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First Midwest Trust Co. v. Britton

June 06, 2001

FIRST MIDWEST TRUST COMPANY, N.A., GUARDIAN OF THE ESTATE OF JOSEPH D. SCHWEINBERG, A MINOR, PLAINTIFF-APPELLANT,
v.
GREG BRITTON, DEFENDANT
(THE VILLAGE OF ROUND LAKE BEACH, DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Lake County. No. 97-L-512 Honorable Stephen E. Walter, Judge, Presiding.

The opinion of the court was delivered by: Justice Geiger

The plaintiff, First Midwest Trust Company, N.A., as guardian of the estate of Joseph Schweinberg, a minor, appeals from the February 22, 2000, order of the circuit court of Lake County granting summary judgment in favor of defendant Village of Round Lake Beach (the Village). In its complaint, the plaintiff sought recovery for personal injuries suffered by Joseph Schweinberg resulting from an off-road motorbike accident occurring on Village property. The trial court found that Schweinberg was not an intended user of the Village's property and that the Village was therefore immunized from liability pursuant to section 3--102 of the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/3--102 (West 1996)). We affirm.

The facts alleged in the plaintiff's complaint are as follows. On October 20, 1996, Schweinberg, age 12, was operating a motorized dirt bike southbound on a dirt path on vacant property owned by the Village. At the same time, defendant Greg Britton was operating a motorized dirt bike northbound along the same dirt trail. As Britton proceeded to make his motorbike go over a "jump," he collided with the motorbike being operated by Schweinberg. As a result of the accident, Schweinberg suffered a brain injury.

The physical layout of the property consisted of dirt trails and four "jumps." The plaintiff alleged that the motorbike trails had been in existence since 1984. The plaintiff alleged that the Village was aware that people were using the motorbike trails on its property and that it did not warn or guard against the dangers of such conduct. The Village was also alleged to have created the "jumps" on the property by dumping large quantities of dirt, soil, gravel, and other debris across the trails. The plaintiff alleged that visibility on the trails was limited because of the presence of foliage, curves, hills, valleys, and the "jumps." These features sometimes blocked the view of oncoming cyclists traveling from the other direction.

The plaintiff named both the Village and Britton as defendants; however, only those counts directed against the Village are at issue on appeal. As amended, the complaint contained five counts against the Village. Count I alleged that the Village failed to warn and guard against the dangers involved in the hazardous recreational activity of off-road motorcycling. Count II alleged willful and wanton conduct by the Village in failing to warn and guard against the dangers of off-road motorcycling despite its knowledge of prior injuries occurring on its property. Count III also alleged willful and wanton conduct by the Village in permitting its property to be used for off-road motorcycling despite its knowledge of dangerous conditions on its property. Count IV alleged that the Village failed to maintain its property in a reasonably safe condition by permitting the existence of off-road motorcycle trails and "jumps." Count V was predicated upon Kahn v. James Burton Co., 5 Ill. 2d 614 (1955), and alleged that the Village breached its duty to protect children from a dangerous condition on its premises.

On December 1, 1999, the Village filed a motion for summary judgment arguing that it owed no duty to Schweinberg under section 3--102 of the Act because Schweinberg was not an intended user of the Village's property at the time of his injury. The Village argued that, at the time in question, there existed a municipal ordinance that specifically prohibited the operation of motorbikes on publically owned property. The ordinance provided, in relevant part:

"It shall be unlawful for any person to operate, drive or ride on any minibike, go-cart and other similarly operated motor-driven vehicle (exclusive of motorcycles) on any public street, alley or thoroughfare, or upon the publically owned property." Village of Round Lake Beach Municipal Code §5--8--1(A) (1994).

The Village argued that, because Schweinberg was prohibited from operating a motorbike on public property under the ordinance, he was not an intended user of the property and the Village did not owe him a duty to maintain the property in a reasonably safe condition.

In response to the motion for summary judgment, the plaintiff argued that, despite the Village ordinance prohibiting motorbiking, Schweinberg was nonetheless an intended and permitted user of the property. In support of its position, the plaintiff attached excerpts of the discovery depositions from the individuals who witnessed the accident, as well as from several police officers and other municipal employees who worked for the Village. This testimony indicated that, since 1975, the Village had been aware that off-road motorcycling was taking place on its property. Although Village police officers were aware of the ordinance prohibiting motorbiking, the ordinance was not always enforced. Some police officers stopped children from motorbiking only after dark or in response to noise complaints. Other officers told children that it was all right to ride on the property. Patrolmen were occasionally observed parking their cars on the side of the road to watch individuals ride their motorbikes on the property.

These witnesses also testified that the Village dumped dirt, gravel, and asphalt on the property on several occasions in 1993 and 1994. Some of these piles rose in height to between 10 and 15 feet. Individuals would use these piles as "jumps" for their motorbikes. The "jump" involved in the instant case was elevated 9 to 10 feet higher than the trail below. Several police officers testified that the jump where Schweinberg's accident occurred was particularly dangerous because of its size and location on the property.

The police officers also testified to at least three prior motorbike accidents occurring on the property. On one occasion, a teenager broke his arm when he fell off a motorbike. On another occasion, a boy injured his leg while going over a "jump" on his motorbike. Finally, two years prior to the instant accident, a boy died in a motorbike accident when the foot peg of his bike entered his leg, causing him to bleed to death. At no time prior to the accident in the instant case did the Village post any warning signs on the property.

In reliance upon this testimony, the plaintiff argued that the Village intended to permit children to motorbike on the property. The plaintiff argued that the presence of well-worn trails on the property and the Village's failure to enforce the ordinance was a manifestation of the Village's intent to allow motorbiking on the property.

On February 22, 2000, the trial court entered an order granting the Village's motion for summary judgment. The trial court found that, although Schweinberg may have been a permitted user of the property, he was not an intended user. Accordingly, the trial court found that the Village owed no duty to Schweinberg under section 3--102 of the Act. In reaching its conclusion, the trial court placed particular importance upon the Village ordinance prohibiting motorbiking on public lands. Following the denial of its motion to reconsider, the plaintiff filed a timely notice of appeal.

On appeal, the plaintiff argues that the trial court erred in concluding that the Village owed no duty to Schweinberg as a matter of law. The plaintiff argues that the Village was aware of the use of its property for off-road motorbiking since 1975 and that it took no action to stop such activities. The plaintiff argues that the Village's failure to enforce its ordinance prohibiting the conduct manifested its intent that the property be used for off-road motorbiking. The plaintiff also argues that the trial court erred in failing to ...


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