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01/08/97 JOHN DOWNEY v. WOOD DALE PARK DISTRICT

January 8, 1997

JOHN DOWNEY, INDIV., AND AS FATHER AND NEXT FRIEND OF MATTHEW DOWNEY, A MINOR, PLAINTIFF,
v.
WOOD DALE PARK DISTRICT; NORTHEAST DU PAGE SPECIAL RECREATION ASSOCIATES, A/K/A NORTHEAST DU PAGE SPECIAL RECREATION ASSOCIATION; DENNIS B. WICKER, INDIV., AND AS AGENT FOR SINGLES PRINTING PLUS; SINGLES PRINTING PLUS, DEFENDANTS (MILAN DIKLICH, INDEPENDENT ADM'R ESTATE OF JOSEPH DIKLICH, PLAINTIFF-APPELLANT: WOOD DALE PARK DISTRICT, DEFENDANT-APPELLEE; NORTHEAST DU PAGE SPECIAL RECREATION ASSOCIATES, A/K/A NORTHEAST DU PAGE SPECIAL RECREATION ASSOCIATION, DENNIS B. WICKER, INDIV. AND AS AGENT FOR SINGLES PRINTING PLUS, SINGLES PRINTING PLUS, DEFENDANTS).



Appeal from the Circuit Court of Du Page County. Nos. 95--L--0080, 95--L--1382. Honorable Paul Noland, Judge, Presiding.

Released for Publication February 20, 1997.

The Honorable Justice McLAREN delivered the opinion of the court: Bowman and Rathje, JJ., concur.

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

The plaintiff, Milan Diklich, the independent administrator of the estate of Joseph Diklich, filed this action against the defendants, Wood Dale Park District (Park District) and Northeast Du Page Special Recreation Associates (NDSRA), also known as Northeast Du Page Special Recreation Association, and other defendants. The plaintiff's claim centered around the injuries and death suffered by Joseph Diklich after he had been hit by a vehicle after running into the street. This action was consolidated with an action brought by John Downey, individually and as father and next friend of Matthew Downey, arising out of the same accident. Matthew Downey, 12 years old at the time, allegedly was ordered to hold Joseph Diklich's hand before Joseph broke away and ran into the street. Pursuant to section 2--619.1 of our Code of Civil Procedure (735 ILCS 5/2--619.1 (West 1994)), the trial court dismissed the Diklich case against the Park District and NDSRA. Milan Diklich, as the independent administrator of the estate of Joseph Diklich, appeals that dismissal, naming the defendant Park District and defendant NDSRA in his notice of appeal. However, in his appellate brief, Diklich stated that he now waives his appeal as to NDSRA and only brings this appeal as to the defendant Park District. We note that we allowed the filing of an amici curiae brief in support of the defendant Park District by the Illinois Association of School Boards, the Board of Education of the City of Chicago, the Illinois Association of Park Districts, and the Illinois Governmental Association of Pools.

In his complaint, plaintiff Diklich alleged that, in the summer of 1994, Joseph Diklich was an autistic eight-year-old child enrolled in the Park District's summer program. The summer program offered activities to children in the community.

The complaint further alleged that, as a result of his autism, Joseph Diklich "was known to have difficulty with safety awareness and in following directions and was known to be difficult to control." Further, as an autistic child, Joseph "required specialized care, attention, supervision and direction from adults."

In order to accommodate Joseph's disability, the Park District assigned one-to-one supervision of Joseph while he participated in the summer program. The complaint alleges that the one-to-one supervision was to provide Joseph with the exclusive attention and supervision of an adult counselor of the Park District at all times.

On August 3, 1994, the Park District's planned activity included a trip to the Wood Dale Water Park. The complaint alleged that, in order to reach the pool, "the children involved in the program, including JOSEPH, were walked along Wood Dale Road." The complaint alleged that, at some point prior to the group proceeding along Wood Dale Road, a one-to-one counselor assigned to another child with special needs left her position with the group and proceeded to the pool in a vehicle. As a result, the complaint alleged that the one-to-one counselor assigned to Joseph took control of the other disabled child, leaving Joseph. The complaint further alleged that, while walking along Wood Dale Road, Joseph was "holding the hand of another child when he broke away and ran onto Wood Dale Road where he was struck and severely injured by a motor vehicle." Joseph later died from his injuries.

