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02/26/97 MARY JANE JOST v. DOUGLAS G. BAILEY SHARON

February 26, 1997

MARY JANE JOST, ADM'R OF THE ESTATE OF SUSAN SCHULTZ, DECEASED, AND W.A. JOST, FATHER AND SURVIVING HEIR OF SUSAN SCHULTZ, DECEASED, PLAINTIFFS-APPELLANTS,
v.
DOUGLAS G. BAILEY; SHARON CRANSTON; STEVEN O. PFOSER; RICHARD A. SHEEHAN, D/B/A FATMAN INN; NORTHEASTERN ILLINOIS ASSOCIATION OF SNOWMOBILE CLUBS, DEFENDANTS (THE COUNTY OF LAKE AND LAKE COUNTY FOREST PRESERVE DISTRICT, DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Lake County. No. 95--L--1612. Honorable Stephen E. Walter, Judge, Presiding.

Rehearing Denied March 28, 1997. Released for Publication March 28, 1997.

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

The opinion of the court was delivered by: Geiger

PRESIDING JUSTICE GEIGER delivered the opinion of the court:

The plaintiffs, Mary Jane Jost, as administrator of the estate of Susan Schultz, deceased, and W.A. Jost, as father and surviving heir of the deceased, appeal from the judgment of the circuit court of Lake County dismissing their wrongful death and survival actions against the defendants, the County of Lake, Illinois (the County) and the Lake County Forest Preserve District (the Forest Preserve). The plaintiffs' second amended complaint alleged that the County and the Forest Preserve were negligent and wilful and wanton in their approval of a dangerous and unsafe snowmobile trail. On April 23, 1996, the trial court dismissed the action on the basis that the County and the Forest Preserve were immunized by section 5--1(N) of the Snowmobile Registration and Safety Act (the Snowmobile Act) (625 ILCS 40/5--1(N) (West 1994)) and section 3--109 of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (745 ILCS 10/3--109 (West 1994)). We affirm and remand the cause.

Prior to a discussion of the facts of this case, we note that the County has filed a motion to strike certain portions of the plaintiffs' brief pursuant to Supreme Court Rules 361 (155 Ill. 2d R. 361) and 341(e)(6) (155 Ill. 2d R. 341(e)(6)). The County argues that the plaintiffs' statement of facts contains references to allegations that were not considered by the trial court in ruling on the motions to dismiss the second amended complaint. Contrary to the County's assertions, however, our review of the plaintiffs' brief reveals that all of the allegations contained in the statement of facts were also alleged in the second amended complaint. Therefore, the County's motion to strike is denied.

The plaintiffs' second amended complaint contains the following allegations: On January 22, 1995, the plaintiffs' decedent was riding as a passenger on a snowmobile operated by Stephen Pfoser. At approximately 10 p.m., the decedent and Pfoser were crossing over the Des Plaines River on the Russell Road bridge in Newport Township, Lake County. This particular bridge is owned and maintained by the County. Pfoser was operating his snowmobile in a westerly direction along the south shoulder of the bridge, traveling against the oncoming motor vehicle traffic.

As Pfoser and the decedent crossed the bridge, their snowmobile was struck by an eastbound motor vehicle being operated by Douglas Bailey and owned by Sharon Cranston. Prior to the collision, Bailey had consumed alcoholic beverages at the "Fatman Inn," which is a dramshop owned and operated by Richard Sheehan. The collision occurred when Bailey drove his vehicle out of the eastbound lane and onto the paved shoulder located on the south side of the bridge. The decedent died as a result of the injuries she suffered during the collision.

At the time of the accident, Pfoser was following a snowmobile trail that had been marked by the Northeastern Illinois Association of Snowmobile Clubs (NIASC) and approved by the County and the Forest Preserve. NIASC marked the trail by placing signs and directional indicators on the Forest Preserve property adjacent to the bridge. These signs and markings directed westbound snowmobiles to cross the bridge on the wrong side of the road, against oncoming traffic. Such a route is expressly prohibited under the safety provisions of the Snowmobile Act. See 625 ILCS 40/5--2(B) (West 1994).

On February 24, 1995, the plaintiffs filed a nine-count wrongful death and survival action, naming Bailey, Cranston, Pfoser, and Sheehan as defendants. On March 2, 1995, the plaintiffs filed an amended complaint which added the County and NIASC as defendants. On December 19, 1995, the plaintiffs filed a second amended complaint which added the Forest Preserve as a defendant.

The only counts at issue on appeal are those directed against the County and the Forest Preserve. These counts allege negligence and wilful and wanton misconduct on the part of the County and the Forest Preserve in approving the NIASC trail. The plaintiffs contend that the defendants knew or should have known that directing snowmobiles to travel against motor vehicle traffic would result in serious bodily harm or death. The plaintiffs also allege that the defendants breached their duty of care to the plaintiffs by permitting the NIASC trail to exist on their property for two years, even though the trail route was in violation of the safety provisions of the Snowmobile Act (625 ILCS 40/5--2(B) (West 1994)).

On January 25, 1996, and February 26, 1996, respectively, the County and the Forest Preserve filed motions to dismiss the second amended complaint pursuant to sections 2--615 and 2--619 of the Code of Civil Procedure (735 ILCS 5/2--615, 2--619 (West 1994)). In their motions, the defendants argued, inter alia: (1) that, pursuant to section 5--1(N) of the Snowmobile Act, they owed no duty to keep their property safe for snowmobiles; (2) that, pursuant to section 3--109(a) of the Tort Immunity Act, they owed no duty to individuals participating in an ultrahazardous activity; (3) that, pursuant to section 2--103 of the Tort Immunity Act (745 ILCS 10/2--103 (West 1994), they could not be held liable for the approval of the trail; (4) that their conduct was not the proximate cause of the decedent's injuries and death; and (5) that the plaintiffs did not allege facts sufficient to support an action for wilful and wanton misconduct.

In response to the motions, the plaintiffs argued: (1) that once the County and the Forest Preserve voluntarily undertook to approve the trail, they assumed the duty to act with reasonable care; (2) that the immunities provided under the Tort Immunity Act do not apply in instances where the governmental entity created the hazard that caused the injury; (3) that snowmobiling could not be considered an "ultrahazardous activity"; (4) that the immunity provisions of the Snowmobile Act are unconstitutional; and (4) that, pursuant to section 9--103 of the Tort Immunity Act (745 ILCS 10/9--103 (West 1994), the Forest Preserve had waived all immunities by requiring NIASC to procure an insurance liability policy which named it as an additional insured.

On April 23, 1996, following a hearing on the motions, the trial court entered the following findings:

"a. Plaintiffs *** have failed to sufficiently allege facts to support their claim of a duty owed them by the County, [or] the Forest Preserve, *** whether ...


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