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02/28/97 MAHMOUD MOSTAFA v. CITY HICKORY HILLS

February 28, 1997

MAHMOUD MOSTAFA, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF ADEL MOSTAFA, DECEASED, AND MAHMOUD MOSTAFA, HIS FATHER, FATIMAELZAHRAA MOSTAFA, HIS MOTHER, AND AHMEDAMRO MOSTAFA, GAMALELDIN MOSTAFA, AND MOHAMMEDALI MOSTAFA, HIS BROTHERS, PLAINTIFFS-APPELLANTS,
v.
CITY OF HICKORY HILLS, HICKORY HILLS PARK DISTRICT, AMERICAN NATIONAL BANK AND TRUST COMPANY, TRUST NO. 114112-04, DATED JULY 30, 1991, AND ASGHAR MOHSIN, BENEFICIARY OF SAID TRUST, DEFENDANTS-APPELLEES. NAIMAH SALAMAH, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF AMGAD SALAMAH, DECEASED, PLAINTIFF-APPELLANT, V. CITY OF HICKORY HILLS AND HICKORY HILLS PARK DISTRICT, AMERICAN NATIONAL BANK AND TRUST COMPANY, TRUST NO. 114112-04, DATED JULY 30, 1991, AND ASGHAR MOHSIN, BENEFICIARY OF SAID TRUST, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Jennifer Duncan-Brice, Judge Presiding.

Released for Publication April 24, 1997.

Presiding Justice Hartman delivered the opinion of the court. Hoffman and Hourihane, JJ., concur.

The opinion of the court was delivered by: Hartman

PRESIDING JUSTICE HARTMAN delivered the opinion of the court:

Plaintiffs' decedents, Adel Mostafa, age two, and Amgad Salamah, age three, fell into a man-made lagoon in a public park near a playground and drowned. Plaintiffs filed suit against the City of Hickory Hills (City), the Hickory Hills Park District (Park District), American National Bank and Trust Company (American National Bank), which held title to their apartment building in trust, and Asghar Mohsin, the beneficiary of that trust. The circuit court granted defendants' section 2-619(a)(9) (735 ILCS 5/2-619(a)(9) (West 1994)) (section 2-619(a)(9)) motions to dismiss. On appeal, plaintiffs argue that the City and the Park District each owed a duty under both the common law and the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-101.1 et seq. (West 1992)) to prevent or warn against the risk of young children falling into the lagoon, and their failure to do so was negligent as well as willful and wanton. Plaintiff Mahmoud Mostafa further argues that American National Bank and Mohsin owed a duty to install locks to prevent children from leaving the apartment building, and to protect children from the risk of danger posed by the lagoon in the neighboring park.

The two causes of action in this consolidated case arise from the same incident. Plaintiffs' decedents lived with their families in the same apartment building in a complex located in Hickory Hills. Situated directly across the street from that apartment complex was publicly accessible Martin Park, which contained a small playground. A sign in the playground stated "PLAYGROUND NOT SUPERVISED RECOMMENDED AGES 5-12." The man-made lagoon, assertedly filled with murky water, was located forty-five feet away from the playground.

On November 9, 1993, the two boys left their apartments, allegedly without the knowledge of their families, crossed the street, entered Martin Park, played in the playground until they allegedly spotted a flock of wild geese drinking water at the edge of the lagoon, ran toward the geese, began to chase them, and slipped into the lagoon and drowned.

The families of Amgad and Adel filed separate complaints. Adel's father, Mahmoud Mostafa, filed a nine-count wrongful death action against the City, the Park District, the Harris Trust & Savings Bank (Harris Bank), which then held title to the apartment complex in trust, and Asghar Mohsin, the beneficiary of that trust. The first three counts stated claims against the City and the Park District, alleging both common law negligence and a violation of section 3-102(a) of the Tort Immunity Act, 745 ILCS 10/3-102(a) (West 1994) (Section 3-102(a)). Mostafa alleged that defendants breached their duty to prevent children from drowning in the lagoon. Counts four, five and six stated a claim against Harris Bank for failing to repair a lock in plaintiff's apartment building, which would have prevented the boys from exiting the building. Counts seven, eight and nine alleged that the City and the Park District acted willfully and wantonly in constructing a lagoon so close to a children's playground.

