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02/17/95 RAY HOYE AND NETHELLA HOYE v. ILLINOIS

February 17, 1995

RAY HOYE AND NETHELLA HOYE, PLAINTIFFS-APPELLANTS,
v.
ILLINOIS POWER COMPANY, AN ILLINOIS CORPORATION, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Macon County. No. 93L133. Honorable John L. Davis, Judge Presiding.

As Corrected March 31, 1995.

Honorable John T. McCULLOUGH, J., Honorable Carl A. Lund, J., Honorable Robert J. Steigmann, J., Concurring. Lund and Steigmann, JJ., concur.

The opinion of the court was delivered by: Mccullough

JUSTICE McCULLOUGH delivered the opinion of the court:

Plaintiffs Ray and Nethella (also spelled Nathellah in the record) Hoye appeal from an order of the circuit court of Macon County dismissing their second-amended complaint against defendant Illinois Power Company for failure to state a cause of action. Plaintiffs sought to recover damages for personal injuries to Ray and Nethella's loss of consortium after Ray was rendered a quadriplegic when he dove off a pontoon boat into Clinton Lake. Plaintiffs attempted to recover under theories of negligence and willful and wanton misconduct.

The issues on appeal are whether (1) defendant is immune from liability under the Recreational Use of Land and Water Areas Act (Recreational Use Act) (745 ILCS 65/1 et seq. (West 1992)) and (2) plaintiffs' second-amended complaint failed to state a cause of action for willful and wanton misconduct. We affirm.

Counts I and II of plaintiffs' second-amended complaint attempted to allege causes of action for premises liability under a theory of negligence. On April 20, 1978, defendant and the Illinois Department of Conservation (DOC) entered into a 40-year lease agreement whereby DOC leased Clinton Lake from defendant in order to provide recreational facilities to the public. The terms of the lease need not be set out in detail, although we note that defendant retained a great deal of control over the area to ensure the continued use of the lake for cooling water and the surrounding area for other purposes related to the Clinton Nuclear Power Station.

The complaint further alleged that DOC charged a fee to persons using the lake for recreational purposes, including the beach and swimming areas, and that defendant leased a marina on the lake to an operator and received a percentage of the fees charged persons docking their boats at the marina for recreational use of the lake. According to the complaint, on July 7, 1991, plaintiff was on a pontoon boat anchored at the northeast side of the beach and swimming area. Plaintiff dove into the lake from the boat, struck his head, and sustained injuries rendering him paralyzed. In the negligence counts, it was alleged that defendant failed to (1) prohibit diving from boats in the area where the boat was anchored, (2) supervise the area to prevent diving from boats, and (3) post warnings that the area was too shallow to dive in.

The allegations of the willful and wanton counts were substantially the same. In addition, however, plaintiffs alleged that, before July 7, 1991, defendant (1) knew persons anchored boats at the northeast side of the beach and swimming area, (2) knew persons dove from such boats, (3) knew or should have known there were sandbars or other shallow areas so that it was unsafe to dive, and (4) despite this knowledge, failed to (a) prohibit diving in the area where the boat was anchored, (b) supervise the area to prevent diving from boats, (c) post warnings indicating the area was too shallow to dive in, and (d) require DOC in the lease with defendant to do (a), (b), or (c).

The second-amended complaint was dismissed for failure to state a cause of action pursuant to section 2-615(a) of the Illinois Code of Civil Procedure (735 ILCS 5/2-615(a) (West 1992)). Without accepting unsupported conclusions of fact or law in the complaint, we take as true all well-pleaded facts, and the reasonable inferences therefrom, in determining de novo whether there are sufficient facts alleged in the pleading which, if proved, could entitle plaintiff to relief. Kolegas v. Heftel Broadcasting Corp. (1992), 154 Ill. 2d 1, 9, 607 N.E.2d 201, 205-06, 180 Ill. Dec. 307; Creative Entertainment, Inc. v. Lorenz (1994), 265 Ill. App. 3d 343, 351, 638 N.E.2d 217, 222, 202 Ill. Dec. 571; Toombs v. City of Champaign (1993), 245 Ill. App. 3d 580, 583, 615 N.E.2d 50, 51, 185 Ill. Dec. 755.

