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08/12/96 JOHN BRADLEY INDLECOFFER AND CINDY RICHTER

August 12, 1996

JOHN BRADLEY INDLECOFFER AND CINDY RICHTER, PLAINTIFFS,
v.
THE VILLAGE OF WADSWORTH, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT (IMMANUEL BAPTIST CHURCH, THIRD-PARTY DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Lake County. No. 93--L--1359. Honorable Stephen E. Walter, Judge, Presiding.

Released for Publication September 17, 1996.

The Honorable Justice Doyle delivered the opinion of the court: Rathje, J., concurs. Justice Inglis, dissenting:

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

The Village of Wadsworth (Village) appeals from a trial court order which dismissed the Village's amended third-party complaint for contribution against third-party defendant, Immanuel Baptist Church (IBC). The trial court order granted IBC's combined motion to dismiss the complaint pursuant to section 2--615 and section 2--619 of the Code of Civil Procedure (Code) (735 ILCS 5/2--615, 2--619 (West 1994)). The court granted the section 2--615 motion on the issue of proximate cause. The court granted the section 2--619 motion on the issue of waiver of liability. On appeal, the Village contends that the trial court erred because (1) IBC's negligence was a proximate cause of plaintiffs' injuries; and (2) the waiver of liability did not bar the complaint.

On the night of October 24, 1992, plaintiffs, John Bradley Indlecoffer and Cindy Richter, were participating in a treasure hunt sponsored by IBC. During the treasure hunt, plaintiffs were injured when the motor vehicle in which they were riding as passengers collided with another motor vehicle at the intersection of Mill Creek Road and Route 173 in Lake County. On October 7, 1993, plaintiffs filed a complaint against the Village alleging, in pertinent part, that the Village negligently "failed to maintain the roadway in a reasonable manner by failing to remove branches which had for months obstructed the traffic stop sign located at the intersection to the extent that the driver of the vehicle in which Plaintiffs were riding did not view the stop sign until it was too late to stop the vehicle."

After answering plaintiffs' complaint, the Village filed a third- party complaint for contribution against IBC. The trial court dismissed the Village's complaint without prejudice, and the Village then filed an amended third-party complaint for contribution against IBC. The amended complaint, which refers to IBC both as "IBC" and as "the third party defendant," and to the Village as "Wadsworth," contained the following relevant allegations:

"3. That Immanuel Baptist Church sponsored a treasure hunt on October 24, 1992, wherein each participant was required to pay a $10.00 registration fee to the third-party defendant.

4. That at the time and place of the plaintiffs' injuries, plaintiffs were active participants in the 'IBC Treasure Hunt'. Further, that the driver of the vehicle in which plaintiffs were traveling at the time of the occurrence, David Plunkett, was also a participant in the IBC Treasure Hunt.

5. That immediately prior to the commencement of the IBC Treasure Hunt, certain organizers of the event surveyed, inspected and timed the routes on the circuit between the various clue sites.

6. That the third party defendant promulgated rules by which the treasure hunt was to be carried out. Further that the participating teams competed against one another and a winner was to be adjudged at the conclusion of the competition. The primary judging criteria for the contest was the speed at which a team could negotiate the course within the set time limitation.

7. That the contest was organized in such a manner that the teams of contestants moved through a circuit of clue locations in the same order and that an advantage could be gained by one team from following the vehicle of another team that had solved the riddle of the next clue site. Further, that plaintiff's [sic ] team and driver believed they were being followed by other teams in the competition on several occasions during the night of October 24, 1992.

8. That the IBC treasure hunt rules required that the participants engage in complex problem solving while operating a motor vehicle on unfamiliar roadways.

9. That plaintiff's [sic ] team of treasure hunt participants stopped at the clue location on north Mill Creed [sic ] Road immediately prior to the collision at Route 173 and Mill Creek Road. When plaintiff's [sic ] team believed it had solved the clue, several team members executed a prearranged signal and the plaintiff's [sic ] group rushed back to its vehicle hoping to avoid being followed by other teams who had not yet solved the clue to the next location for themselves.

10. That plaintiff's [sic ] team was forced to return to the Mill Creek Road clue site after going a short distance, when it was discovered that no one had retrieved the required 'clue sheet' from that location. Plaintiff's [sic ] vehicle then hurriedly left the site traveling southbound on Mill Creek Road.

11. That the vehicle in which plaintiffs were riding was driven at a speed well in excess of the speed limit as it approached the intersection of Route 173 and Mill Creek Road.

12. That southbound traffic on Mill Creek Road was regulated by a stop sign located on the northwest corner of the above intersection. Further that at the time of the collision, the stop sign was clearly visible for a distance of more than 300 feet north of the intersection.

13. That the intersection of Route 173 and Mill Creek Road was illuminated at the time of the collision by an overhead street light located on the southeast corner of the intersection.

14. That David Plunkett and the other contest participants in the plaintiff's [sic ] vehicle failed to identify the above stop sign until their vehicle was approximately 50 feet north of the intersection. Said vehicle was traveling at an excessive speed that would ...


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