The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the second motion for summary judgment filed by defendants LTMX Enterprises, Inc. ("LTMX"), Jean L. Ramsay ("Ramsay"), William G. Ramsay and Tim L. Jackson (Doc. 41). The Court has already granted summary judgment in favor of defendants William G. Ramsay and Tim L. Jackson, so it only considers the motion as it applies to defendants LTMX and Ramsay (collectively, "the defendants"). Plaintiff Donald Gilley has responded to the motion (Doc. 45), and the defendants have replied to that response (Doc. 49).
I. Summary Judgment Standard
Summary judgment is appropriate where "the pleadings, the discovery and disclosed materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396.Where the moving party fails to meet its strict burden of proof, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992). In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e)(2); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996).
Viewed in the light most favorable to Gilley, the evidence establishes the following facts. On May 7, 2006, Gilley rode his all-terrain vehicle ("ATV") at a commercial off-road motor vehicle sport facility known Lincoln Trail Motosports ("Lincoln Trail"). Lincoln Trail was operated by defendant LTMX and consisted of more than 200 acres of outdoor trails, land and grounds where ATV riders could pay a fee and ride their own ATVs. It did not provide any warnings to its invitees about the dangers of ATV riding, any traffic controls or any supervision of ATV drivers.
On the day in question, other riders were also riding their ATVs at Lincoln Trail. While riding, Gilley was seriously injured in a collision with another ATV as he came over the top of a steep hill the other side of which he was unable to see. In this lawsuit, he attributes his accident to the failure to have instructions, warnings, traffic controls and supervision for ATV riders at Lincoln Trail that would have prevented him from colliding with the other ATV. He has sued the defendants for negligence and for willful and wanton misconduct.
In his deposition, Gilley admitted that at the time of the accident he was an experienced ATV rider with over 300 hours of ATV use under his belt riding in terrain similar to that of Lincoln Trail and with groups of other riders. Based on this experience, Gilley believed he was qualified to assess whether conditions were safe for ATV riding and believed that the conditions at Lincoln Trail were safe for riding on May 7, 2006. As a consequence, he did not believe he needed safety instructions or supervision while riding his ATV at Lincoln Trail. He was also aware of the dangers of riding over "blind hills" -- hills over which one cannot see as one approaches -- and knew he should approach them with caution because of the danger of encountering another rider coming up the hill from the opposite direction. Nevertheless, he did not approach a certain blind hill with caution on May 7, 2006, and instead approached it in what he believed was an unsafe way.
The defendants ask the Court for summary judgment, arguing that in light of these admissions, Gilley cannot establish that the defendants owed him a duty to warn him about the open and obvious dangers presented by a blind hill or that their breach of a duty caused his injury. Gilley responds that his admissions are simply his opinions based on hearsay since he cannot remember anything after arriving at Lincoln Trails. He further argues that the dangers presented by the blind hill were not objectively open and obvious, so the defendants had a duty to take reasonable measures to protect its invitees from those dangers. He also maintains that the issue of causation is a jury question.
The parties agree that this case, in federal court on diversity jurisdiction, is governed by Illinois law. Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., Inc., 536 F.3d 663, 670 (7th Cir. 2008) (citing Erie R.R. v. Tompkins, 304 U.S. 64 (1938)). Under Illinois law, to prevail in a cause of action for negligence based on premises liability, the plaintiff must show a defendant owed him a duty of care, the defendant breached that duty and the breach proximately caused injury. See Marshall v. Burger King Corp., 856 N.E.2d 1048, 1053 (Ill. 2006).
A. Duty of Care and Breach
Whether a duty exists is a legal question, Marshall, 856 N.E.2d at 1053-54; Widlowski v. Durkee Foods, Div. of SCM Corp., 562 N.E.2d 967, 968 (Ill. 1990). In a prior order, the Court has explained that a duty of care exists between a possessor of property and those who enter upon his property at his invitation. Under the Illinois Premises Liability Act, an owner or occupier of land owes entrants onto the land a duty "of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them." 740 ILCS 130/2. In addition, common law also imposes a duty of reasonable care on a possessor of land to those he invites to his property.
The question before the Court now is whether the duty LTMX and Ramsay owed Gilley as a business invitee included the duties to give instructions about riding at Lincoln Trails, to warn about the risks and dangers of riding at Lincoln Trails, to institute traffic control measures designed to avert ATV collisions, and to supervise ATV riders so as to minimize risks to themselves and others. The defendants argue their duty to Gilley did not include the duty to warn about open and obvious hazards like the inability to see over hills or to warn experienced ATV riders of the ...