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December 28, 1995


Appeal from the Circuit Court of Cook County. Honorable Kenneth Gillis, Judge Presiding.

As Corrected January 3, 1996. Petition for Leave to Appeal Denied April 3, 1996.

The Honorable Justice Sheila M. O'brien delivered the opinion of the court: Hoffman, P.j., and Cahill, J., concur.

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

The Honorable Justice SHEILA M. O'BRIEN delivered the opinion of the court:

Plaintiff, William C. Palmer, filed a second amended complaint to recover damages for injuries allegedly caused by willful and wanton misconduct on the part of defendant, the Chicago Park District. The trial court dismissed plaintiff's second amended complaint with prejudice pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)). Plaintiff filed a motion to reconsider, arguing the court should allow him to file a third amended complaint, which he attached to the motion. The trial court denied plaintiff's motion, although the court did allow the third amended complaint to "stand in substitution of the second amended complaint *** to complete the record for review." Plaintiff appeals the trial court's order denying him leave to file the third amended complaint. We reverse and remand.

The trial court has broad discretion in ruling upon a motion to amend pleadings, and its ruling on the matter will not be disturbed absent an abuse of discretion. ( In re Estate of Nicholson (1994), 268 Ill. App. 3d 689, 695, 644 N.E.2d 47, 205 Ill. Dec. 831.) To determine whether the trial court abused its discretion in this case, we consider four factors: (1) whether the proposed third amended complaint cures the defective pleading by stating a cause of action sufficient to withstand a section 2-615 motion to dismiss; (2) whether defendant would sustain prejudice or surprise if plaintiff is allowed to file his proposed third amended complaint; (3) whether the proposed third amended complaint is timely; and (4) whether plaintiff had previous opportunities to amend his complaint. Nicholson, 268 Ill. App. 3d at 695.

We begin our analysis by determining whether plaintiff's third amended complaint states a cause of action sufficient to withstand a section 2-615 motion to dismiss. In ruling on a section 2-615 motion to dismiss, the court accepts as true all well-pleaded facts and all reasonable inferences that can be drawn therefrom. ( Kolegas v. Heftel Broadcasting Corp. (1992), 154 Ill. 2d 1, 8-9, 607 N.E.2d 201, 180 Ill. Dec. 307.) The court should not dismiss a complaint under section 2-615 unless it clearly appears no set of facts could be proved under the pleadings that would entitle plaintiff to relief. ( Johnson v. George J. Ball, Inc. (1993), 248 Ill. App. 3d 859, 863, 617 N.E.2d 1355, 187 Ill. Dec. 634.) In making such a determination, the court must interpret the allegations of the complaint in the light most favorable to plaintiff. Kolegas, 154 Ill. 2d at 9.

Plaintiff's third amended complaint alleges that on July 24, 1992, defendant had under its supervision, maintenance and control a park known as "331 Playlot Park" (hereinafter playlot) located on the southwest corner at the intersection of 66th Street and Woodlawn Avenue in the City of Chicago. On July 24, 1992, and for three months prior thereto, a wire mesh fence 30 feet long and 3 feet high had been lying on its side "along the westerly edge of the playlot starting at approximately [35] feet south of the south curb of 66th Street and running [30] feet south along the west sidewalk of Woodlawn Avenue." Sections of the wire fencing had torn and were lying "in the form of loops" on the ground and sidewalk. The fallen fence was supposed to run along the westerly edge of the playlot to protect children from the dangers of traffic on Woodlawn Avenue.

On July 24, 1992, plaintiff and his two-year-old daughter, Brittany, were using the playlot. Brittany ran from the playlot through the fallen fence area into Woodlawn Avenue. Plaintiff ran after her to stop her from entering the street. However, he tripped on the fallen fence and caught his foot in a loop of the torn metal lying on the perimeter of the lot. As a result, plaintiff fractured his right leg.

Plaintiff alleges that defendant assigned employees to daily inspect, maintain and repair the playlot. Therefore, defendant knew or should have known about the fallen fence. Plaintiff complains defendant committed willful and wanton misconduct by failing to protect against, warn of, or repair the fence.

Defendant responds that to plead a sufficient cause of action for willful and wanton misconduct, plaintiff must allege the existence of a duty owed by defendant to plaintiff. (See Bialek v. Moraine Valley Community College School District 524 (1994), 267 Ill. App. 3d 857, 860, 642 N.E.2d 825, 204 Ill. Dec. 924.) Defendant argues it owed no duty to plaintiff to protect against, warn of, or repair the fence, because the condition of the fence was open and obvious.

However, in Ward v. K Mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223, 143 Ill. Dec. 288, a negligence action, our supreme court rejected the traditional rule that an owner or occupier of land has no duty under any circumstances to protect entrants from conditions on his land that are open and obvious. Instead, in determining whether a duty exists, a court must inquire into whether the landowner "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.) Further, Ward emphasized that the following traditional factors must be taken into account in assessing the scope of a landowner's duty: the likelihood of injury and the possible serious nature of such an injury; the magnitude of the burden of guarding against the injury; and the consequences of placing that burden upon the landowner. Ward, 136 Ill. 2d at 151.

In Ward, plaintiff bought a large bathroom mirror at a K mart store. After paying for the mirror, plaintiff picked it up and began to exit the store through the "customer door." Two five-foot-tall concrete posts stood just outside the door. ( Ward, 136 Ill. 2d at 136.) Because the mirror blocked his view as he exited the store, plaintiff did not see the posts and walked into one of them, injuring himself. ( Ward, 136 Ill. 2d at 138.) Plaintiff acknowledged that he had walked past the post when entering the store and admitted he was at least "subconsciously" aware of its presence. Ward, 136 Ill. 2d at 137.

The supreme court found K mart owed plaintiff a duty to protect him from the risk of colliding with the post, holding that one could reasonably foresee a customer shopping in the K mart might, even in the exercise of reasonable care, momentarily forget the presence of the posts he previously encountered by entering through the customer door. ( Ward, 136 Ill. 2d at 154.) One could also reasonably foresee that a customer carrying a large item he had bought in the store might be distracted and fail to see the post upon exiting through the door. ( Ward, 136 Ill. 2d at 154.) Finally, the court noted the ...

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