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Bonavia v. Rockford Flotilla 6-1

April 27, 2004

[5] MICHAEL BONAVIA AND MARY BONAVIA, PLAINTIFFS-APPELLANTS,
v.
ROCKFORD FLOTILLA 6-1, INC., DEFENDANT-APPELLEE (ROCKFORD PARK DISTRICT, A MUNICIPAL CORPORATION, DEFENDANT).



[6] Appeal from the Circuit Court of Winnebago County. No. 00-L-207 Honorable Janet Clark Holmgren, Judge, Presiding.

[7] The opinion of the court was delivered by: Justice Byrne

[8]  On July 4, 1999, plaintiff Michael Bonavia suffered personal injuries after he slipped and fell while walking to his pontoon boat that was docked at defendant Rockford Flotilla 6-1, Inc. (the Flotilla). Michael and his wife, Mary, filed a four-count complaint alleging that the Flotilla and defendant Rockford Park District negligently caused Michael's injuries and Mary's loss of consortium. Rockford Park District was dismissed from the action and is not a party to this appeal. The Flotilla moved for summary judgment, arguing that it owed no duty to warn or protect Michael because he slipped on a natural accumulation of algae. The trial court agreed and granted the Flotilla summary judgment. Plaintiffs appeal, arguing that the Flotilla was not entitled to a judgment as a matter of law because it owed and breached a duty to Michael under section 343 of the Restatement (Second) of Torts. Restatement (Second) of Torts §343 (1965). We affirm.

[9]  FACTS

[10]   In early June 1999, plaintiffs purchased a pontoon boat and piloted it to the Flotilla, where they docked it. Defendant Rockford Park District leases the premises to the Flotilla, which in turn rents dock space to patrons like plaintiffs who store boats on the Rock River. The Flotilla features a concrete ramp that descends from shore into the water, allowing patrons to launch their boats. A sign near the ramp states "Caution, Slippery When Wet." Immediately adjacent to the launch ramp is a concrete step, described by the parties as "the approach," which sits about four to eight inches higher than the ramp. The approach is approximately five-by-five feet and serves as the entry to a pier leading to wooden docks that float on the river. Before the date of the incident, Michael had visited the boat at the Flotilla four times but had not launched the boat from the dock.

[11]   Michael testified that, at approximately 6 p.m. on July 4, 1999, plaintiffs went to the Flotilla, where their pontoon boat was docked. The weather was clear, and the sun had not yet set. When Michael arrived, he noticed that the approach was overgrown by weeds and other vegetation. Moreover, some boards on the pier were broken or missing. The portion of the pier immediately adjacent to the approach was covered with something that appeared to be "outdoor carpeting." The concrete launch ramp was cracked and strewn with vegetation, twigs, and gravel. On July 4, 1999, the water level was high, reaching near the top of the launch ramp and reducing the space available for accessing the approach.

[12]   Michael made at least one or two trips from his car to the boat, transporting items such as lawn chairs. On his final trip, Michael carried a portable toilet measuring 22-by-15-by-20 inches and weighing 35 to 40 pounds. Michael walked along the top edge of the launch ramp until he reached the concrete approach. As he stepped onto the approach, he lost his balance and fell on his back. The left side of his back struck the approach and the right side of his back struck the launch ramp. After he fell, Michael noticed algae on the boat launch ramp.

[13]   Michael experienced severe pain throughout his torso, back, and legs; and for three minutes he could not stand. A neighboring boater eventually helped Michael to his feet and carried the toilet to Michael's boat. Michael did not immediately seek medical attention because he did not wish to disrupt his family's Independence Day festivities. Michael lay down on the boat and ate a small meal, and the family launched the boat to watch the fireworks. Michael summoned paramedics five hours later because his pain had not subsided. Because the paramedics could not cross the approach with their gurney, Michael's son piloted the boat to the launch ramp, where Michael was placed in an ambulance. Michael was hospitalized for four days with broken ribs and a pneumothorax. He also developed diabetes.

[14]   The record contains four photographs of the approach, launch ramp, and pier. Camera-generated date stamps on the prints indicate that one photo was shot four weeks after the incident and the remaining three photos were shot eight weeks after the incident. The water level is higher in the photo taken four weeks after the incident, but the more recent photos suggest that the premises and surrounding vegetation were otherwise unchanged.

[15]   On June 30, 2000, plaintiffs sued the Flotilla and Rockford Park District for Michael's injuries and Mary's loss of consortium. The counts directed toward Rockford Park District were dismissed without prejudice. The remaining counts alleged that the Flotilla was negligent. Plaintiffs argued that the Flotilla owed a duty to "maintain its piers in a reasonably safe condition, and not create any hazardous conditions on the ramp in front of the boat launch in such a way so as to cause an unreasonable risk to those individuals lawfully thereon," including Michael. Plaintiffs alleged that the Flotilla breached that duty by knowingly (1) creating or allowing a hazardous and unsafe condition on the launch ramp, (2) failing to warn Michael of the algae growth and high water level, (3) failing to barricade the slippery area, and (4) allowing the launch ramp to fall into disrepair.

[16]   On April 9, 2002, the Flotilla moved for summary judgment, arguing that it owed Michael no duty to prevent his injuries because he slipped on a natural accumulation of algae. The Flotilla cited Michael's own deposition testimony in which he admitted that the waves washed the algae onto the launch ramp where he fell. The trial court granted the Flotilla summary judgment, and this timely appeal followed.

[17]   ANALYSIS

[18]   Plaintiffs allege two theories of premises liability in this case: (1) the Flotilla was negligent for failing to remove the algae or erect barricades and warnings on the launch ramp, and (2) the Flotilla was negligent for allowing bushes and other vegetation to block the approach to the extent that Michael could access the pier only by crossing the slippery launch ramp. Plaintiffs concede that the slippery condition of the launch ramp was open and obvious.

[19]   In a negligence action, the plaintiff must provide sufficient facts showing the existence of a duty owed by the defendant, a breach of that duty, and an injury proximately resulting from the breach. Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 411 (1991). Where the plaintiff fails to provide facts "from which the court could infer the existence of a duty," summary judgment for the defendant is appropriate. Vesey, 145 Ill. 2d at 411. The existence of a duty is a question of law to be determined by the court. Vesey, 145 Ill. 2d at 411.

[20]   Plaintiffs criticize the trial court's reasons for granting the Flotilla summary judgment. However, in all appeals from the entry of summary judgment, we conduct a de novo review of the evidence in the record. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995). Therefore, a review of ...


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