Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

02/24/98 FRANK DINELLI AND CAROL DINELLI v. COUNTY

FRANK DINELLI AND CAROL DINELLI, PLAINTIFFS-APPELLANTS,
v.
COUNTY OF LAKE, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Presiding Justice Geiger delivered the opinion of the court:

The plaintiffs, Frank Dinelli and Carol Dinelli, appeal from the February 19, 1997, order of the circuit court of Lake County dismissing their complaint against the defendant, County of Lake (the County). The complaint alleged that the County was negligent and willful and wanton in its design and maintenance of a midblock bicycle trail crosswalk. Plaintiff Frank Dinelli was struck and injured by a motor vehicle while walking his bicycle across the crosswalk. The trial court found that the crosswalk had been intended for recreational use and therefore concluded that the County was immune from liability pursuant to section 3--106 of the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/3--106 (West 1996)). The trial court also found that the plaintiffs' allegations were insufficient to state a cause of action for willful and wanton conduct. We affirm.

In their second amended complaint, the plaintiffs allege that, on September 23, 1994, Frank Dinelli was riding his bicycle in an easterly direction along the North Shore Bicycle Path (NSBP) in Libertyville. The NSBP is a system of interconnected bicycle pathways in Lake County which utilizes abandoned railroad right-of-ways. In 1994, the NSBP included a midblock crosswalk across Butterfield Road, approximately 240 feet south of the intersection of Butterfield Road and Illinois Route 176. This crosswalk was allegedly designed and maintained by the County. Street signs at the crosswalk warn motorists on Butterfield Road where the NSBP crosses the road.

As the plaintiff attempted to ride his bicycle across the crosswalk, he was struck by a northbound vehicle being driven by Louise Rejc. According to witness Albert Stannard, at the time that the plaintiff attempted to cross the crosswalk, northbound traffic on Butterfield Road was stopped for a red light at the intersection of Illinois Route 176 and was backed up to a point south of the crosswalk. Stannard testified that the plaintiff entered the crosswalk and proceeded to cross Butterfield Road while the northbound traffic remained stopped. As the plaintiff was crossing the southbound lane, he was struck by Rejc's vehicle. Rejc was allegedly traveling northbound in the southbound lane in order to more quickly reach the left-turn lane at the intersection with Illinois Route 176. As a result of the collision, the plaintiff suffered a broken hip, a broken pelvis, three fractured ribs, and other internal injuries requiring hospitalization for over six weeks.

Counts I and II of the plaintiffs' second amended complaint alleged that the County was negligent in its design and maintenance of the NSBP's midblock crosswalk on Butterfield Road. In counts III and IV, the plaintiffs alleged that the County's conduct in designing and maintaining the crosswalk had been willful and wanton. Specifically, the plaintiffs alleged that the County (1) failed to use traffic and pedestrian counts in deciding where to place the crosswalk; (2) located the crosswalk in a high volume area; (3) installed the crosswalk without the recommendation of the county engineer; and (4) failed to design or plan the crosswalk in accordance with guidelines set forth in the Manual of Uniform Traffic Controls. In counts I and III, Frank Dinelli sought relief for his personal injuries; in counts II and IV, Carol Dinelli sought relief for the loss of her husband's services, society, companionship, and conjugal relationship.

On July 17, 1996, the County filed a motion for summary Judgement as to counts I and II of the plaintiffs' second amended complaint. In its motion, the County asserted that the crosswalk was part of the NSBP and intended for recreational use. As such, the County argued that it was immune from liability pursuant to section 3--106 of the Act (745 ILCS 10/3--106 (West 1996)). Attached to the motion was the affidavit of Martin Buehler, the county engineer for Lake County. In his affidavit, Buehler stated that the NSBP included the crosswalk across Butterfield Road. Buehler also averred that the NSBP, including the crosswalk, was intended and permitted to be used by the citizens of Lake County for recreational purposes.

On September 18, 1996, the trial court denied the County's motion for summary judgment. On September 26, 1996, the County filed a motion requesting the trial court to reconsider its ruling. The County also filed a motion to dismiss counts III and IV of the second amended complaint on the ground that the allegations were insufficient to support an action for willful and wanton conduct. On October 23, 1996, the trial court granted the motion to reconsider and entered summary judgment on behalf of the County as to counts I and II. On the same date, the trial court also granted the County's motion to dismiss counts III and IV. In granting the motion to dismiss, the trial court gave the plaintiffs leave to file an amended complaint.

On January 9, 1997, the trial court granted the plaintiffs leave to file a fourth amended complaint. Counts I and II contained the same negligence allegations that were the basis of the earlier motion for summary judgment. Counts III and IV again alleged willful and wanton conduct and contained the following additional allegations: (1) that the County encouraged pedestrians to use the midblock crosswalk without the use of active traffic control devices on a roadway where the average daily traffic volume exceeded 20,000; (2) that the County failed to exclusively utilize the pedestrian crosswalks with active traffic control devices at the intersection of Butterfield Road and Illinois Route 176; and (3) that the County failed to remove the crosswalk after becoming aware of another incident in which a user of the crosswalk was struck by a motorist on Butterfield Road.

On January 22, 1997, the County filed a motion to dismiss the fourth amended complaint. The County argued that counts I and II had already been ruled upon and were barred under the doctrine of res judicata. As to counts III and IV, the County again argued that the allegations were insufficient to demonstrate willful and wanton conduct.

On February 19, 1997, following a hearing, the trial court dismissed the plaintiffs' fourth amended complaint. Following the plaintiffs' election to stand upon their fourth amended complaint, they filed a timely notice of appeal.

The plaintiffs' first contention on appeal is that the trial court erred in entering summary Judgement on behalf of the County as to counts I and II. The plaintiffs argue that the County was not immunized under section 3--106 of the Act as the crosswalk was not intended to be used "recreationally." Rather, the plaintiffs argue that the crosswalk was intended as a traffic control device for the protection of pedestrians crossing Butterfield Road. As such, the plaintiffs conclude that the County owed them a duty of ordinary care in designing and maintaining the crosswalk.

Summary Judgement is proper if "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a Judgement as a matter of law." 735 ILCS 5/2-- 1005(c) (West 1996). An order granting summary Judgement should be reversed if the evidence shows that a genuine issue of material fact exists or if the Judgement was incorrect as a matter of law. In re Estate of Herwig, 237 Ill. App. 3d 737, 741 (1992). The Disposition of a summary Judgement motion is not discretionary, and the standard of review is de novo. Quinton v. Kuffer, 221 Ill. App. 3d 466, 471 (1991).

Section 3--106 of the Act provides as follows:

"Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury." 745 ILCS 10/3--106 (West 1996).

Pursuant to this language, Illinois courts have held that municipalities are immune from liability for injuries occurring on public property that is intended or permitted to be used for recreational purposes, regardless of the primary purpose of the property. See Bubb v. Springfield School District 186, 167 Ill. 2d 372, 380-81 (1995). The applicability of section 3--106 is not solely dependent on whether the plaintiff was actively engaged in recreational activity at the time of the injury. Annen v. Village of McNabb, 192 Ill. App. 3d 711, 713 (1990). Moreover, section 3--106 may apply to injuries occurring upon nonrecreational facilities or structures that "increase the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.