Court of Appeals of Illinois, First District, Fifth Division
ARTENIA BOWMAN, Individually and as Mother and Next Friend of Cheneka Ross, a Minor, Plaintiff-Appellant,
THE CHICAGO PARK DISTRICT, a Municipal Corporation, Defendant-Appellee
Appeal from the Circuit Court of Cook County. No. 11 L 7865. The Honorable Kathy M. Flanagan, Judge Presiding.
In an action for the broken ankle plaintiff's 13-year-old daughter suffered while using a slide in one of defendant's city parks, the trial court erred in entering summary judgment for defendant on the ground that the child was not an intended user of the slide, which was designed for children under 12 years old, since defendant failed to cite any case in which a child was charged with the responsibility of knowing city ordinances without a sign or other notice and defendant did not inform any park users, by any means, that the park and slide were only intended for children under 12; therefore, the cause was remanded to allow the trial court to decide whether the slide's condition was open and obvious and whether defendant's failure to repair the slide after receiving notice was willful and wanton conduct.
For Appellant: Paul A. Greenberg, Briskman Briskman & Greenberg, of Chicago, IL.
For Appellee: George P. Smyrniotis, Risk Management Senior Counsel, Robert L. Raymond, Marie Christelle Levesque (Legal Extern), Chicago Park District, of Chicago, IL.
JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Taylor concurred in the judgment and opinion.
[¶1] Plaintiff Artenia Bowman, individually and as mother and next friend of Cheneka Ross, a minor, filed suit in the circuit court of Cook County against the Chicago Park District (CPD) alleging willful and wanton conduct for failing, for almost a year, to repair a damaged slide. Plaintiff's daughter, Cheneka Ross, age 13, was going down a slide on April 21, 2011, when her foot became caught in a hole in the plastic at the bottom of the slide, resulting in a fractured ankle. Defendant CPD
owns the property and maintains the playground equipment, including the slide.
[¶2] Defendant filed a motion for summary judgment (735 ILCS 5/2-1005 (West 2010)) claiming: (1) that it did not owe any duty to Cheneka because she was not an intended user of the slide since she was 13 years old and the slide was intended for children aged under 12; and (2) that the hole at the bottom of the curved slide was an open and obvious risk that the 13-year-old should have avoided. Plaintiff, in her response to defendant's motion for summary judgment, claims: (1) that defendant failed to establish as a matter of law that CPD had designated the park and the slide for only children under 12 years old; (2) that the danger created by the hole at the bottom of the curved slide was not open and obvious; and (3) that CPD's failure to repair the slide, after being informed almost a year earlier of the danger, constituted willful and wanton conduct.
[¶3] The trial court granted defendant's motion for summary judgment, finding that 13-year-old Cheneka had violated a CPD ordinance by using a slide that had been designed for children under 12 years old, although there were no signs to indicate an age limit. Since the trial court found that Cheneka was not an intended user of the slide, it did not discuss whether the damage was open and obvious or whether CPD's failure to repair the slide was willful and wanton conduct.
[¶4] On this direct appeal, plaintiff argues: (1) that the trial court erred by granting defendant summary judgment on the basis that 13-year-old Cheneka was not an intended user of defendant's slide; (2) that the danger created by the hole at the bottom of the curved slide was not open and obvious; and (3) that CPD's failure to repair the slide, after being informed of its condition almost a year earlier, constituted willful and wanton conduct.
[¶5] For the following reasons, we find the trial court erred in granting summary judgment on the basis that Cheneka was not the intended user of the slide and reverse. We remand for the trial court to decide whether the slide's condition was open and obvious and whether CPD's failure to repair the slide after being notified was willful and wanton conduct.
[¶7] I. The Complaint
[¶8] The complaint at issue on this appeal is plaintiff's second amended complaint, which was filed on March 1, 2012. The suit seeks damages for injuries sustained by plaintiff's daughter, Cheneka, when she damaged her ankle on a park slide on April 21, 2011. The complaint alleges that Cheneka was using the slide when her foot came in contact with a hole that caused a fracture in her ankle; and that defendant CPD was aware that the slide was dangerous and had failed to repair it. Count I alleges defendant acted willfully and wantonly toward users of the slide by failing to repair the slide even though it had received numerous complaints from the community. Count II sought recovery on behalf of her daughter's medical expenses under the Rights of Married Persons Act, commonly known as the Family Expense Act. 750 ILCS 65/15 (West 2010).
[¶9] II. Defendant's Motion for Summary Judgment
[¶10] On January 13, 2013, defendant, as noted, filed a motion for summary judgment, claiming: (1) that it did not owe any duty to Cheneka because she was not an intended user of the slide; and (2) that the slide was an open and obvious risk that the 13-year-old should have avoided.
[¶11] CPD argued that it had an ordinance stating that children age 12 and older should not use playground equipment
designed for children under the age of 12. CPD claims that, since Cheneka was 13 years old, she violated the ordinance, and CPD was immune from liability.
[¶12] CPD also claimed that the danger at the bottom of the curved slide was open and obvious, and that the 13-year-old should not have used the slide because a reasonable child would have avoided it. CPD also claimed that, since the 13-year-old was unsupervised, she should be old enough to appreciate obvious risks; however, issues of supervision were not raised on appeal.
[¶13] Plaintiff responded to the motion contending that defendant had failed to establish that the 13-year-old was not the intended user of the slide. She claimed that the park was open to the public and no sign was present in the park prohibiting children age 12 and older from using the slide. Plaintiff also contended that the hole at the bottom of the curved slide was not open and obvious because she was unable to see the hole prior to being ...