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02/08/96 SANDRA J. CONOWAY v. HANOVER PARK PARK

February 8, 1996

SANDRA J. CONOWAY, AS MOTHER AND NEXT FRIEND OF RANDY CONOWAY, A MINOR, AND ROBERT S. CONOWAY, PLAINTIFFS-APPELLANTS,
v.
HANOVER PARK PARK DISTRICT, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable John W. Gustafson, Judge Presiding.

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

Sandra J. Conoway brought an action against defendant, Hanover Park Park District, seeking the recovery of damages for injuries allegedly suffered by nine-year-old Randy Conoway when he fell into a drainage ditch in Community Park. Counts I and II of the complaint were predicated upon negligence. Counts III and IV claimed willful and wanton misconduct. A bench trial was held on the complaint. At the close of plaintiffs' case, defendant moved for a directed finding in its favor pursuant to section 2-1110 of the Code of Civil Procedure (735 ILCS 5/2-1110 (West 1992)). The trial court granted the motion and entered judgment for defendant on all four counts. Plaintiffs appeal. We affirm.

During plaintiffs' case in chief, testimony established that defendant owns and maintains Community Park. At the front of the park is a brick administration building. The back portion of the building contains recreational facilities such as basketball, tennis, and racquetball courts. Surrounding the administration building is a moat constructed to prevent persons from damaging the building, provide security to those employed, and provide drainage for water run-off. As water builds up in the moat, it runs into the drainage ditch and eventually into a large retention pond.

A concrete dam separates the moat from the drainage ditch. Fishing is allowed on the concrete dam and along the banks of the drainage ditch. The public is not authorized to enter the water in the moat, retention pond, or drainage ditch.

On June 26, 1988, Randy Conoway, Kevin Box, Matt Hughes, and Bill Huff were fishing for tadpoles and frogs on the cement dam in Community Park. Kevin bumped into Randy, causing Randy to fall into the drainage ditch. Randy landed "on all fours" in the water about three or four feet from the dam. Randy crawled 12 to 14 feet to the bank. When he reached the top of the bank, Randy noticed his left hand was bleeding.

Randy could not say what cut his hand. However, on the day of the accident the water and banks of the drainage ditch contained sharp glass debris. There was also a metal pole and a telephone pole in the water. Bill Huff noticed that when Randy first came up out of the water, his bleeding hand was on the telephone pole.

In counts I and II of their complaint, plaintiffs alleged defendant acted negligently by (1) failing to fence the drainage ditch and dam or otherwise prevent access to those areas by young children; (2) allowing broken bottles and other debris to accumulate at the bottom of the drainage ditch where it was hidden from view; and (3) failing to warn the public that the drainage ditch contained debris hidden beneath the water. The trial court granted defendant's motion for a directed finding (735 ILCS 5/2-1110 (West 1992)) on counts I and II pursuant to section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act), which states:

"Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury." (Emphasis added.) (745 ILCS 10/3-106 (West 1992).)

Plaintiffs appeal the directed finding in defendant's favor.

Under a section 2-1110 motion for a directed finding, the trial court first determines whether plaintiffs have made out a prima facie case as a matter of law. ( Wehde v. Regional Transportation Authority (1992), 237 Ill. App. 3d 664, 675, 604 N.E.2d 446, 178 Ill. Dec. 190.) If plaintiffs have not established a prima facie case, the trial court should grant defendant's motion and enter judgment in its favor. ( Wehde, 237 Ill. App. 3d at 675.) If plaintiffs have made out a prima facie case, the trial court must weigh plaintiffs' evidence. ( Wehde, 237 Ill. App. 3d at 675.) Contrary to the Pedrick standard for directed verdicts ( Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504), the court does not view the evidence in the light most favorable to plaintiffs. ( Wehde, 237 Ill. App. 3d at 675-76.) Rather, the court considers all the evidence, including evidence favorable to defendant, passes on the credibility of witnesses, draws reasonable inferences from the testimony, and considers the general weight and quality of the evidence. ( Wehde, 237 Ill. App. 3d at 676.) If this weighing process results in negation of some of the evidence necessary to plaintiffs' prima facie case, defendant is entitled to judgment. ( Seymour v. Harris Trust & Savings Bank (1994), 264 Ill. App. 3d 583, 602, 636 N.E.2d 985, 201 Ill. Dec. 553.) On appeal, the reviewing court will not disturb the trial court's ruling unless it is contrary to the manifest weight of the evidence. Wehde, 237 Ill. App. 3d at 676; Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154, 407 N.E.2d 43, 40 Ill. Dec. 812.

The trial court in this case granted a directed finding for defendant on plaintiffs' negligence counts (I and II), ruling that Randy's injuries occurred on public property intended or permitted to be used for recreational purposes. Therefore, pursuant to section 3-106 of the Tort Immunity Act, defendant is liable for those injuries only if it committed willful and wanton misconduct.

Plaintiffs respond that while defendant permitted recreational use of the cement dam upon which Randy fished, it did not permit such use of the ditch into which he fell. Section 3-106 therefore does not apply, and the trial court ...


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