Count I of the Diklich complaint sought recovery against the Park District under the Wrongful Death Act (740 ILCS 180/1 et seq. (West 1994)). Count I alleged that the Park District "was uniquely aware of JOSEPH's disabilities, including but not limited to his inability to perceive danger, inability to follow directions and his propensity for unpredictable behavior." Further, count I alleged that the Park District owed Joseph a special duty which was breached when he was left without one-to-one adult supervision during the walk to the pool. Further, count I alleged that the Park District, through its employees, acted "willfully and wantonly and exhibited an utter indifference to or conscious disregard for JOSEPH's safety." Count II incorporated the allegations of count I and sought recovery under the Survival Act (755 ILCS 5/27--6 et seq. (West 1994)). Counts III and IV of the Diklich complaint were directed against NDSRA and, since plaintiff Diklich has waived his appeal with regard to NDSRA, are not at issue before this court. Counts V and VI of the Diklich complaint, directed against defendants Dennis Wicker, the alleged driver of the vehicle that struck Joseph, and his employer, Singles Printing Plus, remain pending in the trial court.

The defendant Park District filed a section 2--619.1 motion to dismiss (735 ILCS 5/2--619.1 (West 1994)) supported by affidavits. One of the affidavits was submitted by adult counselor, Fred Wilhoit. In this affidavit, Wilhoit stated that, within one minute before the accident, Joseph and his supervisor were side-by-side, two feet apart, walking on the sidewalk. The sidewalk was bordered on the west by a row of bushes, blocking access from the sidewalk to that direction. To the east of the sidewalk was a parkway, and to the east of the parkway was Wood Dale Road. The sidewalk, parkway, and Wood Dale Road were all owned by the County of Du Page.

The Park District's motion to dismiss was based upon sections 3--108 (745 ILCS 10/3--108 (West 1994)) and 2--201 (745 ILCS 10/2--201 (West 1994)) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1--101 et seq. (West 1994)) and the plaintiff's failure to state a cause of action under the "special duty" doctrine.

In response to the Park District's motion, the plaintiff Diklich did not submit a counteraffidavit and did not file a motion seeking additional time to gather facts in opposition to the motion to dismiss. Also, the plaintiff did not move for leave of court to file an amended complaint.

After a hearing, the trial court granted the Park District's motion to dismiss, made pursuant to section 2--619.1 (735 ILCS 5/2--619.1 (West 1994)), finding section 3--108(a) immunity (745 ILCS 10/3--108(a) (West 1994)) applicable and that no special duty existed. The trial court entered an order granting the Park District's section 2--619.1 motion on February 21, 1996. The plaintiff Diklich appeals.

Section 2--619.1, in pertinent part, provides that a combined motion may be brought for motions made under sections 2--615, 2--619, and 2--1005, so long as the movant specifies what each section of our Code of Civil Procedure relates to each "part" of the combined motion. 735 ILCS 5/2--619.1 (West 1994). In its motion to dismiss, the Park District specifies correctly that its section on section 3--108(a) immunity (745 ILCS 10/3--108(a) (West 1994)) is brought pursuant to section 2--619 (735 ILCS 5/2--619 (West 1994)).

The Park District also specifies, in its section 2--619.1 motion to dismiss (735 ILCS 5/2--619.1 (West 1994)), that its section on "special duty" also pertains to section 2--619 (735 ILCS 5/2--619 (West 1994)). This specification is correct in light of our supreme court's recent continued recognition of the "special duty" doctrine as an exception to the Tort Immunity Act. Doe v. Calumet City, 161 Ill. 2d 374, 389-90, 204 Ill. Dec. 274, 641 N.E.2d 498 (1994) ("plaintiffs can escape the statutory immunities granted municipalities and their employees *** by proving facts that show the existence of a special duty").

However, much confusion surrounds the continued viability of the special duty doctrine. Various justices of our supreme court, writing separately, have indicated their belief that the "special duty" doctrine is no longer constitutional. Calloway v. Kinkelaar, 168 Ill. 2d 312, 330, 339, 213 Ill. Dec. 675, 659 N.E.2d 1322 (1995) (Freeman, J., specially concurring); Leone v. City of Chicago, 156 Ill. 2d 33, 51, 188 Ill. Dec. 755, 619 N.E.2d 119 (Heiple, J., dissenting); Leone, 156 Ill. 2d at 47-48 (Bilandic, J., dissenting). Further, our supreme court recently reaffirmed the principle that duty and immunity are different concepts and each should be discussed and applied separately. Barnett v. Zion Park District, 171 Ill. 2d 378, 388, 216 Ill. Dec. 550, 665 N.E.2d 808 (1996). Because the existence of a duty is a required element of the cause of action for which Diklich seeks recovery (see Barnett, 171 Ill. 2d at 386) and because we are inclined to agree with those justices who argue for the recognition of the special duty doctrine as unconstitutional, we believe that the Park District's special duty section more properly should have been brought pursuant to section 2--615, which challenges the legal sufficiency of a complaint. See Calloway, 168 Ill. 2d at 331-32 (Freeman, J., specially concurring). Nevertheless, under the present state of the law, the Park District properly labelled its special duty section as pertaining to section 2--619. Doe, 161 Ill. 2d at 389-90. Should our supreme court reconsider its holding in Doe regarding the ...


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