Torres v. Peoria Park District

T
                                                                             Digitally signed by
                                                                             Reporter of
                                                                             Decisions
                                                                             Reason: I attest to
                             Illinois Official Reports                       the accuracy and
                                                                             integrity of this
                                                                             document
                                    Appellate Court                          Date: 2021.04.19
                                                                             16:54:58 -05'00'



                  Torres v. Peoria Park District, 

2020 IL App (3d) 190248


Appellate Court          MICHAEL T. TORRES and JAIMIE GIBSON, Plaintiffs-Appellants,
Caption                  v. THE PEORIA PARK DISTRICT, d/b/a Camp Wokanda,
                         Defendant-Appellee.



District & No.           Third District
                         No. 3-19-0248



Filed                    February 26, 2020



Decision Under           Appeal from the Circuit Court of Peoria County, No. 17-L-346; the
Review                   Hon. Michael P. McCuskey, Judge, presiding.



Judgment                 Reversed and remanded.


Counsel on               Scott B. Gibson and John R. Steigauf, of Gibson Steigauf, of
Appeal                   Waukegan, for appellants.

                         Adam P. Chaddock, of Quinn, Johnston, Henderson, Pretorius &
                         Cerulo, of Peoria, and Edward F. Dutton, of Lisle, for appellee.



Panel                    JUSTICE CARTER delivered the judgment of the court, with opinion.
                         Justices O’Brien and Wright concurred in the judgment and opinion.
                                             OPINION

¶1       Plaintiffs, Michael T. Torres and Jaimie Gibson, filed a second amended complaint against
     defendant, the Peoria Park District, alleging they sustained injuries that were proximately
     caused by defendant’s willful and wanton conduct. Defendant filed a motion to dismiss the
     plaintiffs’ second amended complaint, which the trial court granted with prejudice. Plaintiffs
     appealed. We reverse the trial court’s order granting defendant’s motion to dismiss and remand
     for further proceedings.

¶2                                               FACTS
¶3       On August 26, 2017, plaintiffs, Michael Torres and Jaimie Gibson, allegedly sustained
     injuries at a campground owned by defendant, the Peoria Park District. On December 18, 2017,
     plaintiffs filed a complaint against the Peoria Park District for damages, which was dismissed
     without prejudice. Thereafter, plaintiffs filed an amended complaint, which was also dismissed
     without prejudice. On June 22, 2018, plaintiffs filed a second amended complaint against the
     park district for damages.
¶4       In count I (regarding the injuries of Michael Torres) and in count II (regarding the injuries
     of Jaimie Gibson) of the second amended complaint, plaintiffs alleged that the park district had
     engaged in willful and wanton conduct that proximately caused their injuries. Specifically,
     plaintiffs alleged the park district “owned, operated, maintained, and patrolled” Camp
     Wokanda; Camp Wokanda included a park, camping sites, wedding/banquet facility, and
     indoor accommodations for hire, as well as access to overnight camping sites on their property
     in exchange for a monetary fee; in February 2017, plaintiffs met with an agent or employee of
     the park district for a tour of Camp Wokanda for the purpose of deciding whether to reserve
     the camp for their future wedding and reception; at that meeting, the camp’s employee
     described the rules, regulations, and policies of Camp Wokanda and led plaintiffs on a tour
     throughout the campground, during which time the employee explained that plaintiffs could
     rent one particular campsite for their exclusive use during their stay, pointed to two poles on
     each side of the path to the campsite, and explained that the poles were there for plaintiffs’
     exclusive use and could be used “for any camping or recreational purpose they so desired.”
¶5       In counts I and II, plaintiffs additionally alleged that sometime before August 26, 2017,
     plaintiffs reserved one of the campsites for multiple nights, beginning on Friday, August 25,
     2017, and paid the requested monetary fee; on August 25, 2017, plaintiffs arrived at Camp
     Wokanda, checked in with employees/agents of the park district, and were directed by the
     defendant to their designated individual campsite; on Saturday, August 26, 2017, plaintiffs
     attached their own camping hammock to two vertical parallel poles that were secured in the
     ground at the entryway of their designated campsite area and sat in the hammock together; one
     of the poles broke and fell onto both plaintiffs, causing the hammock and plaintiffs to drop to
     the ground; and no warnings were posted prohibiting the use of hammocks at the campsite.
¶6       Plaintiffs further alleged in counts I and II that in February 2017 and on August 26, 2017,
     the park district had a policy of not allowing hammocks or any other object to be hung from
     the poles and had actual knowledge that the said poles were never intended to, and did not have
     the structural ability to, support appreciable weight (including people in hammocks); at no time
     did the plaintiffs agree to or sign any type of release of liability; at no time did defendant
     communicate with plaintiffs about any rules, policies, or warnings regarding their stay and use

