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Foust v. Forest Preserve District of Cook County

Court of Appeals of Illinois, First District, Fifth Division

September 30, 2016

JOE FOUST, as Administrator of the Estate of Molly Anne Glynn, Deceased, Plaintiff-Appellee and Cross-Appellant,
v.
THE FOREST PRESERVE DISTRICT OF COOK COUNTY, Defendant-Appellant and Cross-Appellee.

         Appeal from the Circuit Court of Cook County, No. 2014 L 011513 The Honorable William E. Gomolinski, Judge Presiding.

          PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Hall and Reyes concurred in the judgment and opinion.

          OPINION

          GORDON PRESIDING JUSTICE

         ¶ 1 The instant consolidated interlocutory appeals arise from plaintiff's lawsuit against defendant, the Forest Preserve District of Cook County, after the death of Molly Anne Glynn, a woman who was killed when she was struck by a tree limb while riding her bicycle on one of defendant's paved bicycle paths. After defendant filed a motion to dismiss based on immunity under four sections of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 2012)), the trial court found that defendant was immune from liability for its negligent conduct under one section, but that it was not immune under the other three sections. The trial court certified two questions concerning immunity for review pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 1, 2015), and each party filed a petition for leave to appeal concerning one of the two questions. We allowed both petitions for leave to appeal and consolidated the two appeals. For the reasons that follow, we now answer the trial court's first certified question in the affirmative and the second certified question in the negative.

         ¶ 2 BACKGROUND

         ¶ 3 I. Complaint

         ¶ 4 On February 17, 2015, plaintiff filed a four-count amended complaint against defendant, alleging that on September 5, 2014, decedent Molly Anne Glynn was riding her bicycle through Erickson Woods[1] on a bicycle path owned and maintained by defendant. According to the complaint, "[o]n September 5, 2014, and for a long time prior thereto, there existed trees, shrubs and other vegetation in close proximity to the edges of the bike path." While decedent was operating her bicycle, "a large section of diseased, defective and weakened tree broke off[, ] crashing towards the ground and striking" decedent, who died the next day from her injuries.

         ¶ 5 Count I of the complaint was a survival action for negligence and alleged that defendant was negligent in (1) failing to adequately inspect the trees, shrubs, and vegetation along the bicycle path "when it knew or should have known that some of the trees, shrubs or vegetation presented a risk to persons using the bike path"; (2) failing to inspect the trees, shrubs, and vegetation for signs of disease or other weakened conditions "that could result in trees or portions of trees, shrubs or vegetations falling onto the bike path"; (3) failing to prune, trim, or remove diseased or otherwise weakened trees, shrubs, or vegetation or parts thereof "that were located adjacent to and in close proximity to the bike path"; (4) failing to maintain the property free from unreasonable risks to persons using the bicycle path; (5) disregarding notice of deceased or otherwise weakened trees, shrubs, or vegetation or parts thereof "that were located adjacent to and in close proximity to the bike path"; (6) failing to properly inspect or maintain trees, shrubs, or vegetation after receiving notice of the dangerous conditions of the trees, shrubs, or vegetation "near the bike path"; (7) failing to provide a safe means of ingress and egress from the bicycle path; (8) failing to give adequate warning to users of the bicycle path despite having notice of the presence of trees, shrubs, and vegetation that were diseased or weakened; and (9) failing to barricade or otherwise prevent the use of the bicycle path in the area where trees, shrubs, and vegetation were diseased or weakened despite having notice of the presence of such trees, shrubs, or vegetation. Count I alleged that as a result of such negligent acts, decedent "was struck by a tree, shrub or vegetation or a limb or part thereof that was located adjacent to and in close proximity to the bike path causing her to suffer injuries and damages including conscious pain and suffering prior to her death on September 6, 2014."

         ¶ 6 Count II was a wrongful death action for negligence and contained similar allegations as count I, except that it alleged that decedent left her husband (the administrator of her estate and the plaintiff in the instant case) and her two children as her survivors.

