Appeal from the as Natural Cook County.a Municipal CorporationHonorable Marcia Maras,Judge Presiding.
The opinion of the court was delivered by: Justice Howse
JUSTICE HOWSE delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Epstein concurred in the judgment and opinion.
Plaintiff, Steven Tagliere, filed a complaint against the defendant, Western Springs Park District (hereinafter Park District), seeking damages for injuries his minor daughter, Taiylor, sustained while playing on a seesaw owned by the Park District. The circuit court of Cook County determined that the failure of a Park District employee to discover a defect in the seesaw during his regularly scheduled inspections did not constitute willful and wanton conduct and entered summary judgment in favor of the Park District. On appeal, Tagliere alleges the failure of the Park District to discover and correct a defect in the seesaw despite repeated inspections constituted willful and wanton conduct as a matter of law and the Park District had actual or constructive knowledge of the defect and the failure to correct the defect constituted willful and wanton conduct. For the reasons set forth below, we affirm the decision of the circuit court.*fn1
In Tagliere's third amended complaint, he alleges that Taiylor, age seven, sustained a broken ankle on February 9, 2006, while playing on a defective seesaw at a park owned by the Western Springs Park District. Tagliere alleges the manufacturer of the seesaw instructed the Park District on how to inspect and maintain the seesaw. Tagliere also alleges that the seesaw was visibly defective and the Park District's failure to discover the defects on routine inspection and make repairs constituted willful and wanton conduct.
In a discovery deposition, John R. Gleason, the owner of NuToys Leisure Products, Inc., testified that the Park District purchased the seesaw from his company in 1991. The seesaw was manufactured by Landscape Structures, Inc., which sends maintenance information directly to the purchasers of the equipment.
Gleason testified that the center of the seesaw has a coil that is attached to the seesaw by four spring clamps held together by four bolts. If the clamps are missing, the seesaw will go up and down farther than it should and a "pinch point" will be created. Gleason testified that a pinch point is a space between two hard objects where a user can become injured.
Gleason testified he inspected the seesaw after the accident and observed it was in disrepair but could not determine for how long. He observed that the spring clamps were not in place, only one of four bolts was in place but was not fastened, and parts of the seesaw contained rust. Gleason testified that the defects in the seesaw were obvious.
Michele Tagliere, Taiylor's mother, testified in a discovery deposition that prior to her daughter's accident, she was not aware of any accidents on the seesaw at the park. On the day of the accident, Michele received a call from Taiylor's school informing her that Taiylor had been injured. Michele went to the school, heard Taiylor screaming, and observed Taiylor's left ankle to be severely injured. Michele called 911 and Taiylor was taken to the hospital. Michele later learned from a neighbor that Taiylor's injury occurred on the seesaw.
The next morning doctors performed a closed reduction on the broken bones in Taiylor's left ankle. Taiylor was placed in a cast on her left side from her toes up to her waist. Taiylor wore the cast for approximately two months. Taiylor was unable to attend school for approximately two months.
Tagliere testified in a discovery deposition that on the day of Taiylor's accident, he was called to the hospital where he observed Taiylor in the emergency room, heavily medicated, and with her leg in a splint.
Tagliere testified that he was not aware of any complaints about the condition of the seesaw at the park prior to the accident. Tagliere testified that he was aware of complaints regarding playground equipment in other parks prior to the accident but was not aware of any injuries as a result of defective playground equipment.
Tagliere took photographs and video of the seesaw after the accident. At that time, he observed that bolts were missing on the springs of the seesaw but he does not know for how long.
Taiylor testified in a discovery deposition that when the accident happened, five other girls were on the seesaw and she was sitting in a middle seat. Taiylor testified that while the girls rode up and down on the seesaw she was swinging her left foot when she felt pain and fell off the seesaw. Her left ankle was caught in the seesaw and she managed to pull it out. Taiylor testified that a "lunch dad" picked her up and a "lunch mom" held her foot.
Taiylor testified that she observed a bolt on the ground by the seesaw prior to her accident. She left the bolt by the seesaw and did not show it to anyone or report it to anyone.
Taiylor testified that she currently feels pain when she plays sports and trips over her left foot when she is running.
Dennis Conway, Western Springs Park District foreman, testified in a discovery deposition that he inspects the playground equipment in 12 village parks once a month. Conway observes each piece of equipment for breaks and wear. If a defect is discovered, the equipment is shut down until it is repaired. Conway keeps a file on each park containing all the original documents that came with each piece of playground equipment, including orders for new parts.
Conway, who has attended classes on playground safety, including instruction on how to inspect playground equipment, testified he had inspected the seesaw at the park both before and after the accident.
Conway viewed photos of the seesaw taken shortly after the accident and observed from the photos that bolts and clamps on the seesaw were missing. Conway testified that when he inspects the seesaw he uses a check list provided by the manufacturer. He sits on either side of the seesaw and pushes up and down, side to side, "to make sure it looks like it's acting the way it's suppose to perform and then [I] check the handheld rails, all of them, check all of the footrests, and I'll move the seats."
Conway inspected the seesaw approximately two weeks before the accident, on January 25, 2006. He also inspected it after the accident and did not observe any defects. The seesaw was eventually removed to a Park District garage where Conway participated in its repair, including adding brackets to the top of the coils. Conway is not aware of any problems with the seesaw since it was repaired. Conway also has no opinion as to how Taiylor's accident occurred.
On cross-examination, Conway testified that he is not aware of any complaints regarding the seesaw prior to the accident. He also testified that he was not aware that the seesaw was missing the brackets on top of the coils or any bolts at the time of the accident or even that the seesaw needed brackets on its top. He testified that he did not have a sufficient understanding of the design and of the seesaw to determine that it was missing bolts and clamps. Conway testified he and his supervisor Craig Himmelmann were unable to observe a defect on the seesaw after the accident. As a result, they contacted Jack Gleason from NuToys to help determine the cause of the accident and whether there were defects that needed repair.
The record contains an affidavit from plaintiff's expert engineer Gary Hutter, who possesses a bachelor of science degree in mechanical engineering and a master of science degree in environmental engineering. Hutter has worked for more than 30 years in the fields of mechanical, environmental and safety engineering and currently is employed by Meridian Engineering and Technology Company.
Hutter attested that he inspected the seesaw and opined that it was structurally unsound and in unsafe condition for use by children because bolts were missing from the bolt holes on the U-shaped bracket at the "fulcrum point" of the seesaw where two coil springs are located. The coil springs were missing spring clamps that he opined should have been attached. Hutter opined that because of the defects, gaps were created between the spring coil and the bracket and the gaps increased and decreased in size as the seesaw rose up and down creating a pinch point.
"When the seesaw is in good repair, no pinch points or crush points exist that could catch or trap any part of a child's body." Steven King, owner of Landscape Structures, Inc., the manufacturer of the seesaw, testified in a discovery deposition that his company provided installation instructions to the Park District in 1991 when it installed the seesaw. The Park District was provided with a general maintenance inspection sheet containing a checklist to establish a regular routine of inspections.
King testified that in 1991 his company did not test its playground equipment for pinch points but now such testing is standard procedure.
Craig Himmelmann, director of parks for the Western Springs Park District, testified in a discovery deposition that safety inspection of the seesaw involved checking the seats, handholds and foot pegs, to make sure they were tight. They would also rock the seesaw to check for any shifting on the fulcrum. Himmelmann testified that at the time of the accident he was not aware that the seesaw possessed clamps that were attached by bolts to the springs/fulcrum. Himmelmann did not observe empty bolt holes on the seesaw ...