                                                 -2-
     of Camp Wokanda; and, on August 26, 2017, after the pole broke and injured plaintiffs, a
     Peoria police officer told one of the plaintiffs’ family members that the park district had a
     policy that did not allow erecting hammocks or any other object from any structure within the
     park district property. Plaintiffs attached the police report to the second amended complaint,
     indicating that, upon his arrival to the scene, the responding officer saw a “telephone pole”
     standing on the right of the entrance to the camp area with a hammock tied to it and a
     “telephone pole” on the ground to the left of the entrance. The responding officer also indicated
     in the report that he followed the ambulance to the hospital to gather information and, while
     Torres and Gibson were being treated, he advised Torres’s mother that “it is Peoria Park
     District Policy that we do not allow erecting hammocks, or any other object, from any structure
     within Park District properties.”
¶7        Plaintiffs also alleged in counts I and II that on and before 1975, Camp Wokanda was
     owned and used by the United States Boy Scouts, who erected numerous manmade wooden
     poles adjacent to a number of campsite openings and trails to be used to hang banners, flags,
     finish line signs, and string lights; those poles remained vertically in the ground and remained
     in their original location for many years; the poles “were not intended by the Boy Scouts to
     support any appreciable weight including the hanging of hammocks with people in them”; the
     Boy Scouts had actual knowledge, including the formation of a safety policy, that the poles
     were not safe to support any appreciable weight, including people in hammocks; in 1975, the
     park district purchased Camp Wokanda and continuously owned, operated, maintained, and
     administered Camp Wokanda to the present time; for 42 years (1975 through August 26, 2017),
     the park district kept said poles in their pre-1975 locations and had actual knowledge and a
     policy that the poles, including the pole that broke and injured plaintiffs, were unsafe and
     unable to support appreciable weight, including people sitting in a hammock; at no time did
     the park district notify plaintiffs of its policy that did not allow the hanging of hammocks from
     the poles or that its policy prohibiting hanging hammocks from the poles was due to the poles
     never having been intended to hold appreciable weight or due to the poles being old and rotted;
     the park district did not have an inspection system and did not inspect the poles to ascertain
     the condition of the poles; the park district did not post any warning signs regarding the use of
     the poles; before August 26, 2017, certain poles located on Camp Wokanda broke or fell and
     had to be removed; for many years before and on August 26, 2017, the park district had actual
     knowledge that said poles, including the pole that injured the plaintiffs, were structurally not
     intended to support any appreciable weight, including people in hammocks, as evidenced by
     its safety policy and were unsafe for use by fee-paying campers including plaintiffs; and on
     August 27, 2017, a camp employee told Torres’s family the plaintiffs’ incident “wasn’t the
     first time the camp’s structures had fallen—just the week before, an old rotted tree that hadn’t
     been properly removed fell on a tent at one of the campsites.”
¶8        Plaintiffs alleged in counts I and II that, by its acts and omissions regarding the poles, the
     park district was utterly indifferent to the safety of people on its property (including plaintiffs)
     and consciously disregarded the safety of other people (including plaintiffs). Plaintiffs alleged
     that they were injured due to the willful and wanton conduct of the park district in one or more
     of the following respects, where the park district:
                  “a. Failed to provide a safe campsite for use of the plaintiffs;




