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Spangenberg v. Verner

April 17, 2001


Appeal from the Circuit Court of Fayette County. No. 98-L-7. Honorable John W. McGuire, Judge, presiding.

The opinion of the court was delivered by: Justice Chapman.

Rule 23 Order filed August 16, 2000; Rehearing granted September 20, 2000; Opinion filed April 17, 2001.

On May 24, 1997, Frank Spangenberg was killed in a skydiving accident. Spangenberg rented equipment from Archway Skydiving Center (Archway), which is located at the Vandalia Municipal Airport (airport). The Vandalia Park District (Park District) is a municipal corporation that owns the airport. Archway provided the airplane to transport Spangenberg to the jump site. Spangenberg jumped from the plane at approximately 13,000 feet, his chute failed to open, and he fell to his death.

Frank Spangenberg's widow, Eva (plaintiff), filed a five-count complaint against the Park District, Dave Verner doing business as Archway Skydiving Center and doing business as Freedom Aviation, and the parachute manufacturer, S.S.E. Inc. Counts III and V of plaintiff's complaint alleged that the Park District, as the owner of the airport, failed to adequately supervise and monitor the activities of the fixed-base operator at the airport, failed to adequately investigate the activities of Archway, negligently renewed Archway's lease, and failed to select an appropriate fixed-base operator to run the airport. The trial court granted the Park District's motion to dismiss counts III and V.

The court ruled that three separate sections of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) provide bases for the dismissal of count III. The court found that contracting with a fixed-base operator to operate and supervise activities at the airport was a discretionary act, which made the Park District immune from liability pursuant to section 2-201 of the Tort Immunity Act (745 ILCS 10/2-201 (West 1998)). Additionally, the court found that sections 3-108 and 3-109 of the Tort Immunity Act (745 ILCS 10/3-108 (West 1996); 745 ILCS 10/3-109 (West 1998)) provided immunity for the Park District as to count III. Finally, the court held that sections 2-201 and 3-108 provided immunity to the Park District for the allegations of count V. Plaintiff appeals the trial court's ruling. We affirm in part, and we reverse and remand in part.

The Park District asks that, before we consider the merits of plaintiff's appeal, we strike certain portions of plaintiff's brief. In particular, the Park District contends that plaintiff failed to comply with Illinois Supreme Court Rules 341(e)(1), (3), and (6) (134 Ill. 2d Rs. 341(e)(1), (3), (6)). The Park District argues that the points and authorities section of plaintiff's brief violates Rule 341(e)(1) because it does not include the headings of the points and subpoints of the argument and does not list the law to which plaintiff cites in the order in which the citations appear in the brief. The Park District also argues that plaintiff's brief violates Rule 341(e)(3) because the statement of the issues presented for review is not a concise itemization of the issues on review. Additionally, the Park District argues that plaintiff's statement of facts is replete with argumentative, conclusory allegations that are without evidentiary support and thus violate Rule 341(e)(6).

The Park District's argument is well-taken because plaintiff's brief does deviate from the supreme court rules in certain instances. However, plaintiff's brief does comply with the rules in other regards, and none of the violations of the rules are so flagrant as to hinder or preclude review. See James v. Yasunaga, 157 Ill. App. 3d 450, 452, 510 N.E.2d 531, 533 (1987). Therefore, we will not strike plaintiff's brief in whole or in part. However, in reviewing this appeal, we will disregard any inappropriate statements.

The standard of review of a trial court's order on a motion to dismiss is de novo. See Hutson v. Hartke, 292 Ill. App. 3d 411, 413, 686 N.E.2d 734, 736 (1997).

The Park District argues that it is immune under section 3-108(a) of the Tort Immunity Act (745 ILCS 10/3-108(a) (West 1996)). That section, which has been amended since the accident, provided at the time of the accident:

"Except as otherwise provided by this Act and subject to subdivision (b)[,] neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property." 745 ILCS 10/3-108(a) (West 1996).

The word supervision includes coordination, direction, oversight, implementation, management, superintendence, and regulation. See Dixon v. Chicago Board of Education, 304 Ill. App. 3d 744, 747, 710 N.E.2d 112, 115 (1999). Moreover, since the 1997 version of section 3-108(a) did not limit the immunity to acts of negligence only, the statute immunized liability for both negligence and willful and wanton misconduct. See Barnett v. Zion Park District, 171 Ill. 2d 378, 392, 665 N.E.2d 808, 815 (1996).

Plaintiff's complaint alleges that the Park District failed to supervise a certain fixed-base operator and a skydiving operation at the airport. Plaintiff points out that the Park District is required to supervise the airport in order to remain certified with the Illinois Department of Transportation Division of Aeronautics and in order to operate the airport. See 92 Ill. Admin. Code. §14.685 (1996). Plaintiff argues that the legislature did not intend section 3-108(a) to include immunity for State-mandated supervisory functions and instead applies only to discretionary acts of supervision. Although we agree that the Park District's supervisory function is expressly mandated, we reject plaintiff's theory.

Section 3-108(a) immunizes a local governmental entity's failure to supervise an activity on public property. The statute does not limit immunity to discretionary supervision. The court should seek the legislative intent of a statute primarily from the language of the statute. See Henrich v. Libertyville High School, 186 Ill. 2d 381, 387, 712 N.E.2d 298, 302 (1998). In Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 379, 687 N.E.2d 1042, 1047 (1997), the supreme court stated that section 3-108(a) "constitutes a carefully crafted and limited exception to liability, which bars plaintiffs' claims against local governmental units for their failure to supervise the activities of others." The court went on to hold that courts must not read conditions into the Tort Immunity Act that conflict with its plain language. See Epstein, 178 Ill. 2d at 380, 687 N.E.2d at 1047.

Allegation 7(a) of counts III and V of plaintiff's complaint involves defendant's supervisory function, where it states that defendant failed to adequately supervise and monitor the activities of the fixed-based operator. Therefore, we cannot find that the trial court erred in dismissing ...

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