APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE PATRICK E. McGANN, JUDGE PRESIDING.
Presiding Justice Scariano delivered the opinion of the court: Hartman and DiVITO, JJ., concur.
The opinion of the court was delivered by: Scariano
PRESIDING JUSTICE SCARIANO delivered the opinion of the court:
On June 25, 1991, plaintiff, a City of Chicago employee, was erecting a plastic snow fence in Grant Park in preparation for the annual "Taste of Chicago" festival when he fell through an opening in the chain-link fence situated on the east wall of the Illinois CentralRailroad tracks, landing about 15 feet below onto the tracks. He was hospitalized for nine days as a result of his injuries.
On May 15, 1992, plaintiff filed his complaint in the circuit court of Cook County alleging that defendant, owner of the property extending from the east wall of the tracks, breached its duty to maintain the area in a safe condition by
"(a) negligently and carelessly failing to repair a section of the fence atop the east wall of the Illinois Central Railroad tracks *** exposing Plaintiff and others to a substantial drop-off to the railroad tracks below;
(b) negligently and carelessly maintaining the area in a condition which was not safe for the Plaintiff and others ***;
(c) negligently and carelessly allowing a substantial section of the east wall of the Illinois Central Railroad tracks to remain unfenced ***."
Defendant filed a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure, asserting that it was immune from liability under the Local Government and Governmental Employees Tort Immunity Act (Tort Immunity Act). (Ill. Rev. Stat. 1991, ch. 85, par. 3-106 now codified at 745 ILCS 10/3-106 (West 1993).) On June 18, 1992, plaintiff filed his amended complaint, adding Illinois Central Railroad Company as a defendant. The amended complaint, like his initial complaint, sounded in negligence. Illinois Central Railroad filed a motion to dismiss, stating that it did not "own, operate, control or maintain any real property, tracks, rails, walls or fences at or near or below Columbus Drive between Balboa Street and Harrison Street ***." By agreed order, Illinois Central Railroad was dismissed from the case. On November 5, 1992, the court granted defendant's motion to dismiss without prejudice.
Plaintiff subsequently filed his second amended complaint, adding an allegation that defendant breached its duty to "refrain from willful and wanton conduct" when it
"(a) left a gaping hole in the fence despite their [sic] knowledge that invitees would traverse the area and could fall great distances;
(b) failed to repair a section of the fence atop the east wall of the tracks, *** exposing Plaintiff to a substantial drop-off to the railroad tracks below, despite the fact that invitees, including Plaintiff, would be traversing the area;
(c) allowed a substantial section of the east wall of the tracks to remain unfenced so that the Plaintiff and others were exposed to the substantial drop-off to the railroad tracks below, despite the knowledge of such danger."
Defendant filed a motion to strike and dismiss plaintiff's amended complaint pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure. It asserted that plaintiff did not plead specific facts supporting his claim of willful and wanton conduct, that the risk of falling was an open and obvious danger, and that it was not liable for failing to make improvements on its property.
On December 6, 1993, the trial court dismissed plaintiff's complaint with prejudice. At the hearing on the motion, the judge considered two photographs proffered by plaintiff, although he noted that "in the context of the 2615 [sic] motion, extraneous material other than the pleadings are [sic] not proper ***." The judge observed that the fence is located in an open area unobstructed by foliage or bushes. The judge then explained that to sufficiently allege willful and wanton conduct, plaintiff had to allege that defendant's conduct was intentional or that defendant demonstrated a conscious disregard for his safety. He held that plaintiff's complaint did not adequately ...