         ¶ 7 Count III was a survival action alleging willful and wanton conduct on the part of defendant. Count III included similar allegations to counts I and II, except it added allegations that defendant had inspected the trees, shrubs, and vegetation along the bicycle path in Erickson Woods, including the tree that struck decedent, and knew that there were trees, shrubs, or other vegetation that were diseased or otherwise weakened and presented a risk of harm to persons using the bicycle path and placed "X's" on those trees. Count III alleged that defendant's inspection included all of the trees, shrubs, and other vegetation in the area within 50 feet of the place where decedent was injured. Count III enumerated the same problems with defendant's conduct as in counts I and II, except that count III alleged that defendant engaged in its conduct "[w]ith an utter indifference and a conscious disregard for the safety of the public and Molly Anne Glynn."

         ¶ 8 Finally, count IV was a wrongful death action alleging willful and wanton conduct on the part of defendant. Count IV was similar to count III, except it alleged that decedent left her husband and her two children as her survivors.

         ¶ 9 II. Motion to Dismiss

         ¶ 10 On March 10, 2015, defendant filed a motion to dismiss the complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2014)), arguing that defendant was immune from liability pursuant to sections 3-107(b), 2-201, 3-104, and 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-107(b), 2-201, 3-104, 3-106 (West 2012)). Only immunity pursuant to sections 3-107(b) and 3-106 are at issue on the instant appeal, so we relate the parties' arguments concerning only those sections.

         ¶ 11 With respect to section 3-107(b), which provides immunity for an injury caused by a condition of "[a]ny hiking, riding, fishing or hunting trail" (745 ILCS 10/3-107(b) (West 2012)), defendant argued that "plaintiff's Amended Complaint is solely and unambiguously based upon the condition of the Trail, namely the presence of weakened trees along the Trail." Defendant further argued that the character of the trail established it as a "riding trail" under section 3-107(b). Accordingly, defendant argued that the section 3-107(b) immunity applied.

         ¶ 12 With respect to section 3-106, which provides immunity for ordinary negligence claims[2] "where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities" (745 ILCS 10/3-106 (West 2012)), defendant argued that counts I and II should be dismissed because the trail was intended and permitted to be used for recreational purposes.

         ¶ 13 Attached to defendant's motion to dismiss was the affidavit of John McCabe, the director of defendant's department of resource management and a certified arborist. McCabe identified the bicycle path in question as defendant's North Branch Paved Trail, which was open to the public daily from dawn until dusk for hiking, jogging, dog walking, cross country skiing, inline skating, and bicycling, as well as providing access to natural areas for fishing, canoeing, and bird watching. McCabe stated that the trail extended from Dundee Road on the north to Devon Avenue on the south, a total distance of approximately 20 miles, and wound through forested areas, the Skokie Lagoons, and along the north branch of the Chicago River. McCabe indicated that defendant's statutory mission was to acquire and hold lands " 'for the purpose of protecting and preserving the flora, fauna, and scenic beauties within such district *** as nearly as may be, in their natural state and condition, for the purpose of the education, pleasure, and recreation of the public' " (quoting 70 ILCS 810/7 (West 2012)), and that in managing the "flora, fauna, and scenic beauties of the District, " defendant exercised its discretion in deciding how to best manage those resources "consistent with its statutory mission and in a fiscally responsible manner." McCabe stated that "[t]here is no regulation or legal authority which mandates or prescribes the manner of tree inspection, pruning or removal for property like the District."

         ¶ 14 In his response to defendant's motion to dismiss, plaintiff argued that section 3-107(b) immunity was not applicable because the tree at issue was adjacent to the trail and was therefore not a "condition of the trail" itself, as required for immunity under the section. Plaintiff further argued that section 3-106 immunity did not apply because the tree in question was located 7½ feet from the trail in a thickly forested area where recreation was not intended or permitted.

