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12/08/95 JEAN MOON v. GREG SMITH

December 8, 1995

JEAN MOON, INDEPENDENT ADM'R OF ESTATE OF TIMOTHY RICHARD MOON, DECEASED, PLAINTIFF-APPELLANT,
v.
GREG SMITH, D/B/A G.S. CONSTRUCTION, GREG SMITH AND LINDA SMITH, INDIV., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of McHenry County. NO. 94-LA-46. Honorable James C. Franz, Judge, Presiding.

Released for Publication January 10, 1996. Petition for Leave to Appeal Denied April 3, 1996.

Presiding Justice McLAREN delivered the opinion of the court: Geiger and Thomas, JJ., concur.

The opinion of the court was delivered by: Mclaren

PRESIDING JUSTICE McLAREN delivered the opinion of the court:

Plaintiff, Jean Moon, the independent administrator of the estate of Timothy Moon, appeals from an order of the trial court which dismissed, apparently under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1994)), two counts of the plaintiff's complaint alleging negligence. We affirm.

At the time of the events leading to these proceedings, the defendants, Greg Smith, Linda Smith, and G.S. Construction, owned property on South River Road in McHenry County, Illinois (the property). Tanya Smith also lived with Greg and Linda Smith on the property. In addition to the Smith family's residence, G.S. Construction operated its business on the property.

The plaintiff alleged that on January 16, 1994, Greg Smith, or his authorized agent, tied nylon ropes, approximately one-quarter inch thick, between trees on the property. The ropes were allegedly put up to prevent access by snowmobiles to the property.

The plaintiff further alleged that on and before January 17, 1994, Tim Moon had been and was a friend and visitor to either the defendants or Tanya Smith. The plaintiff alleged that on January 17, 1994, Tim Moon was invited to the property to visit Tanya Smith and took his snowmobile. Tim Moon was struck in the neck by the nylon rope while operating his snowmobile on the property and died from his injuries on that date.

As executor of the estate of Tim Moon, the plaintiff brought this suit. Count I of the complaint was entitled "Wrongful Death--Negligence," count II was entitled "Survival--Negligence," count III was entitled "Wilful and Wanton--Wrongful Death," and count IV was entitled "Wilful and Wanton--Survival." The defendants' response asked that the trial court dismiss each count, though the defendants failed to cite to a section of the Code of Civil Procedure as authority for such dismissal. The trial court granted the motion to dismiss, apparently under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1994)), with respect to counts I and II. The trial court based its decision upon an exemption provision in the Snowmobile Registration and Safety Act (the Snowmobile Act)(625 ILCS 40/5-1(I) (West 1994)). Counts III and IV remained pending against all defendants.

Subsequently, defendant Tanya Smith moved for summary judgment (735 ILCS 5/2-1005 (West 1994)) as to counts III and IV. The trial court granted that motion, and a separate appeal is proceeding with respect to that order.

The defendants have filed a motion to strike portions of the plaintiff's brief on the basis that the plaintiff cites facts which came to light during Tanya Smith's summary judgment motion. Fairness to both the trial court and the parties dictates that this court consider only the record that was before the trial court. ( Continental Concrete Pipe Corp. v. Century Road Builders, Inc. (1990), 195 Ill. App. 3d 1, 9-10, 142 Ill. Dec. 291, 552 N.E.2d 1032.) Thus, we grant the defendants' motion to strike, and we disregard those portions of the plaintiff's briefs which relate facts outside of the complaint.

The standards regarding our review of an order which grants a section 2-619 motion (735 ILCS 5/2-619 (West 1994)) are well established. Generally, section 2-619 (735 ILCS 5/2-619 (West 1994)) affords a means of obtaining a summary disposition of issues of law or easily proved issues of fact. ( Zedella v. Gibson (1995), 165 Ill. 2d 181, 185, 209 Ill. Dec. 27, 650 N.E.2d 1000; Kubian v. Alexian Brothers Medical Center (1995), 272 Ill. App. 3d 246, 249, 209 Ill. Dec. 303, 651 N.E.2d 231.) Section 2-619(a)(9) allows dismissal when "the claim asserted *** is barred by other affirmative matter avoiding the legal effect of or defeating the claim." (735 ILCS 5/2-619(a)(9) (West 1994).) For purposes of a section 2-619 motion (735 ILCS 5/2-619 (West 1994)), all well-pleaded facts in the complaint are deemed admitted and only the legal sufficiency of the complaint is at issue. ( American National Bank & Trust Co. v. Village of Libertyville (1995), 269 Ill. App. 3d 400, 403, 206 Ill. Dec. 761, 645 N.E.2d 1013.) The question on appeal is "'whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law.'" Zedella, 165 Ill. 2d at 185-86, quoting Kedzie & 103rd Currency Exchange, Inc. v. Hodge (1993), 156 Ill. 2d 112, 116-17, 189 Ill. Dec. 31, 619 N.E.2d 732.

The trial court based its decision to dismiss the negligence counts upon the immunity provision in the Snowmobile Act (625 ILCS 40/5-1(I) (West 1994)). The provision provides, in pertinent part:

"I. Notwithstanding any other law to the contrary, an owner, lessee, or occupant of premises owes no duty of care to keep the premises safe for entry or use by others for snowmobiling, or to give warning of any condition, use, structure or activity on such premises. *** Nothing in this section limits in any way liability which otherwise exists for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity." (Emphasis added.) (625 ILCS 40/5-1(I) (West 1994).)

When construing a statute, a court must ascertain and give effect to the legislature's intent, the best indicator of which is the language of the statute itself. ( First of America Bank v. Netsch (1995), 166 Ill. 2d 165, 181, 209 Ill. Dec. 657, 651 N.E.2d 1105.) If the statutory language is clear, the court must give it effect without resorting to other aids of construction ( Illinois Graphics Co. v. Nickum (1994), 159 Ill. 2d 469, 479, 203 Ill. Dec. 463, 639 N.E.2d 1282) and may not read into the statute exceptions, conditions, or limitations that the ...


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