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Dawn Simmons v. Nancy Reichardt and Greg Reichardt

December 23, 2010

DAWN SIMMONS,
PLAINTIFF-APPELLANT,
v.
NANCY REICHARDT AND GREG REICHARDT,
DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Livingston County No.05L14 Honorable Jennifer H. Bauknecht, Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann

JUSTICE STEIGMANN delivered the opinion of the court: In May 2005, plaintiff, Dawn Simmons, sued defendants, Nancy and Greg Reichardt, for injuries she sustained in June 2003 while on a trampoline. In October 2007, Nancy and Greg filed a motion for summary judgment under section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2008)), arguing that (1) they did not owe Dawn a duty to warn her that jumping on a trampoline may cause injury, (2) Dawn did not present evidence that the trampoline was defective, and (3) Greg did not own the trampoline or the property on which the trampoline was located. Following a March 2009 hearing, the trial court granted summary judgment in favor of Nancy and Greg.

Dawn appeals, arguing that the trial court erred by (1) granting summary judgment in Greg's favor and (2) denying her subsequent motion to reconsider. We disagree and affirm.

I. BACKGROUND

The following facts were gleaned from the parties' pleadings, depositions, affidavits, admissions, and other sup- porting documents filed with the trial court.

In 2003, Greg and his eight-year-old daughter, Haley, lived in a home owned by Greg's mother, Nancy. Nancy also rented a room to Matt Ryan, a mutual friend of Greg and Dawn. In June 2003, Dawn drove to Nancy's home to visit Greg, whom she had known for several years. Shortly after arriving, Dawn, Haley, and Matt began playing a game called "popcorn" on the trampoline located in Nancy's backyard. Dawn described that the game--which she had played several times on that trampoline--required a person to sit in the center of the trampoline's bouncing surface, while others bounced along the outer edges in an attempt to "pop" the sitting person into the air.

Dawn explained that because she had been experiencing lower back spasms, which she had been treated for since 2001, she did not want to jump on the trampoline. Instead, Dawn sat in the middle of the trampoline's circular surface while Matt and Haley attempted to propel her into the air. At some point, Dawn was lifted into the air, came back down onto the trampoline surface, and "bottomed out," which caused her to hit her buttock on the ground. As a result, Dawn experienced pain and immediately stopped playing on the trampoline. Thereafter, Dawn, Matt, and Haley began playing catch with a football.

After playing catch, Dawn returned to Nancy's home, where Greg and Nancy had been during Dawn's time outside with Matt and Haley. Dawn told Greg that (1) she had hit her buttock on the ground while on the trampoline and (2) her buttock and tailbone were aching. Dawn stated that Greg responded by laughing and stating, "[N]ow you know why I don't go on that thing." Later that evening, Dawn experienced an aching tailbone but "could still walk and move around." Dawn spent the night at Nancy's home, and the following morning, experienced pain in her lower back and tailbone area that intensified as the day progressed. Eventually, Dawn drove to a drugstore to fill a prescription that her doctor had prescribed for muscle spasms months earlier.

Two weeks later, Dawn sought medical attention for her lower back, and her doctor prescribed an oral steroid. During a second doctor visit, the physician ordered a magnetic resonance imaging test. Shortly thereafter, Dawn called Greg and asked him to file a claim with his insurance company because she did not have health insurance. Greg initially responded that he would do so, but a few days later when Dawn called Greg about her request, he refused to take her call. In September 2003, Dawn had surgery on a disk in her lower back that had been putting pressure on her spinal cord. Dawn claimed that as a direct result of the trampo-line incident, she was unemployed from August 2003 through January 2004.

After Dawn decided to sue Nancy and Greg, she made a written record of the events related to the trampoline incident, which spanned from June through September 2003. In an entry dated "Week of Sunday[,] June 15, 2003[,]" Dawn wrote, in pertinent part, the following:

"During the conversation, I mentioned how much pain my back was in from the trampo-line bottoming-out. Greg's response was, 'Hey, now you know why I don't go on that thing anymore! (laughs)...We just moved it to the other side of the yard, so some of the springs were probably loose."

In May 2005, Dawn filed a two-count complaint, alleging that Nancy and Greg, respectively, (1) knew the trampoline's springs were loose and (2) failed to warn her (a) about the loose springs and (b) that the weight of two adults on the trampoline would be sufficient for the trampoline's bouncing surface to make contact with the ground.

In October 2007, Nancy and Greg filed a motion for summary judgment under section 2-1005 of the Code (735 ILCS 5/2-1005 (West 2008)), arguing that (1) they did not owe Dawn a duty to warn her that jumping on a trampoline may cause injury, (2) Dawn did not present evidence that the trampoline was defective, and (3) Greg did not own the trampoline or the property on which the trampoline was located. In support of the motion for summary judgment, Greg attached an affidavit, in which he stated, in pertinent part, the following:

"2. That the property where [Dawn's] alleged injuries occurred was owned solely by [Nancy].

3. That the trampoline upon which [Dawn] allegedly sustained her injuries was purchased and owned solely by [Nancy]."

Following a March 2009 hearing on the motion for summary judgment, the trial court, in May 2009, entered a written order granting summary judgment in favor of Greg and Nancy. With regard to the grant of summary judgment in Greg's favor, the court's order stated, in pertinent part, the following:

"[I]t is undisputed that Greg *** was not home at the time of the incident, did not own the trampoline[,] and had not given [Dawn] permission to use the trampoline. [Dawn's] theory against [Greg] is *** based upon the statement he made after the incident. However, the statement itself is vague and does not show prior knowledge on the part of [Greg]. Assuming arguendo that [Greg] made this statement, he could not very well have warned [Dawn] about it since he was not home at the time of the incident. Moreover, he was not the ...


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