                                                  -3-
                    b. Showed an utter indifference for the safety of people on their property including
                the Plaintiff by having actual knowledge that said poles were unsafe for use by its
                patrons in hammocks;
                    c. Showed a conscious disregard for the safety of people on their property including
                the Plaintiff by having actual knowledge that said poles were unsafe for use by its
                patrons in hammocks;
                    d. Allowed an unsafe condition to exist at the campsite being the faulty and unsafe
                pole when it had actual knowledge that said pole was faulty and unsafe;
                    e. Verbally told the Plaintiffs to use said poles without any restrictions when the
                Defendant knew or should have known that said poles were unsafe for hammock use;
                    f. Required the Plaintiffs to use a particular designated campsite when it knew or
                should have known that it was unsafe;
                    g. Failed to comply with its own policies and procedures;
                    h. Failed to comply with its own policy to notify campers, including the Plaintiffs
                    not to hang a hammock on said poles due to the poles being unsafe;
                    i. Failed to comply with its own policy to notify campers, including the Plaintiffs
                not to hang a hammock on said poles due to the poles being old and rotten;
                    j. Failed to comply with its own policy to notify campers, including the Plaintiffs
                not to hang a hammock on said poles due to the poles never being intended to safely
                hold appreciable weight[;]
                    k. Failed to post any warning signs or any other communication to inform the
                Plaintiffs or other patrons of the CAMP WOKONDA policy prohibiting its campsite
                patrons from hanging hammocks on said poles;
                    l. Failed to warn of the unsafe condition of the property;
                    m. Failed to warn of the unsafe condition of the poles;
                    n. Failed to provide safe poles for use of the Plaintiffs at the campsite;
                    o. Failed to inspect said poles;
                    p. Provided unsafe poles for use of its patrons including the Plaintiffs at the
                campsite; and
                    q. Failed to remove faulty and unsafe poles from the property.”
¶9         Plaintiffs alleged that, as a direct and proximate result of one or more of the aforesaid acts
       of willful and wanton conduct of the park district, plaintiffs sustained injuries and losses. For
       plaintiff Michael Torres, as alleged in count I, his injuries included broken bones, severe spine
       injuries, the need for future surgery, and scarring. For plaintiff Jaimie Gibson, as alleged in
       count II, her injuries included broken bones and a punctured lung. Each plaintiff requested a
       judgment against the park district in an amount in excess of $50,000.
¶ 10       In addition, realleging the factual allegations contained in counts I and II, plaintiffs alleged
       in count III (related to Michael Torres) and count IV (related to Jaimie Gibson) that the park
       district violated the Premises Liability Act (740 ILCS 130/1 et seq. (West 2016)) by (a) failing
       to provide a safe campsite for use of the plaintiffs, (b) showing an utter indifference for
       plaintiffs by having actual knowledge that said poles were unsafe for use by its patrons in
       hammocks, (c) showing a conscious disregard for the safety of plaintiffs by having actual
       knowledge that said poles were unsafe for use by its patrons in hammocks, (d) allowing an

                                                    -4-
       unsafe condition to exist at the campsite being the faulty and unsafe poles when it had actual
       knowledge that said poles were faulty and unsafe, (e) verbally telling plaintiffs to use said poles
       without any restrictions when the park district knew or should have known the said poles were
       unsafe for hammock use, (f) requiring plaintiffs to use a particular designated campsite when
       it knew or should have known that it was unsafe, (g) failing to comply with its own policies
       and procedures, (h) failing to comply with its own policy to notify campers (including
       plaintiffs) not to hang a hammock on said poles due to the poles being unsafe, (i) failing to
       comply with its own policy to notify campers (including plaintiffs) not to hang a hammock on
       said poles due to the poles being old and rotten, (j) failing to comply with its own policy to
       notify campers (including plaintiffs) not to hang a hammock on said poles due to the poles
       never being intended to safely hold appreciable weight, (k) failing to post any warning signs
       or any other communication to inform the plaintiffs of its policy prohibiting its campsite
       patrons from hanging hammocks on said poles, (l) failing to warn of the unsafe condition of
       the property, (m) failing to warn of the unsafe condition of the poles, (n) failing to provide safe
       poles for use of the plaintiffs at the campsite, (o) failing to inspect said poles, (p) providing
       unsafe poles for use of its patrons including the plaintiffs at the campsite, and (q) failing to
       remove faulty and unsafe poles from the property.
¶ 11        In response to plaintiffs’ second amended complaint, the park district filed a combined
       motion to dismiss pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS
       5/2-619.1 (West 2016)), which allows a party to move to dismiss a pleading under both section
       2-615 of the Code (id. § 2-615 (providing for a dismissal of a pleading which is “substantially
       insufficient in law”)) and section 2-619 of the Code (id. § 2-619 (providing for an involuntary
       dismissal based upon certain defects or defenses)). In the section 2-615 portion of its motion,
       the park district contended that it was immune from negligence liability pursuant section 3-
       106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort
       Immunity Act) (745 ILCS 10/3-106 (West 2016)) for claims based upon a condition of public
       property intended for recreational use unless the park district was guilty of willful and wanton
       conduct, and the park district argued the plaintiffs failed to sufficiently allege the park district
       engaged in willful and wanton conduct. In further support of its section 2-615 motion, the park
       district argued immunity from liability pursuant to section 3-102(a) of the Tort Immunity Act
       (id. § 3-102(a)), which places a general duty upon local public entities to maintain its property
       in a reasonably safe condition, and the park district argued plaintiffs’ allegations indicated that
       plaintiffs’ use of the poles was not a use and plaintiffs failed to allege the park district had
       notice of an unsafe condition regarding the poles. In the section 2-619 portion of its motion to
       dismiss, the park district argued that plaintiffs’ claim was barred because the park district was
       immune from negligence liability pursuant to section 3-106 of the Tort Immunity Act, where
       plaintiffs’ allegations did not indicate the park district engaged in willful and wanton conduct
       as required by section 3-106.
¶ 12        On April 11, 2019, a hearing on the park district’s motion to dismiss took place. The trial
       court found that plaintiffs’ second amended complaint failed to properly plead facts necessary
       “to survive the Tort Immunity Act” and granted the park district’s combined motion to dismiss.
¶ 13        Plaintiffs appealed.




