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October 31, 1994


Appeal from the Circuit Court of Cook County, Honorable ROBERT BOHARIC, Judge Presiding.

As Corrected November 17, 1994. Released for Publication December 16, 1994.

O'connor, Manning, Buckley

The opinion of the court was delivered by: O'connor

JUSTICE O'CONNOR delivered the opinion of the court:

Defendant, Moraine Valley Community College School District 524 (Moraine) appeals from a $73,069.12 judgment in favor of plaintiff, Bruce Bialek, finding Moraine engaged in willful and wanton conduct which caused injuries to Bialek.

On October 13, 1985, Bialek, age 25, ran into a goalpost on Moraine's property and suffered severe injuries to his face (broken nose) and groin (lacerated penis and gash in lower abdominal region). At the time, Bialek was playing in a football game with adult friends, including John Zieman and Ed Donnelly. The men were not authorized to use the premises on which they located their game; nor did Moraine supervise the game. Bialek and his friends had driven onto Moraine's Ridgeland campus located at 115th Street and Ridgeland Street in Alsip, Illinois and set up a field on which to play. The area they chose was not a demarcated football field. It was a field between two and fifteen acres in size; however, Bialek and his friends chose to play in a corner of the field which contained a single, H-shaped steel goalpost. A metal bracket protruded from one upright of the goalpost. According to both Bialek and his friends, they did not use the goalpost as a goalpost. Rather, they used it as a boundary marker. Although Bialek could not recall seeing the goalpost prior to running into it, he testified that he "must have seen it," and the other players testified that they were aware the post was in their field of play.

At some point during the game, Bialek ran into the post. His friends stated that the accident occurred one hour to an hour and a half into the game. However, according to Bialek, only minutes had elapsed when he collided with the post while running to catch a pass. As he prepared to receive the ball, he turned his head toward the goal and crashed into it face-first. At the same time, his lower abdomen and groin were caught on the metal bracket. He fell to the ground, bleeding. Bialek's friends went to assist him and arranged transport to a nearby hospital, where he underwent treatment for a broken nose. He also received ten stitches in his penis, numerous stitches in his forehead, and a clamp was used to close the wound to his abdomen. Bialek stayed in the hospital for three days and returned to work in three weeks.

Subsequently, Bialek filed suit against Moraine. The first count of his amended complaint, alleging negligence, was voluntarily withdrawn because under section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act, (Ill. Rev. Stat. 1985, ch. 85, par. 1-101 et. seq.), local governmental entities are not liable for negligence on their recreational fields. Count two alleged that Moraine was willful and wanton in its maintenance of its campus in that (a) it failed to remove a dangerous condition - the goalpost and bracket - from its premises; (b) it failed to warn Bialek of the presence of the goalpost and bracket; and (c) it failed to pad the goalpost and bracket. The jury at trial was instructed on this theory of the case.

At trial, employees of Moraine, including Eugene Summer, its chief groundskeeper, Lester Peterson, director of public safety, and Joseph Farancak, its campus operations manager at the time, testified. Summer testified that he was responsible for maintaining the field surrounding Moraine's campus. If a dangerous condition existed, it was his responsibility to rectify it. He and his crew did not consider the goalpost to be a dangerous condition and therefore, never reported or fixed it. He also testified that there were signs posted on the campus informing would-be users of the fields to obtain the college's permission prior to use. Peterson testified that Moraine employed security personnel to remove unauthorized people. Prior to plaintiff, no one had ever complained to the college that the goalpost presented a danger or that it had caused injury. Farancak testified that at Moraine's main campus, the college maintained a football field for organized, supervised football. On this field, the goalposts were padded to protect players who ran into them. However, neither the football team nor the college, in general, used the Ridgeland campus for athletic activities, although at least two independent organizations -- the Oak Lawn boys soccer league and a church softball group -- had used the field for athletic purposes. Because the field was not generally used for athletic purposes, even if Farancak had been aware of the goalpost and bracket, he might not have ordered its removal or padding.

