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Fraser v. Universities Research Association Inc.

November 17, 1998

DONALD J. FRASER, PLAINTIFF-APPELLANT,
v.
UNIVERSITIES RESEARCH ASSOCIATION, INC., DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice Rathje

Appeal from the Circuit Court of Du Page County.

No. 97--L--43

Honorable Edward R. Duncan, Jr., Judge, Presiding.

Plaintiff, Donald J. Fraser, appeals from a trial court order that granted summary judgment in favor of defendant, Universities Research Association, Inc. Plaintiff's complaint alleged that defendant, a corporation that operates the property commonly known as Fermi National Accelerator Laboratory in Batavia, Illinois (the property or Fermilab), negligently allowed a defective condition to exist on a bicycle path on the property and that as a result of this condition plaintiff suffered injuries while riding his bicycle on the bicycle path. At issue is whether the Recreational Use of Land and Water Areas Act (Recreational Use Act) (745 ILCS 65/1 et seq. (West 1994)) applied and immunized defendant from liability or the Campground Licensing and Recreational Area Act (Recreational Area Act) (210 ILCS 95/1 et seq. (West 1994)) restricted the application of the Recreational Use Act and defendant therefore was not immunized from liability. We affirm.

The specific allegations in plaintiff's complaint included the following. On May 25, 1995 (the accident date), defendant occupied, maintained, possessed, and operated the property. On the accident date, defendant possessed and maintained bicycle paths on the property and made the paths available for use by the general public. Defendant knew or should have known that there was a series of depressions in the pavement of one of its bicycle paths. On the accident date, while riding his bicycle on the bicycle path with the depressions, plaintiff rode his bicycle through the depressions, which caused him to fall and suffer injuries.

The complaint alleged that defendant had a duty to exercise ordinary care to ensure that the property, including the bicycle paths, was safe for the use of those lawfully on the premises. The complaint also alleged that defendant breached this duty by allowing the depressions in the bicycle path, by failing to warn users about them, by failing to repair them, and/or by failing to inspect its premises and locate the depressions.

After the trial court denied its motion to dismiss the complaint, defendant filed a motion for summary judgment. The motion for summary judgment asserted that the Recreational Use Act applied and that defendant therefore did not owe a duty of care to plaintiff with respect to his use of the bicycle paths. Attached to the motion for summary judgment was the affidavit of David Gassman. The affidavit stated that Gassman was an attorney for defendant at Fermilab. The affidavit, referring to defendant as "URA," also stated:

"The primary purpose of the land and facilities that comprise Fermilab is the furtherance of the work performed under the auspices of [the] U.S. Department of Energy by the Fermi National Accelerator Laboratory. There are bicycle paths present upon the land that comprises Fermilab that are available for use by the general public. URA permits these bicycle paths to be used recreationally by members of the general public on a casual basis. The land is not open twenty-four hours a day for these purposes. No charge is made for the use of the bicycle paths."

Also attached to the motion for summary judgment was a transcript of testimony that plaintiff gave during a deposition. In his deposition, plaintiff testified that at the time of the accident he was on the Fermilab bicycle paths for recreational purposes and that he had no other reason for being on the paths at that time.

After a hearing on the matter, the trial court entered an order granting defendant's motion for summary judgment. In making its ruling, the trial court stated that the Recreational Use Act was applicable. Plaintiff's timely notice of appeal followed.

The principles that guide us in the review of a grant of summary judgment are well established. Our supreme court recently reiterated these principles as follows: "Summary judgment is proper 'where the pleadings, affidavits, depositions, admissions, and exhibits on file, when viewed in the light most favorable to the non-movant, reveal that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.' Busch v. Graphic Color Corp., 169 Ill. 2d 325, 333 (1996). Our review of an order granting summary judgment is de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992)." Zekman v. Direct American Marketers, Inc., 182 Ill. 2d 359, 374 (1998).

In this case, plaintiff contends that the trial court erred when it granted summary judgment in favor of defendant because there is a genuine issue of material fact. Plaintiff asserts that the Recreational Use Act applies only when the recreational use in question was "casual" and that there is a genuine issue of material fact whether his use of the bicycle path was "casual."

Plaintiff's position is plainly based on his contention that the Recreational Use Act applies only where the use of the property in question is "casual." In support of his contention, plaintiff asserts that there is a conflict between the Recreational Use Act and the Recreational Area Act (the Acts) that should be resolved by applying a "casual basis" test. We begin our analysis of that question by reviewing the relevant provisions of the Acts.

The Recreational Use Act provides that its purpose is "to encourage owners of land to make land and water areas available to the public for recreational or conservation purposes by limiting their liability toward persons entering thereon for such purposes." 745 ILCS 65/1 (West 1994). To accomplish this purpose, the Recreational Use Act grants a landowner who makes his land available to the public for recreational purposes certain immunities from liability as long as the landowner does not willfully and wantonly fail "to guard or warn against a dangerous condition, use, structure, or activity," or, with ...


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