                                                    -5-
¶ 14                                             ANALYSIS
¶ 15        Plaintiffs appeal, arguing that the trial court erred in dismissing their complaint. In
       response, the Park district argues that the trial court correctly dismissed plaintiffs’ second
       amendment complaint as required by section 3-106 of the Tort Immunity Act (id. § 3-106).
¶ 16        A section 2-615 motion to dismiss attacks the legal sufficiency of a complaint, while a
       section 2-619 motion to dismiss admits the sufficiency of the complaint but asserts an
       affirmative defense or other matter that avoids or defeats the claim. Carr v. Koch, 

2012 IL
113414

, ¶ 27. Immunity under the Tort Immunity Act is an affirmative matter properly raised
       in a section 2-619(a)(9) motion to dismiss. Van Meter v. Darien Park District, 

207 Ill. 2d 359

,
       367 (2003).
¶ 17        As an initial matter, we note that the trial court granted the park district’s section 2-619.1
       motion to dismiss with prejudice but did not specifically indicate whether the complaint was
       dismissed pursuant to the section 2-615 portion or the section 2-619 portion of the motion.
       Accordingly, we will consider not only whether plaintiffs’ allegations are barred by an
       affirmative matter avoiding the legal effect of or defeating plaintiffs’ claims under section 2-
       619(a)(9) of the Code, but we will also consider the legal sufficiency of plaintiffs’ claims under
       section 2-615 of the Code.
¶ 18        Whether the trial court dismissed the complaint pursuant to either section 2-615 or 2-619
       of the Code, we accept as true all well-pleaded facts and all reasonable inferences that may be
       drawn from those facts, while construing the allegations in the complaint in the light most
       favorable to the plaintiff. Floyd v. Rockford Park District, 

355 Ill. App. 3d 695

, 699-700
       (2005). A motion to dismiss should not be granted unless it is clearly apparent that no set of
       facts could be proven that would entitle the plaintiff to recovery. Snyder v. Heidelberger, 

2011
IL 111052

, ¶ 8 (a section 2-619 motion “should be granted only if the plaintiff can prove no
       set of facts that would support a cause of action”); Marshall v. Burger King Corp., 

222 Ill. 2d
422

, 429 (2006) (“a cause of action should not be dismissed pursuant to section 2-615 unless
       it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to
       recovery”).
¶ 19        In their briefs on appeal, the parties both address the issue of whether plaintiffs were
       intended users of the campsite and poles and the issue of whether the park district had actual
       notice that the poles were unsafe. Those arguments are irrelevant to this case insofar as those
       arguments are made in reference to section 3-102 of the Tort Immunity Act, which codified
       the common-law duty of a local public entity to maintain its properly in a reasonably safe
       condition. See 745 ILCS 10/3-102(a) (West 2016); Monson v. City of Danville, 

