry of summary judgment in favor of defendant, Cook County Forest Preserve District. Plaintiff argues that tort immunity does not bar his personal injury lawsuit, which alleged that the condition of an access road to a forest preserve constituted a dangerous trap created by defendant. We reverse and remand.

Plaintiff alleged the following in count I of his second amended complaint. On or about July 7, 1985, defendant maintained the Spring Creek Valley Preserve through which ran a county roadway known as Donlea Road (the road). The road was not intended to be used for recreational purposes. On or about July 7, 1985, plaintiff was riding his bicycle on the portion of the road that was in the preserve. It was defendant's duty to avoid creating dangerous conditions on the road. Plaintiff'S bicycle struck a chain-like device that was parallel to and across the road causing his bicycle to crash on the road. Defendant was careless and negligent in: (a) failing to warn plaintiff of the impending danger of the chain-like device; (b) failing to appropriately mark the chain-like device to avoid foreseeable injuries; (c) erecting the chain-like device parallel to and across the road; and (d) failing to guard or warn of a dangerous condition of which defendant had actual or constructive notice, in violation of section 3-109(c)(1) of the Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 3-109(c)(1). Plaintiff suffered physical and emotional injury.

Count II alleged that defendant was guilty of willful and wanton conduct. Plaintiff alleged in count III that the willful and wanton conduct alleged in count II violated sections 3-109(c)(1) and (2) of the Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, pars. 3-109(c)(1), (2)).

Defendant admitted in its answer that it maintained the forest preserve but denied that the road was a county road. Defendant denied that the road was not intended to be used for recreational purposes.

Plaintiff stated the following in his response to defendant's request to admit facts. Plaintiff was riding his bicycle as part of training for a race. Plaintiff was not using the road as access to the forest preserve. Plaintiff did not see signs indicating that the road was closed to bicyclists or others except for motorized vehicles, motorcyclists, and snowmobiles. Plaintiff did not observe that the bicycle riding area in the forest preserve was closed and marked with a chain and a sign.

Plaintiff testified to the following at his deposition. He was riding his bicycle down a hill. He could not see very far because of the heavy foliage. He noticed "a faint part of yellow over on the right-hand side," and then he moved over to the left. He did not realize that there was a barrier all the way across the road. He was approximately 25 yards from it, and he braked as hard as he could but could not stop in time before he hit the barrier. A closed sign was not there. The posts were not painted yellow.

Defendant moved for summary judgment and argued the following. The road was owned by defendant. The road provided access to recreational and scenic areas in the forest preserve, was part of the preserve, and was itself a hiking trail and recreational area. Plaintiff's lawsuit was barred under section 3-107 of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 3-107) because plaintiff's alleged injury was caused by a condition of a road of the type covered by that statute.

The supporting affidavit of Herbert M. Johnson swore the following. He was defendant's employee in the capacity of superintendent of maintenance and operations. The road was owned by defendant and was used to provide access to recreational and scenic areas of the forest preserve. The road was neither a city, town, or village street nor a highway. Motorized vehicular traffic was prohibited on the road. In addition to the road's purpose in providing access to recreational and scenic areas of the preserve, the road was maintained for recreational purposes as a hiking trail and recreational area. Posted on the west end of the road was a sign stating that the road was closed. On the east end of the road a sign was posted stating "no motorized vehicles." All the chain-like devices, which were properly called cable gates, had as their purpose the deterrence of motor vehicle traffic along the road in order to protect hikers and others using the road for recreational purposes.

William Carrigan testified to the following at his deposition. He was employed by defendant as a division superintendent. A cable gate was an eight-foot piece of wood approximately eight-by-six inches wide placed approximately four feet into the ground with four feet being above the ground. There was an "i-bolt" through the center of the board with a cable looped through the i-bolt. Two residents who lived on the road would open the gate as they came and went. When defendant was there doing work, employees would open the gate. Otherwise, the gate was closed with the cable. Summary judgment was entered in favor of defendant.

Plaintiff argues the following. Section 3-107 of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 3-107), providing immunity for liability for injury caused by a condition of a road that provides access to recreational areas, does not provide immunity for defendant because injury was caused by an artifice constructed above a road. The ...


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