Appeal from the Circuit Court of Kane County. No. 97-L-0301
Honorable Gene L. Nottolini, Judge, Presiding.
JUSTICE McLAREN delivered the opinion of the court:
The defendant, The Forest Preserve District of Kane County, Illinois, appeals from a judgment entered upon a jury verdict in favor of the plaintiff, A.D., a minor, by his parent, guardian, and next friend, J.D., finding the defendant liable for injuries sustained by the plaintiff when he ran into a tree located in the defendant's forest preserve. The defendant appeals the trial court's denial of its motions for a directed verdict and judgment notwithstanding the verdict. We reverse.
The following facts are taken from the record. On May 22, 1996, the plaintiff, who was eight years old, went to the Oakhurst Forest Preserve (owned by the defendant, a local public entity) with his classmates. The plaintiff was injured when he ran into a honey locust tree while playing tag. J.D., the plaintiff's guardian and next friend, filed a complaint alleging that the defendant was willful and wanton in allowing the continued growth of a thorny honey locust tree in a recreational part of the forest preserve. The plaintiff sought recovery for pain and suffering, disfigurement, loss of normal life, and medical expenses. The complaint alleged that the plaintiff had assigned his rights of recovery of medical expenses to his mother, J.D.
Subsequently, the plaintiff filed an amended complaint removing the allegation regarding the assignment of J.D.'s right to recover medical expenses. The plaintiff then filed a second amended complaint containing two counts. Count I alleged that the defendant was willful and wanton in allowing the continued growth of a thorny honey locust tree in a recreational part of the forest preserve. Count II sought recovery of the plaintiff's medical expenses. The plaintiff then amended his original complaint and attached a document assigning J.D.'s rights to recover medical expenses to her son, the plaintiff.
The following evidence was heard at the trial. The plaintiff testified that, as he was playing tag with his friends, he ran backwards, quickly turned around, and ran face first into a honey locust tree. A thorn from the tree penetrated his sternum bone and lodged in his chest near his heart. The thorn was later surgically removed from the plaintiff's chest.
Jeff Perez, an Oakhurst Forest Preserve forest ranger employed by the defendant, testified that the honey locust tree at issue had long sharp thorns and it was not the type of tree that a person can lean a hand against or brace his back upon without injury. Perez knew of the tree and its thorny condition. Perez lived at the forest preserve and had regularly mowed the grass in the area of the tree for six to seven years before the incident. The tree was the only one of its kind in that area of the forest preserve. It was located in an area of the forest preserve where people would picnic and generally recreate. The nearby picnic tables and trash cans were placed in the area by the defendant. Perez stated that it was his job to remove any known hazard in or about the forest preserve and that he used his own judgment in making this determination. A person need not become injured for him to know that something was a hazard. Perez explained that if he saw a fallen branch across a trail he would consider it a hazard and remove it. Perez took no action to remove the tree in question, place a fence around it, or place warning signs by the tree.
John Schierra, a landscape architect, testified on behalf of the plaintiff. Schierra stated that honey locust trees grew naturally and were commonly found throughout forest preserves. The honey locust tree was a low-quality tree with low esthetic value and was not in danger of extinction. Schierra opined that the tree at issue did not need to be removed, but the defendant could have allowed the grass around the tree to grow, creating a natural deterrent. According to Schierra, other trees of the same type as the honey locust were kept and buffered in this manner in the defendant's forest preserve. Allowing the grass around the tree to grow naturally would have protected visitors from the thorns. Schierra believed that the tree in question posed a hazard because it was exposed in a recreational space frequented by visitors who easily came in contact with it.
The jury returned a verdict in favor of the plaintiff and against the defendant, awarding the plaintiff $20,000 for past medical expenses, $5,000 for pain and suffering, $16,500 for disfigurement, and $500 for loss of normal life. The defendant filed this timely appeal.
On appeal, the defendant argues, inter alia, that the trial court erred by denying its motions for a directed verdict and judgment notwithstanding the verdict because the plaintiff failed to prove that the defendant owed a duty to the plaintiff or that its actions or inactions were willful and wanton.
We will not disturb a trial court's denial of motions for a directed verdict and judgment notwithstanding the verdict (judgment n.o.v.) unless all of the evidence, when viewed in a light most favorable to the opponent, so overwhelmingly favored the movant that no contrary verdict based on the evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967).
In this case it is undisputed that the defendant was a local public entity and that the Oakhurst Forest Preserve was public property within the meaning of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/1--206, 3--101 (West 1996)). It is well settled that local public entities are not liable for ordinary negligence in the upkeep of their recreational areas; they are only liable for willful and wanton conduct. See Bialek v. Moraine Valley Community College School District 524, 267 Ill. App. 3d 857 (1994). However, before the plaintiff can allege that the defendant's conduct was willful and wanton, the plaintiff must establish that the defendant owed a duty to the plaintiff. Bialek, 267 Ill. App. 3d at 860.
Here, the defendant argues that it did not owe a duty to the plaintiff because the tree at issue was an open and obvious danger and the plaintiff was not foreseeably distracted. However, because the plaintiff failed to sustain his burden of proof that the defendant's ...