2018 IL
122486

, ¶ 24.
¶ 20        Section 3-102(a) of the Tort Immunity Act provides:
                “Except as otherwise provided in this Article, a local public entity has the duty to
                exercise ordinary care to maintain its property in a reasonably safe condition for the
                use in the exercise of ordinary care of people whom the entity intended and permitted
                to use the property in a manner in which and at such times as it was reasonably
                foreseeable that it would be used, and shall not be liable for injury unless it is proven
                that it has actual or constructive notice of the existence of such a condition that is not
                reasonably safe in reasonably adequate time prior to an injury to have taken measures
                to remedy or protect against such condition.” (Emphasis added.) 745 ILCS 10/3-102(a)
                (West 2016).

                                                    -6-
¶ 21       Under the same article—article III, “Immunity from Liability for Injury Occurring in the
       Use of Public Property”—section 3-106 of the Tort Immunity Act provides:
                “Neither a local public entity nor a public employee is liable for an injury 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, unless such
                local entity or public employee is guilty of willful and wanton conduct proximately
                causing such injury.”

Id. § 3-106.

22       Here, there is no dispute that the property in question was recreational property so that
       section 3-106 of the Tort Immunity Act applies. See id.; Murphy v. Springfield Park District,
       

2019 IL App (4th) 180662

, ¶ 49 (section 3-106, and not section 3-102, governs whether a local
       public entity is liable for an injury where there is no dispute concerning the recreational nature
       of the property). Under section 3-106, the park district is liable for plaintiffs’ injuries only if
       the park district is guilty of willful and wanton conduct that proximately caused the plaintiffs’
       injuries. See 745 ILCS 10/3-106 (West 2016); Murphy, 

2019 IL App (4th) 180662

, ¶ 49; Leja
       v. Community Unit School District 300, 

2012 IL App (2d) 120156

, ¶ 10; Dunbar v. Latting,
       

205 Ill. App. 3d 786

, 792 (1993). Because the parties agree that the plaintiffs’ injuries occurred
       on recreational property, section 3-106 controls, and the issue of notice is relevant only insofar
       as it relates to whether the park district engaged in willful and wanton conduct. See Murphy,
       

2019 IL App (4th) 180662

, ¶ 50. Therefore, we need only address the issue of whether
       plaintiffs properly alleged that the park district’s willful and wanton conduct proximately
       caused their injuries.
¶ 23       Although the issue of whether a defendant’s actions amounted to willful and wanton
       conduct is usually a question of fact for the jury, a court may decide as a matter of law whether
       the plaintiff’s allegations of willful and wanton conduct are sufficient to state a cause of action.
       Leja, 

2012 IL App (2d) 120156

, ¶ 11. “Whether conduct is willful and wanton depends on the
       circumstances of each case.” Harris v. Thompson, 

2012 IL 112525

, ¶ 41; see also Barr v.
       Cunningham, 

2017 IL 120751

, ¶ 15 (“[w]e consider the totality of the evidence in determining
       whether a defendant’s conduct was willful and wanton”).
¶ 24       Section 1-210 of the Tort Immunity Act defines willful and wanton conduct as “a course
       of action which shows an actual or deliberate intention to cause harm or which, if not
       intentional, shows an utter indifference to or conscious disregard for the safety of others or
       their property.” 745 ILCS 10/1-210 (West 2016). “[A] course of action which *** shows an
       utter indifference to or conscious disregard for the safety of others or their property” “
       contemplates more than mere inadvertence, incompetence, or unskillfulness.” (Internal
       quotation marks omitted.) Leja, 

2012 IL App (2d) 120156

, ¶ 11. “Illinois courts define willful
       and wanton conduct, in part, as the failure to take reasonable precautions after ‘knowledge of
       impending danger.’ ” Barr, 

2017 IL 120751

, ¶ 20 (quoting Lynch v. Board of Education of
       Collinsville Community Unit District No. 10, 

82 Ill. 2d 415

, 429 (1980)). Willful and wanton
       conduct differs from mere negligence in that it “ ‘requires a conscious choice of a course of
       action, either with knowledge of the serious danger to others involved in it or with knowledge
       of facts which would disclose this danger to any reasonable man.’ ” Burke v. 12 Rothschild’s




