The opinion of the court was delivered by: Presiding Justice Garman
IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT
Appeal from Circuit Court of Macon County Case No. 93L207
Honorable John Greanias, Judge Presiding.
Plaintiffs Matthew Johnson (Matt) and his parents, Robert Johnson and Cheryl Johnson, sued defendants Decatur Park District (Park District), Young Women's Christian Association of Decatur (YWCA), and Ken Park (Park), coach of the Decatur Power Tumblers (Power Tumblers), for injuries then 17-year-old Matt sustained when, in attempting a front flip, he jumped off a mini trampoline, fell on his head and shoulders, and broke his neck. The circuit court of Macon County granted summary judgment to all defendants. We now affirm as to the Park District and Ken Park and reverse and remand as to the YWCA.
Matt's injury occurred on the evening of January 20, 1993. As to the Park District, plaintiffs alleged in their complaint that (1) the Park District owned the mini trampoline and the Power Tumblers group was using the facilities of the YWCA, including mats owned by the YWCA; (2) the Power Tumblers group was under the direct control and supervision of Park, who was the program's coach and the Park District's agent and employee; (3) the Power Tumblers was a hazardous and dangerous recreational activity that created a substantial risk of injury; (4) Matt was not aware of the hazards and dangers associated with the use of mats and mini trampolines without a harness, safety belt, proper setup, and/or spotters; and (5) the Park District was aware of those dangers through Park and through past similar injuries and acted wilfully and wantonly in failing to (a) provide a safety harness or belt, (b) warn of the dangers associated with using the mini trampoline and mats, (c) provide adequate spotters, (d) warn and instruct participants concerning the dangers associated with using a mini trampoline and mats, and of the known serious risk of severe spinal cord injury, (e) properly position the mats to prevent gaps, and (f) provide a safe coach.
Plaintiffs also alleged negligence and wilful and wanton conduct on the part of Park and stated that (1) Matt was a participant and invitee of the Power Tumblers; (2) Park was an employee of the YWCA and the Park District; (3) Matt was not aware of the risks of spinal cord injury associated with the use of mini trampolines and Park, as coach, knew, or should have known, of these dangers and was negligent in allowing Matt to use the equipment without (a) providing a safety harness or safety belt, (b) properly warning of the dangers, (c) providing adequate spotters, and (d) properly positioning the mats and mini trampoline to prevent gaps.
Plaintiffs also alleged negligence against the YWCA. One count alleged an agency relationship between Park and the YWCA and relied on the doctrine of respondeat superior. Another count purported to state a cause of action against the YWCA on the basis of its direct negligence. However, examination of this count reveals that it largely repeats the allegations of vicarious liability stated elsewhere in the complaint.
In August and September 1997, all defendants filed motions for summary judgment. In its motion, the Park District alleged that (1) the danger of falling from a height is open and obvious and therefore no duty arose to warn Matt of this danger; (2) it is entitled to immunity under sections 2-109, 2-201 and 3-108 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/2-109, 2-201, 2-108 (West 1992)) because all the conduct of which plaintiffs complain is supervisory or discretionary in nature; and (3) it is entitled to immunity under section 2-105 of the Act (745 ILCS 10/2-105 (West 1992)) because it had no duty to inspect property it did not own. In its motion for summary judgment, the YWCA alleged that it had no duty to warn of an open and obvious danger. In a supplemental motion for summary judgment, it alleged that it is a local public entity under section 1-206 of the Act (745 ILCS 10/1-206 (West 1992)) and, as such, is immune from liability for alleged negligence.
Park's motion for summary judgment adopted the grounds of immunity alleged by the Park District in its motion. He alleged that (1) he owed no duty to warn against the obvious dangers of falling from a height; (2) as a public employee, he is immune from liability for his exercise of discretion in determining the activities to be performed or the equipment to be used by the Power Tumblers; and (3) he is not liable for a failure to inspect any property other than that owned by the Park District.
The motions relied on various discovery depositions. In his deposition, Matt testified that at the time of the accident he was a senior in high school and was a member of the YWCA. In 1992, prior to participating in any tumbling or gymnastics programs at the YWCA, he read and signed a document entitled "WAIVER AND RELEASE OF ALL CLAIMS." His mother also signed it. In August or October 1992, Matt and a friend got together with Park to discuss starting a Mt. Zion tumbling group. Before he started classes at the YWCA, he had not used a mini trampoline. At the time of the accident, he was able to perform successfully a cartwheel, back handspring, round-off back flip, front flip, and back flip. In doing a front flip, one would run toward the mini trampoline, spring off of it, go into the air, tuck and rotate forward, and land on the feet. Prior to the day of the accident, Matt had successfully done the front flip off the mini trampoline 15 to 20 times. He had unsuccessfully attempted the maneuver "a couple hundred" times and landed on his head, neck, or shoulders, without injury.
