Tagliere v. Western Springs Park District

SUPREME COURT CASES

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State: Illinois

Court: 1st District Appellate

Docket No: 1-09-2633 Rel

Case Date: 02/25/2011

Preview:FIFTH DIVISION February 25, 2011

No. 1-09-2633 STEVEN TAGLIERE, Individually, and as Natural Guardian of TAIYLOR TAGLIERE, a Minor, Plaintiff-Appellant, v. WESTERN SPRINGS PARK DISTRICT, a Municipal Corporation, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County.

Honorable Marcia Maras, Judge Presiding.

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

1-09-2633 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.1 BACKGROUND 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

Justice Michael P. Toomin originally participated in this case. Oral argument was held on November 9, 2010. However, he has since left this court. Justice James Epstein, in Justice Toomin's stead, has considered the original briefs and record in this matter, has listened to oral arguments, has reviewed the Rule 23 order issued, and now joins in the instant decision rendered above. -2-

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1-09-2633 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. 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 Gleason testified that the defects in

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. taken to the hospital. Michele called 911 and Taiylor was

Michele later learned from a neighbor

that Taiylor's injury occurred on the seesaw.

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1-09-2633 The next morning doctors performed a closed reduction on the broken bones in Taiylor's left ankle. Taiylor was placed in a Taiylor

cast on her left side from her toes up to her waist. 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

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1-09-2633 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. observes each piece of equipment for breaks and wear. Conway 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

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1-09-2633 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 seesaw was

the accident and did not observe any defects.

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 Conway also has no opinion as to

seesaw since it was repaired.

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

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1-09-2633 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 Ushaped bracket at the "fulcrum point" of the seesaw where two coil springs are located. The coil springs were missing spring Hutter opined

clamps that he opined should have been attached.

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. Hutter opined: "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

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1-09-2633 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 Himmelmann

bolt holes on the seesaw prior to the accident.

testified that if he had seen the holes prior to the accident, he would not have known what they were. Himmelmann testified that after the accident he inspected the seesaw and referred to the installation instructions but could not determine what, if anything, was wrong with the seesaw.

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1-09-2633 Himmelmann contacted NuToys and was provided a diagram of the seesaw that indicated the seesaw was missing a clamp. Himmelmann

was unfamiliar with the term "pinch point" and testified he was unaware that equipment, like a seesaw that contains springs, if improperly installed, could create pinch points. Himmelmann testified: "There was no need to check for pinch points because I have been told by NuToys that the coils springs were designed not to pinch." Himmelmann, who has been employed by the Park District since 1985, testified that when the seesaw was installed in 1991, it arrived pre-assembled. The Park District hired an outside Himmelmann testified that

company to complete its installation.

he had no reason to believe that the seesaw was not properly installed. At the end of discovery, including the completion of 11 depositions, the Park District filed its motion for summary judgment alleging it was immune under section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3-106 (West 2008)) (hereinafter Tort Immunity Act). trial court granted the motion, holding: "[T]he local public entity is liable only The

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1-09-2633 when it is guilty of willful and wanton misconduct approximately causing the injury." The trial court found that willful and wanton misconduct in regards to playground equipment can occur only if the public entity has actual knowledge of a dangerous condition. court stated: "You must be informed of a dangerous condition, know that others have been injured or intentionally removed a safety feature." The trial court stated that there is no issue of material fact in the case at bar because there is no evidence the park district had actual knowledge that the seesaw was in dangerous condition. Tagliere's motion for reconsideration was denied. The trial

This appeal followed. ANALYSIS The issue presented for review is whether the trial court erred when it granted summary judgment for the defendant based on its immunity under the Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 2008)). judgment de novo. We review a trial court's grant of summary Adamczyk v. Township High School District 214,

324 Ill. App. 3d 920, 922 (2001). The purpose of summary judgment is not to try a question of fact but rather to determine whether a genuine issue of material

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1-09-2633 fact exists. (2008). Williams v. Manchester, 228 Ill. 2d 404, 416-17

Summary judgment is proper when the pleadings,

affidavits, depositions and admissions of record, construed strictly against the moving party, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. East, 384 Ill. App. 3d 178, 184-85 (2008). Gregory v. Beazer Summary judgment

should not be granted unless the movant's right to judgment is clear and free from doubt. Mitchell v. Special Education Joint

Agreement School District No. 208, 386 Ill. App. 3d 106, 111 (2008). A triable issue precluding summary judgment exists where the material facts are disputed or where, the material facts being undisputed, reasonable persons might draw different inferences from the undisputed facts. Williams, 228 Ill. 2d at 417.

Although summary judgment can aid in the expeditious disposition of a lawsuit, it remains a drastic means of disposing of litigation and, therefore, should be allowed only where the right of the moving party is clear and free from doubt. Ill. 2d at 417. In this case it is undisputed that Taiylor's injuries occurred on Park District property intended for recreational use and that the Park District is a local governmental unit. In Williams, 228

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1-09-2633 Illinois, local governmental units are liable in tort on the same basis as private tortfeasors unless a valid statute dealing with tort immunity imposes conditions upon that liability. LaMonte v.

City of Belleville, 41 Ill. App. 3d 697, 705 (1976) (citing Krieger v. Village of Carpentersville, 8 Ill. App. 3d 243, 247 (1972)); Austin View Civic Ass'n v. City of Palos Heights, 85 Ill. App. 3d 89, 95 (1980). The Park District alleged and the trial court found the Park District was immune under section 3-106 of the Tort Immunity Act (745 ILCS 10/3-106 (West 2008)), which 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." (West 2008). Willful and wanton conduct is defined in section 1-210 745 ILCS 10/3-106

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1-09-2633 of the Tort Immunity Act 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. This

definition shall apply in any case where a `willful and wanton' exception is incorporated into any immunity under this Act." 745 ILCS 10/1-210 (West 2008).

In order to establish willful and wanton conduct, a plaintiff must prove that a defendant engaged in a "course of action" that shows an actual or deliberate intention to cause harm or shows an utter indifference to or conscious disregard for the safety of others. 745 ILCS 10/1-210 (West 2008).

I. Failure to Discover the Defect Despite Repeated Inspections 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, citing Winfrey v. Chicago Park District, 274 Ill. App. 3d 939 (1995). In Winfrey, the plaintiff sought damages for injuries he received on Chicago Park District property. The park district

was immune from liability under the Tort Immunity Act unless the -13-

1-09-2633 park district was guilty of willful and wanton conduct. After

noting that the Tort Immunity Act includes park districts within its definition of local public entities, the court discussed various common law definitions of willful and wanton conduct discussed in Illinois case law: "Willful and wanton conduct is not a static concept. In examining the concept in the context of a negligence action, the supreme court recognized that willful and wanton conduct exists along a continuum; it may be either intentional or less than intentional, 'i.e., where there has been "a failure, after knowledge of impending danger, to exercise ordinary care to prevent" the danger, or a "failure to discover the danger through *** carelessness when it could have been discovered by the exercise of ordinary care."' " Winfrey, 274 Ill. App. 3d at 944

(quoting Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 274 (1994), quoting Schneiderman v. Interstate Tourist Lines, Inc., 394 Ill. 569, 583 (1946); citing 3 Richard A. Michael, Illinois Practice

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