At the close of plaintiff's case, Moraine moved for a directed finding in its favor. Moraine argued that it owed no duty to Bialek because the goal post was open and obvious and, furthermore, that the evidence failed to establish willful and wanton conduct because the school had not received any prior complaints about injuries suffered on the structure. The trial Judge reserved ruling. The jury found for Bialek but found that he was 45% responsible for his injuries. The trial Judge denied Moraine's post-trial motions which raised, again, the issues in the motion for directed verdict.

Moraine argues that the trial court should have granted its motion for directed verdict at the close of the plaintiff's case because it did not owe Bialek a duty to remedy an open and obvious condition on its premises. Alternatively, the school contends that if it did owe such a duty, Bialek failed to establish that it acted in a willful and wanton manner in its upkeep of the goalpost.

In assessing the denial of a motion for a directed verdict, we view the evidence presented and make all reasonable inferences in a light most favorable to the plaintiff. We will overturn the trial court's ruling only if the evidence so overwhelmingly favored the defendant that no contrary judgment on the evidence could stand. LaSalle National Bank & Trust Co. v. City of Chicago (1984), 128 Ill. App. 3d 656, 470 N.E.2d 1239, 83 Ill. Dec. 819.

Under section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev Stat. (1985), ch. 85, par. 3-106), local entities are not liable for ordinary negligence in the upkeep of parks, playgrounds, and athletic fields. They are only liable for willful and wanton conduct. As in ordinary negligence cases, a defendant must owe a duty to the plaintiff before plaintiff can allege that the defendant's conduct was willful and wanton. ( Lerma v. Rockford Blacktop Constr. Co. (1993), 247 Ill. App. 3d 567, 571, 617 N.E.2d 531, appeal denied, 153 Ill. 2d 560, 624 N.E.2d 808). The question of the existence of a duty is one of law for this court to decide. ( Kirk v. Michael Reese Hosp. & Medical Ctr. (1987), 117 Ill. 2d 507, 525, 513 N.E.2d 387, 111 Ill. Dec. 944, cert. denied, (1988) 485 U.S. 905, 99 L. Ed. 2d 236, 108 S. Ct. 1077). Moraine argues that it owed no duty to plaintiff to remedy a condition on its property which was open and obvious, and the dangers of which could easily be appreciated and avoided by a child let alone a group of adults, including the then 25 year-old Bialek. Bialek counters that the doctrine of distraction, as enunciated by our supreme court in Ward v. K-Mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223, 143 Ill. Dec. 288, conferred a duty upon Moraine.

In Ward v. K-Mart Corp., 136 Ill. 2d at 142-155, a negligence action, the court revisited the standards applicable to the determination of whether a landowner owes an invitee a duty of ordinary care to warn of or remedy an open and obvious condition. The court rejected the longstanding rule that when a dangerous condition is open and obvious, a landowner need never warn or otherwise protect those who might encounter the condition. Rather, the court held that a duty to warn of or to remedy an open and obvious condition arises when, under the facts of the case, "the defendant should reasonably anticipate injury to those entrants on his premises who are generally exercising reasonable care for their own safety, but who may reasonably be expected to be distracted * * * or forgetful of the condition after having momentarily encountered it." Ward, 136 Ill. 2d at 152, citing, Restatement (Second) of Torts sec. 343A (1965).

In this case, Bialek was not an invitee, nor even a licensee. Rather, he was a trespasser, to whom is owed a lesser standard of care, i.e. to be protected only from willful and wanton conduct. ( Helms v. Chicago Park District (1994), 258 Ill. App. 3d 675, 630 N.E.2d 1016, 196 Ill. Dec. 851). However, given the restriction on liability imposed by the Tort Immunity Act, these status distinctions are of moment only insofar as they shed light on whether Ward applies in an action alleging willful and wanton conduct.

Indeed, no court has yet addressed whether the duty analysis adopted in Ward applies to a situation in which the landowner's tort liability is restricted to its willful and wanton conduct. Although Bialek's injuries occurred prior to the decision in Ward, the pleadings in this case, as well as the briefs ...

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