On the day of his injury, Matt was practicing with the Power Tumblers. He felt he needed no further instruction on doing the front flip. He knew he could do it successfully. He received instructions from Park prior to the day of his injury on how to do the front flip. He had never seen a safety belt or harness used with the mini trampoline, although he had seen it in floor maneuvers. Prior to the injury, Park did not give him any safety warnings concerning the front flip. He did not understand that there was a risk of breaking his neck. Park had previously told Matt and his friends that they could come to any of the practices held by the Power Tumblers. He did not have a specific invitation from Park to attend this particular practice.
Matt overrotated on the jump that resulted in his injury. When he landed, his head was between the two crash mats. He did not see any spaces between the mats prior to his fall. He did not ask Park or anyone else to spot for him. Park did not say spotters had to be there. Matt was not afraid of any injury because he thought he was being properly trained, since his tumbling classes were held at the YWCA.
When he was a child, Matt learned he should not land on his head when jumping from a height and he was warned that he should not dive into a shallow pool because he might hurt his neck.Andrew Garrett, a friend of Matt's and a witness to the accident, testified in his deposition that Park did not discuss any safety considerations prior to using the mini trampoline. Garrett never saw any spotters at the mini trampoline. Park said he and Matt could be on the Power Tumblers team and they started going to practice sessions. Matt had to work and missed the first four weeks of practice. The day of the accident was his first day back. Garrett stated that there were thinner mats beneath the crash mats and they were "velcroed" together, but sometimes they came apart.When Matt made his jump on the day of his injury, Park was talking to a parent. When Garrett saw him, Matt's head was on the seam between the two crash mats. The mats were seven to eight inches thick. When Garrett knelt down to help Matt, his knee was in the seam, touching the mats underneath.
Park testified in his deposition that he had some formal education in gymnastics or tumbling at a teacher's college many years ago and has been involved as a participant or a coach since the 1930s. He started working with the Power Tumblers in 1987. When he took over the program, they were already using the mini trampoline and he assumed they did not need instruction from him in how to use it. A safety belt could not be used with the maneuvers performed off the mini trampoline by the Power Tumblers because the participants run 30 feet, spring off the mini trampoline, and go 8 to 10 feet in the air. The belt could not be recoiled quickly enough. Spotters are not effective for use with an adult-sized male. The only precautions that may be effective are to use mats and to teach the maneuvers slowly. Park stated that he warned all participants in the Power Tumblers program and the YWCA tumbling classes of the risks involved in the use of the mini trampoline. However, he did not specifically warn every individual that even if the maneuvers were done correctly, there was still a risk of serious injury.
The entire floor area around the trampoline was covered with two-inch floor mats. The eight-inch-thick crash mats were placed on top of the floor mats. The crash mats were up against the wall so they would not move. Matt had an intermediate skill level; he was qualified to do a front flip off the mini trampoline. However, he was not qualified to become a Power Tumbler. Park denied inviting Matt or Garrett to join the Power Tumblers or practice with them.
Park saw Matt and Garrett at the Power Tumblers' practice the evening of the accident; he did not object to their being there because they had already paid for the Mt. Zion tumbling class but could not attend due to work obligations. It was within Park's discretion to allow them to participate in the Power Tumblers class. On the evening of the accident, each person in the class was to do only whatever maneuver off the mini trampoline he or she was capable of doing.
The YWCA sent out quarterly brochures to its members that included an advertisement of Park and his tumbling classes. Park identified payroll checks to him from the YWCA from August 1990 to January 14, 1993. He taught tumbling classes there. He considered himself an employee of the YWCA. The YWCA withheld taxes from his checks and he was covered under its insurance. He asked for, and received, permission to hold Power Tumblers practices at the YWCA. Park worked for the YWCA until May 1995. The YWCA did not pay him for the hour he coached the Power Tumblers.
At the beginning of the October 6, 1997, hearing on the motions for summary judgment, the trial court and counsel for all parties discussed what the court could consider in making its ruling. Counsel for the Park District stated the only issues on the summary judgment motions were whether a duty was owed and, if so, whether the Act provides immunity. The trial court heard arguments of counsel on the summary judgment motions. During the hearing, the trial court asked what evidence there was as to whom Park was working for at the time of Matt's injury. The court allowed a short recess so that counsel for all parties could review the discovery materials and when the hearing resumed, the issue of Park's alleged agency relationship with the YWCA ...