The Recreational Use Act provides that an owner of land does not owe a duty of care (1) to keep the premises safe for entry or use by persons for recreational or conservation purposes, or (2) to warn persons entering for such purposes of natural or artificial dangerous conditions, uses, structures or activities. (745 ILCS 65/3 (West 1992).) The purpose of the Recreational Use Act is "to encourage owners of land to make land and water areas available to the public for recreational or conservation purposes by limiting their liability toward persons entering thereon for such purposes." (745 ILCS 65/1 (West 1992).) As long as the person is invited or permitted to use the land without charge for recreational or conservation purposes, the owner does not (1) assure the premises are safe for any purposes; (2) confer on such person the status of invitee or licensee to whom a duty is owed; (3) assume responsibility or incur liability for any injury to person or property caused by an act or omission of such person or any other person who enters upon the land; or (4) assume responsibility or incur liability for any injury to person or property caused by any natural or artificial condition, structure, or personal property on the premises. (745 ILCS 65/4 (West 1992).) Unless otherwise agreed in writing, these provisions apply to owners of land leased to the State. (745 ILCS 65/5 (West 1992).) The owner of the land may, however, be liable for willful and wanton failure to guard or warn against a dangerous condition, use, structure, or activity. (745 ILCS 65/6(a) (West 1992).) A second exception to the application of the Recreational Use Act arises "where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof." (745 ILCS 65/6(b) (West 1992).) Section 6(b) of the Recreational Use Act expressly provides that consideration received by the owner by reason of a lease to the State or its subdivision is not a charge within the meaning of that section. 745 ILCS 65/6(b) (West 1992).

According to plaintiff, the Recreational Use Act does not apply to this case for two reasons. First, this type of recreational facility was excepted from the application of the Recreational Use Act by the Campground Licensing and Recreational Area Act (Campground Licensing Act) (210 ILCS 95/1 et seq. (West 1992)). Second, a fee was alleged to have been charged to users of the lake by the DOC and a concessionaire of defendant.

After comparing the Campground Licensing Act with the Recreational Use Act, we do not find that the two acts are so manifestly and totally repugnant that the Campground Licensing Act impliedly repeals, in whole or in part, the Recreational Use Act. (See Jahn v. Troy Fire Protection District (Nov. 23, 1994, No. 76906, slip op. at p. 3), Ill. 2d , , N.E.2d , , 202 Ill. Dec. 922.) Indeed, section 25 of the Campground Licensing Act now states, "Nothing in this Act shall be construed to impose any additional duty of care on an owner of land who either directly or indirectly invites or permits without charge, as defined in the Recreational Use of Land and Water Areas Act, any person to use such property for recreational purposes." (210 ILCS 95/25 (West 1992).) Furthermore, "swimming," which is the activity involved in this case, is now removed from the definition of "recreational activities" under the Campground Licensing Act. 210 ILCS 95/2(b) (West 1992) (amended by Pub. Act 84-650, ยง 1, eff. Sept. 20, 1985 (1985 Ill. Laws 4211)); see also 210 ILCS 125/1 et seq. (West 1992) (applicability of the Swimming Pool and Bathing Beach Act to the case at bar is not argued by plaintiff).

In addition, we reject the "casual basis" test formulated in Miller v. United States (N.D. Ill. 1976), 442 F. Supp. 555, aff'd (7th Cir. 1979), 597 F.2d 614, and subsequently applied in Logan v. Old Enterprise Farms, Ltd. (1989), 188 Ill. App. 3d 920, 931-35, 544 N.E.2d 998, 1005-08, 136 Ill. Dec. 223, rev'd on other grounds (1990), 139 Ill. 2d 229, 564 N.E.2d 778, 151 Ill. Dec. 323, and Phillips v. Community Center Foundation & the Children's Farm (1992), 238 Ill. App. 3d 505, 511-18, 606 N.E.2d 447, 451-55, 179 Ill. Dec. 615, as well as subsequent Federal cases. In ascertaining and giving effect to the legislature's intent, we first look to the plain and ordinary meanings of the unambiguous terms employed ( Hernon v. E.W. Corrigan Construction Co. (1992), 149 Ill. 2d 190, 194-95, 595 N.E.2d 561, 562, 172 Ill. ...


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