         ¶ 15 Attached to plaintiff's response was the affidavit of D. Logan Nelson, a registered consulting arborist, who stated that the black locust tree that struck the decedent was growing in a "naturalized, non-recreational, woodland setting" and that the crown of the tree forked into two large limbs, one growing straight up and one that was overhanging the trail. Nelson opined that, based on her assessment of the tree, "there were obvious structural defects that, when assessed for tree failure probability, the conclusions would be that branch failure would be imminent." Nelson opined that the "structural defects" of the tree "include[d] a combination of compounding stresses that made tree failure imminent: the black locust species is prone to breakage, the architecture of the heavy and over-reaching branch overhanging the trail was poor, and the branch union of the subject tree trunk and the branch that hit Molly Glynn was seriously compromised and weakened by included bark and decay." Nelson further opined that "the consequences of the impact to target should have been assessed as great and valuable. The compounding combination of the location of the subject locust, the architecture of the long and heavy branch extending across the width of a paved and inviting path to frequent users (i.e. walkers, joggers, roller bladers, bicyclists, etc.) establishes that if branch failure occurred, the target below would be the paved path and perhaps pedestrians who frequently use the subject trail." Nelson opined that "[b]ased upon the standards criteria and accepted practices, the subject black locust presented an immediate hazard and should have been removed within twenty-four hours; as it constituted a hazard, the tree was already marked as such, hence there was no option for discretion with regards to eliminating the hazard."

         ¶ 16 Defendant filed a reply, again arguing that defendant was immune from liability. Attached to its reply was a transcript from the discovery deposition[3] of McCabe, the director of defendant's department of resource management. In his deposition, McCabe testified that a tree that was seven and a half feet from a paved trail would have an effect on the trail in a few ways: by providing shade to the trail, by "look[ing] nice" from an aesthetic perspective, and by serving as a habitat for animals and birds. McCabe acknowledged that these aspects might not affect whether someone was physically able to use the trail, but testified that they would "probably [affect] why they are going up or down the trail." McCabe further testified that shade could affect someone's physical use of the trail in that "they could be riding along, and all of a sudden it's shady and then all of a sudden it's very bright, and they may not be able to see very clearly and might go off the trail and hit a tree"; McCabe gave an additional example of the sun or shade affecting how quickly the trail dried after it rained, making some areas of the trail more slippery than others. McCabe further testified that other effects that trees could have on trails would be leaves blowing off trees, branches or limbs falling, or berries, nuts, or seeds falling from the trees.

         ¶ 17 McCabe testified that the tree that struck the decedent was marked by defendant for removal for two reasons. The main reason was the tree's "architecture, or what we call growth form of the tree, " and the secondary reason was the fact that it was a black locust tree, a species of tree that was a "lower value tree" that would have been "just easier to remove the whole tree, rather than have the tree pruned." As to the tree's architecture, McCabe explained that "from the way that the tree was growing, the vast majority of the crown[4] of the tree was growing out over the trail[.] *** [T]he tree is not going to *** straighten itself out. The crown continues to grow. Over the years, that crown is only going to get heavier, and it could create issues with bikers being able to get under the tree, or ultimately causing the tree to potentially fail." The tree was marked in approximately mid-August 2014.

         ¶ 18 III. Trial Court Order

         ¶ 19 On December 16, 2015, the trial court denied defendant's motion to dismiss as to sections 3-107(b), 2-201, and 3-104 of the Tort Immunity Act. However, the trial court granted the motion to dismiss as to section 3-106 of the Tort Immunity Act, which applied to only counts I and II of the complaint, which concerned negligence, and did not affect counts III and IV, which concerned willful and wanton conduct. With respect to section 3-106, the court found that "[t]his is definitely recreational use. It's in such close proximity to that path that people can look at it; they can see it; they can appreciate it. They can do what they want to do with it and enjoy the beauty and the nature part of it. If that's not recreational, I don't know what would be."

         ¶ 20 On January 15, 2016, plaintiff filed a motion to reconsider the court's dismissal of counts

I and II of the complaint, which was denied on March 8, 2016. During the hearing on the motion to reconsider, the trial court noted that, with respect to section 3-106, "the path was used for recreational purposes, and this tree abutted the path and hung over the path and it became part of the path." On the same day, the ...

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