Appeal from the Circuit Court of Cook County. Honorable Patrick E. McGann, Judge Presiding.
Presiding Justice McNULTY delivered the opinion of the court. Rakowski and Tully, JJ., concur.
The opinion of the court was delivered by: Mcnulty
PRESIDING JUSTICE McNULTY delivered the opinion of the court:
In this case the court once again confronts the issue of the distinction between negligence and willful and wanton misconduct. We agree with the trial court that the evidence here cannot support a finding of willful and wanton misconduct.
On April 19, 1991, Nancy Burlingame tripped and fell while walking on a broken sidewalk that the Chicago Park District owned. Nancy and her husband, Robert Burlingame, sued the park district for willful and wanton misconduct which caused Nancy's injuries and Robert's loss of consortium.
In response to defendant's motion for summary judgment, plaintiffs presented the affidavit of Lynell Price, who swore that in 1985 she tripped on a different break in the sidewalk, about 300 feet from the break on which Nancy tripped. Earsie Agnew swore that in 1986 she injured herself in a fall caused by yet another crack, hundreds of feet away from the sites of both Nancy's and Price's falls. In 1989 Norma Turrill fell on a break about 75 feet from the spot of Nancy's fall. Defendant learned of Price's and Agnew's falls at latest when they sued defendant; plaintiffs presented a letter from 1989 that informed defendant of Turrill's injury. Plaintiffs found no other person who tripped on the same break that caused Nancy's fall.
Plaintiffs alleged that more than 1 million people use this stretch of sidewalk each year. An architect who examined the sidewalk found about a three-inch change in the height of the walking surface from the bottom of the break to the sidewalk. He considered the sidewalk's condition unreasonably dangerous.
The trial court held that defendant's failure to repair the entire stretch of sidewalk in light of the prior complaints might constitute negligence, but it did not rise to the level of willful and wanton misconduct. Plaintiffs appeal from the trial court's decision to grant defendant summary judgment. The sole issue on appeal is whether evidence that defendant failed to repair all significant cracks in that stretch of the sidewalk, after three people notified defendant they tripped on other cracks in that stretch, could support a finding of willful and wanton misconduct.
Under the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (Ill. Rev. Stat. 1991, ch. 85, par. 1-101 et seq.), the park district is not liable for injuries due to conditions on its property used for recreation unless it is guilty of "willful and wanton conduct." Ill. Rev. Stat. 1991, ch. 85, par. 3-106. The Act defines willful and wanton conduct as:
"a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property." Ill. Rev. Stat. 1991, ch. 85, par. 1-210.
Our supreme court has explained:
"The label 'willful and wanton conduct' has developed in this State as a hybrid between acts considered negligent and behavior found to be intentionally tortious. This hybrid character of willful and wantonness is reflected in case law decisions of this State, which have recognized that willful and wanton acts share many similar characteristics with acts of ordinary negligence. *** In view of the fact that it is a matter of degree, a hard and thin line definition should not be attempted[.] [Citation.] Under the facts of one case, willful and wanton misconduct may be only degrees more than ordinary negligence, while under the facts of another case, willful and wanton acts may be only degrees less than intentional wrongdoing." Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 275-76, 641 N.E.2d 402, 204 Ill. Dec. 178 (1994).
Thus, for plaintiffs to recover here, they must present evidence that could support a finding that defendant's failure to repair the sidewalk constitutes misconduct some degrees more culpable than ordinary negligence.
When a plaintiff charges a landowner with ordinary negligence in permitting unreasonably dangerous conditions on the land, the court must balance the likelihood of injury and the gravity of the threatened injury against the burden of guarding against the injury and the consequences of placing that burden on the defendant. Ward v. Community Unit School District No. 220, 243 Ill. App. 3d 968, 973, 614 N.E.2d 102, 184 Ill. Dec. 901 (1993); Resag v. Washington National Insurance Co., 90 Ill. App. 3d 971, 414 N.E.2d 107, 46 Ill. Dec. 385 (1980). Our General Assembly has explicitly required this kind of balancing for charges of negligent failure to maintain ...