Amgad's mother, Naimah Salamah, also filed a three-count wrongful death complaint against the City and the Park District, alleging both negligent and willful and wanton conduct. Salamah amended her complaint to include allegations against Harris Bank and Mohsin that were identical to allegations in Mostafa's complaint, but later voluntarily dismissed the two parties.

The two claims were consolidated. After the property apparently was transferred to a new trust and trustee, Mostafa amended his complaint to state a claim against American National Bank instead of Harris Bank.

In February 1995, the Park District moved under section 2-619 to dismiss both complaints, asserting that it owed no duty to protect the young boys from the apparent danger of the lagoon, erect a fence around the lagoon, or erect a sign stating the depth of the water. In addition, the Park District raised as defenses sections 2-109, 2-201, 3-103, and 3-108(a) of the Tort Immunity Act, arguing that these provisions immunized it from being held liable even if the court found it owed a duty. 745 ILCS 10/2-109, 2-201, 3-103, 3-108(a) (West 1994).

The Park District submitted the affidavit of its executive director, Cynthia Neal, in support of the motion, who swore that the Park District owned and controlled Martin Park, no one before had drowned in the lagoon since it was built in 1979-80, and signs on the property warned against allowing children to play unsupervised. An exhibit attached to the affidavit included a drawing of Martin Park, which contained a football field, two softball fields, a playground, and the lagoon.

Salamah countered that the Park District had a common law duty to remedy the unreasonably dangerous condition it created when it built the lagoon, and disputed the assertion that section 3-103(a) of the Tort Immunity Act immunized defendant from liability. She contended that the statute imposed liability on Park District for creating a dangerous condition.

Mostafa's response raised identical arguments relating to the Park District's duty to repair the dangerous condition. In addition, Mostafa emphasized the young age of decedents and their inability to appreciate the dangerous nature of the lagoon. Mostafa claimed the conduct was willful and wanton and that, because the Park District failed to allege it had no liability insurance, it could not seek immunity based on its lack of insurance.

Defendant Mohsin also moved to dismiss Mostafa's claim against him, arguing that he had no duty to protect plaintiffs' decedents from dangers existing on neighboring property, or to protect a child from the obvious dangers of water. He further claimed he had no duty to install locks that would prevent people from leaving apartment buildings.

The circuit court granted the Park District's motion to dismiss, finding that Illinois law did not impose a duty on the Park District because the dangerous nature of the lagoon was open and obvious to the children. The court granted plaintiffs leave to file amended complaints, which they did. Plaintiffs' separate second amended complaints contained substantially similar allegations. The Park District and Mohsin again successfully moved to dismiss the two complaints. The City also successfully moved to dismiss both complaints on the basis that it did not own, possess, maintain, or control Martin Park.

A section 2-619 motion to dismiss admits all well-pleaded facts in a complaint, but does not admit conclusions of law or conclusions of fact unsupported by specific allegations. The motion should be granted if, construing all documents submitted in support of the motion in the light most favorable to the nonmoving party, there exist no disputed issues of fact. 735 ILCS 5/2-619 (West 1994); Jackson v. Moreno, 278 Ill. App. 3d 503, 663 N.E.2d 27, 215 Ill. Dec. 277 (1996). Appellate review of a dismissal pursuant to section 2-619 is de novo. Lawson v. City of Chicago, 278 Ill. App. 3d 628, 634, 662 N.E.2d 1377, 215 Ill. Dec. 237 (1996); Jackson, 278 Ill. App. 3d at 506.

I

The parties first dispute whether plaintiffs stated a cause of action for negligence against the Park District. A negligence claim must consist of facts demonstrating that defendant owed plaintiff a duty, which defendant breached, and plaintiff suffered injuries or damages proximately caused by the breach. Rowe v. State Bank of Lombard, 125 Ill. 2d 203, 215, 531 N.E.2d 1358, 126 Ill. Dec. 519 (1988); Pelham v. Griesheimer, 92 Ill. 2d 13, 18, 440 N.E.2d 96, 64 Ill. Dec. 544 (1982). The existence of duty is a question of law that must be decided by the court. Sisk v. Williamson County, ...


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