                                                    -7-
       Liquor Mart, Inc., 

148 Ill. 2d 429

, 449 (1992) (quoting Restatement (Second) of Torts § 500
       cmt. g, at 590 (1965)). 1
¶ 25        “[C]ourts employing the [Tort Immunity] Act’s definition have found willful and wanton
       conduct to exist where a public entity knew of a dangerous condition yet took no action to
       correct the condition [(see, e.g., Muellman v. Chicago Park District, 

233 Ill. App. 3d 1066

,
       1069 (1992))], where a public entity was aware of prior injuries caused by a dangerous
       condition but took no action to correct it [(see, e.g., Carter v. New Trier East High School, 

272
Ill. App. 3d 551

, 557-58 (1995))], and where a public entity intentionally removed a safety
       feature from recreational property despite the known danger of doing so [(see, e.g., Benhart v.
       Rockford Park District, 

218 Ill. App. 3d 554

, 559-60 (1991))].” Leja, 

2012 IL App (2d)
120156

, ¶ 11. In Benhart, for example, the Appellate Court, Second District, held that a patron
       of a water park sufficiently stated a cause of action for willful and wanton conduct by the park
       district by alleging the owner of the water park intentionally removed nonslip strips from a
       wave pool despite knowing the wave pool was slippery without the strips. Benhart, 218 Ill.
       App. 3d at 559-60.
¶ 26        In this case, the allegations in plaintiffs’ second amended complaint indicated that, in 1975,
       the park district purchased the campground from the Boy Scouts with the wooden poles in
       place on the property at that time, so that the park district knew that the poles were at least 42
       years old at the time of the incident. In erecting the poles, the Boy Scouts knew the poles were
       not safe to support any appreciable weight and had implemented a policy indicating the poles
       were not safe to support any appreciable weight. At some point after purchasing the
       campground from the Boy Scouts, the park district implemented a similar policy prohibiting
       erecting hammocks, or any other objects, from any structure on park district property, and it
       can be inferred that policy included a prohibition on hanging a hammock from the poles at
       issue in this case. It can also be reasonably be inferred from the allegations that the park district
       established this policy, at least in part, for the safety of its patrons because the park district
       knew that the poles at issue were at least 42 years old and had not been originally erected to
       bear any appreciable weight, even though the poles appeared sturdy enough to do so.

           1
            “The Restatement avoids the use of the term ‘willful and wanton,’ characterizing all such conduct
       as ‘reckless.’ ” 

Burke, 148 Ill. 2d at 449

(citing Restatement (Second) of Torts § 500, Special Note
       (1965) (providing, “[t]he conduct described in this Section is often called ‘wanton or willful
       misconduct’ ”). Comment g of section 500 of the Restatement (Second) of Torts provides:
           “Reckless misconduct differs from negligence in several important particulars. It differs from that
           form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure
           to take precautions to enable the actor adequately to cope with a possible or probable future
           emergency, in that reckless misconduct requires a conscious choice of a course of action, either
           with knowledge of the serious danger to others involved in it or with knowledge of facts which
           would disclose this danger to any reasonable man. It differs not only from the above-mentioned
           form of negligence, but also from that negligence which consists in intentionally doing an act with
           knowledge that it contains a risk of harm to others, in that the actor to be reckless must recognize
           that his conduct involves a risk substantially greater in amount than that which is necessary to make
           his conduct negligent. The difference between reckless misconduct and conduct involving only
           such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk,
           but this difference of degree is so marked as to amount substantially to a difference in kind.”
           Restatement (Second) of Torts § 500 cmt. g, at 590 (1965).

                                                       -8-
¶ 27       The fact that the poles appeared sturdy is indicated by, or could be reasonably inferred
       from, the photographs of the poles, which included a photograph of the fallen pole with
       eyehooks and nails attached to it (suggesting various items were previously safely secured to
       the pole without the pole falling), and from the facts alleged that plaintiffs had secured their
       hammock to the poles and attempted to sit in the hammock together. Despite the park district
       having a safety policy in place prohibiting such use of the poles, the park district (through its
       agent or employee) allegedly specifically told plaintiffs the poles “were there for any camping
       or recreational purpose they so desired” without any qualification or indication that doing so
       would be against the park district’s policy. Similar to Benhart, the allegations in plaintiffs’
       second amended complaint indicated that the park district had a safety feature in place (a policy
       of prohibiting certain uses of the poles) but removed that safety feature by telling plaintiffs the
       poles could be used for any purpose without informing them that doing so would be against its
       policy. See

