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11/19/97 LINDA KOLTES v. ST. CHARLES PARK DISTRICT

November 19, 1997

LINDA KOLTES, PLAINTIFF-APPELLANT,
v.
ST. CHARLES PARK DISTRICT, DEFENDANT-APPELLEE (GEORGE WOLK, DEFENDANT).



Appeal from the Circuit Court Kane County. No. 94--MR--0133. Honorable Timothy Q. Sheldon, Judge, Presiding.

Released for Publication December 18, 1997.

Presiding Justice Geiger delivered the opinion of the court. Bowman and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Geiger

PRESIDING JUSTICE GEIGER delivered the opinion of the court:

The plaintiff, Linda Koltes, appeals from the December 9, 1996, order of the circuit court of Kane County granting summary judgment in favor of defendant St. Charles Park District. The plaintiff had filed suit against the defendant, alleging that she was injured as a result of the design and maintenance of the defendant's golf course. The trial court entered summary judgment on behalf of the defendant, ruling that it was immune from liability pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/1--101 et seq. (West 1996)). On appeal, the plaintiff argues that the defendant is not immunized under the Act as its conduct herein was a ministerial function and was performed in a willful and wanton manner. We affirm.

On March 30, 1994, the Plaintiff filed her complaint in the circuit court of Kane County. As subsequently amended, the complaint alleged that, on July 16, 1993, the plaintiff was struck by an errant golf ball hit by George Wolk, a member of her foursome. The complaint alleged that, at the time of the accident, she was standing in a designated "standing area" near the first tee at the St. Charles Park District Pottawatomie Golf Course. This "standing area" consisted of a rock formation, a trash can, and a spike cleaner. The plaintiff alleges that the "standing area" was located 75 yards in front of and to the left of the men's first tee.

The Plaintiff alleged that the design of the first tee of the golf course "lured" people to wait in the "standing area," even though this area was within the possible flight zone for golf balls struck from the first tee. The complaint alleged that the defendant's conduct was willful and wanton in that it (1) failed to warn the plaintiff that the designated "standing area" was unprotected from golf balls struck from the first tee; (2) failed to provide fencing in the "standing area"; and (3) failed to alter the design of the first tee, even though it knew that a golf ball had previously struck an individual waiting in the "standing area."

On December 8, 1994, the defendant filed its answer to the plaintiff's complaint, denying all material allegations. The defendant also denied that there was a designated "standing area" by the first tee.

On October 31, 1996, the defendant filed a motion for summary judgment. In its motion, the defendant contended that (1) the plaintiff's claim was barred by the 10-year construction statute of repose (735 ILCS 5/13--214 (West 1996)); (2) the decision to make improvements to the golf course was discretionary under the Act; and (3) its alleged misconduct was not willful and wanton. The defendant also argued that there had been no other reported cases of injury due to errant golf balls in the area where the plaintiff was injured. In support of its motion, the defendant provided transcripts of the deposition testimony of the plaintiff and golf professional Jim Wheeler.

In her deposition, the plaintiff testified that, prior to her injury, she walked to the "standing area" as she awaited her turn to tee off. The "standing area," which was about 10 to 15 yards from the women's tee, did not have any chairs or wooden benches. Although she understood that she was to stand behind and out of the way of players who are teeing off, she waited in the "standing area" while the other members of her foursome were teeing off because she felt that the area was safe.

Wheeler testified that he had been the head golf professional at the Pottawatomie Golf Course for 15 years. According to Wheeler, the golf course was constructed during the 1930s. He testified that the area where the plaintiff was injured was not an area for spectators. He had not received any complaints about the area in question. Furthermore, the area in question was not subject to more injuries than the other areas of the golf course. However, Wheeler was aware that, prior to this incident, one other person had been struck by an errant golf ball in the same general area of the golf course. He testified that this person was not injured.

In response to the defendant's motion, the plaintiff argued that (1) the statute of repose was inapplicable as it applied only to cases involving negligent design and not to cases involving willful and wanton conduct; (2) the defendant was not immune from liability under the Act as the maintenance of the golf course was a ministerial function and not discretionary; and (3) a genuine issue of material fact existed as to whether the defendant's conduct was willful and wanton.

In support of her argument, the plaintiff relied upon the affidavit of R. Gordon Leedy, the director of design at Thompson Dyke & Associates, a firm which deals primarily with municipal and park planning. Leedy had been a site coordinator with Nicklaus Design for four years. Leedy opined that the area where the plaintiff was injured was a "potential flight zone." Furthermore, he stated that the defendant maintained the area in a manner which gave the false impression that the area was protected from errant tee shots. During his deposition, however, Leedy acknowledged that the area was not explicitly designated as a "standing area" for spectators. He also testified that there were no published standards for the design and construction of golf courses in the 1930s.

On December 9, 1996, following oral argument, the trial court granted summary judgment in favor of the defendant. The trial ...


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