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05/20/94 ERIN SNYDER v. JACK OLMSTEAD

May 20, 1994

ERIN SNYDER, BY HER MOTHER AND NEXT FRIEND, DAWN SNYDER; GRANT SNYDER, BY HER MOTHER AND NEXT FRIEND, DAWN SNYDER; WHITNEY SNYDER, BY HER MOTHER AND NEXT FRIEND, DAWN SNYDER; DAWN SNYDER AND LYLE SNYDER, PLAINTIFFS-APPELLANTS.
v.
JACK OLMSTEAD, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Knox County, Illinois. No. 92-L-63. Honorable Bufford W. Hottle, Judge, Presiding.

Rehearing Denied June 23, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Present - Honorable Peg Breslin, Justice, Honorable Tobias Barry, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Barry

JUSTICE BARRY delivered the opinion of the court.

Following a tractor accident that occurred on defendant's property, plaintiffs brought suit accusing defendant of negligence and willful and wanton conduct. Defendant filed a motion for judgment on the pleadings, asserting that he was immune from negligence claims under the Recreational Use of Land and Water Areas Act. (745 ILCS 65/1 et seq. (West 1992).) Defendant also filed a motion to dismiss, challenging the sufficiency of the willful and wanton allegations. The trial Judge dismissed all counts, and plaintiffs filed this appeal. We reverse the dismissal of the negligence counts, and affirm the dismissal of the willful and wanton counts.

In their complaint, plaintiffs Erin, Grant, Whitney, Dawn and Lyle Snyder alleged that defendant Jack Olmstead held a fifty percent (50%) beneficial interest in a land trust that owned a parcel known as Wallstead Acres. On this property, Olmstead owned, stored and maintained a farm tractor equipped with a bucket. Plaintiffs alleged that the tractor's hand brake could be disengaged with light pressure applied to the tractor's brake pedals, and defendant knew this.

According to the complaint, defendant Olmstead did not allow persons on Wallstead Acres unless they had a specific invitation and he was on the property. On September 3, 1991, defendant invited plaintiffs and two other families to a picnic outing at Wallstead Acres. During the course of the picnic, defendant operated the tractor and gave rides to Erin, Whitney and Grant Snyder, ages 10, 9 and 6 respectively. After the rides, defendant set the hand brake but neither put the tractor into gear nor lowered the bucket so that it made contact with the ground. After parking the tractor, defendant allegedly allowed the children to play on the tractor and failed to warn them that the braking system could be easily disengaged.

The children accidentally disengaged the brake. The tractor rolled down an incline and struck a tree. Erin Snyder's leg was severed.

Plaintiffs claimed that the defendant's actions were negligent as well as willful and wanton. Erin Snyder sought damages for pain, suffering, anguish, disability, and future lost wages and medical bills. Her parents, Dawn and Lyle Snyder, sought damages in the amount of the medical bills arising from this incident. Erin's siblings, Grant and Whitney, were also named as plaintiffs, seeking damages for negligent infliction of emotional distress. See Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 75 Ill. Dec. 211, 457 N.E.2d 1; Allen v. Otis Elevator Co. (1990), 206 Ill. App. 3d 173, 150 Ill. Dec. 699, 563 N.E.2d 826.

As aforesaid, defendant responded by filing a motion for judgment on the pleadings, asserting that he was immune from negligence claims under the Recreational Use of Land and Water Areas Act (the Recreational Use Act). (745 ILCS 65/1 et seq. (West 1992).) Defendant also filed a motion to dismiss, challenging the sufficiency of the willful and wanton counts. The trial Judge granted defendant's motions and dismissed all counts.

On appeal, plaintiffs argue that the trial Judge erred in dismissing the negligence counts because (a) the Recreational Use Act does not apply to a situation wherein a land owner invites a small, private group of persons to enter and use property for recreational purposes, and (b) the Act does not immunize a land owner from injuries arising from his own active negligence. Plaintiff also argues that the trial Judge erred in finding that the allegations of willful and wanton conduct were insufficient as a matter of law.

Since the trial court's dismissal order was based upon defendant's motion to dismiss and motion for judgment on the pleadings, this court must accept as true the allegations contained in the complaint. ( Charles v. Seigfried (1993), 251 Ill. App. 3d 1059, 1060, 191 Ill. Dec. 431, 623 N.E.2d 1021; Mitchell v. Waddell (1989), 189 Ill. App. 3d 179, 182, 136 Ill. Dec. 486, 544 N.E.2d 1261.) Here, the complaint alleged that defendant Olmstead did not allow persons on Wallstead Acres unless they had a specific invitation and Olmstead was on the property and that, on September 3, 1991, defendant invited plaintiffs and two other families to a picnic outing at Wallstead Acres.

Thus, the first issue presented is whether the Recreational Use Act extends immunity to a property owner who prohibits the general public from using his property for recreational purposes, but does invite a small, private group of persons to enter and use the property. We conclude that under such circumstances the Act does not apply.

As a general rule, a possessor of land who holds it open to the public is under a duty to the members of the public who enter in response to his invitation to protect them against unreasonable risk of physical harm. ( Loomis v. Granny's Rocker Nite Club (1993), 250 Ill. App. 3d 753, 758, 189 Ill. Dec. 696, 620 N.E.2d 664, citing Restatement (Second) of Torts, sec. 314A (1965).) However, in 1965, the Illinois legislature enacted a statute the purpose of which is "* * * to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes." (Ill. Rev. Stat. 1965, chap. 70, par 31.) Now known as the Recreational Use of Land and Water Areas Act (745 ILCS 65/1 et seq. (West 1992)), the statute has been amended on ...


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