id.
¶ 28

      Given these allegations, we cannot say that it is clearly apparent that there is no set of facts
       that could be proven that would entitle the plaintiffs to recover. Accepting the allegations in
       the second amended complaint as true and drawing reasonable inferences from those
       allegations, while construing the allegations in the light most favorable to the plaintiffs, we
       conclude that plaintiffs sufficiently alleged that the park district engaged in willful and wanton
       conduct by alleging a course of action by the park district that showed an utter indifference to
       or conscious disregard for the safety of plaintiffs that proximately caused plaintiffs’ injuries.
       See 745 ILCS 10/1-210 (West 2016). Therefore, the trial court erred in granting defendant’s
       section 2-615 motion to dismiss. See 735 ILCS 5/2-615 (West 2016).
¶ 29       Additionally, based on the facts alleged, we cannot say that the park district is immune
       from liability as a matter of law pursuant to section 3-106 of the Tort Immunity Act. See

id.
§ 2-619(a)(9) (allowing

an involuntary dismissal of a plaintiff’s claim where the claim is
       “barred by other affirmative matter avoiding the legal effect of or defeating the claim”). The
       “affirmative matter” asserted in a section 2-619(a)(9) motion to dismiss must be apparent on
       the face of the complaint or be supported by affidavits or certain other evidentiary materials.
       Van 

Meter, 207 Ill. 2d at 377

. Once a defendant satisfies the initial burden of going forward
       on the section 2-619(a)(9) motion to dismiss, the burden shifts to the plaintiff to establish that
       the alleged defense is either unfounded or requires the resolution of an essential element of
       material fact before it is proven.

Id. If, after considering

the pleadings and affidavits, the trial
       judge finds that the plaintiff has failed to carry its shifted burden of going forward, the motion
       may be granted.

Id. On appeal from

a section 2-619(a)(9) dismissal, the reviewing court must
       consider whether a genuine issue of material fact existed to preclude the dismissal or, absent
       such an issue of fact, whether dismissal is proper as a matter of law.

Id. at 377-78.
¶ 30

      In this case, the legal sufficiency of plaintiffs’ allegations was admitted by the park district
       in regard to its section 2-619(a)(9) motion to dismiss. See Carr, 

2012 IL 113414

, ¶ 27 (a
       section 2-619 motion to dismiss admits the sufficiency of the complaint but asserts an
       affirmative defense or other matter that avoids or defeats the claim). The park district raised,
       as an affirmative matter, its statutory immunity from liability under section 3-106 of the Tort
       Immunity Act, arguing that the conduct alleged in plaintiff’s complaints involved acts or
       omissions that did not equate to willful and wanton conduct. However, the affirmative matter
       asserted by the park district (immunity pursuant to section 3-106 because the park district did
       not engage in willful and wanton conduct) is not apparent on the face the complaint where a


                                                    -9-
       genuine issue of material fact remains as to whether the park district did in fact engage in the
       willful and wanton conduct alleged by plaintiffs. See Murray v. Chicago Youth Center, 

224
Ill. 2d 213

, 245-46 (2007) (holding as a matter of law that the complaint alleged sufficient facts
       of the defendants’ willful and wanton conduct to create a jury question).
¶ 31        As noted above, the plaintiffs sufficiently alleged a set of facts from which, if proven, a
       jury could find the park district engaged in willful and wanton conduct that proximately caused
       plaintiffs’ injuries. See Monson, 

2018 IL 122486

, ¶ 15 (since the Tort Immunity Act is in
       derogation of the common law, we must construe the Act strictly against the public entity
       seeking immunity). Consequently, the park district did not meet its burden of establishing its
       affirmative defense under section 3-106 of the Tort Immunity Act. See Van 

Meter, 207 Ill. 2d
at 377

.
¶ 32        For the above reasons, we conclude the trial court erred in granting the park district’s
       combined motion to dismiss with prejudice.

¶ 33                                        CONCLUSION
¶ 34       The judgment of the circuit court of Peoria County is reversed, and this cause is remanded
       for further proceedings.

¶ 35      Reversed and remanded.




                                                   - 10 -

Add comment

By

Recent Posts

Recent Comments