No. 2--03--0873

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BOWMAN delivered the opinion of the court:

The minor plaintiff, Steven Allen (plaintiff), was injured when he fell while jumping on atrampoline on the property of defendants, Christina and Manuel Martinez. Plaintiff, by his motherand next friend, Gayle Linder, and Linder individually, sued defendants, alleging that defendantsnegligently failed to warn plaintiff of the danger, negligently failed to supervise plaintiff, andotherwise negligently failed to prevent the injury. Defendants moved for summary judgment (735ILCS 5/2--1005(c) (West 2002)), arguing that they owed plaintiff no duty because the danger wasopen and obvious. The trial court granted the motion, and plaintiffs appeal. On appeal, they arguethat (1) the trial court erred in ruling that the obviousness of the risk negated any duty; and (2) thetrial court improperly disregarded the opinion of plaintiff's expert that the danger of injury would nothave been open and obvious to plaintiff. We affirm.

On November 9, 1999, plaintiff, who was then 11 years old, was injured while jumping on arecreational trampoline in the yard of defendants' home. At the time, defendant's son, Justin Martinez,and another boy, Brandon Rogers, were with plaintiff, but defendants were not. Plaintiffs filed a two-count complaint seeking recovery for defendants' negligence and under the Rights of Married PersonsAct (750 ILCS 65/15 (West 2000)). Defendants moved for summary judgment. They argued thatunder Sollami v. Eaton, 201 Ill. 2d 1 (2002), they owed no duty to plaintiff because the risk of injuryfrom using the trampoline was open and obvious.

The motion attached plaintiff's deposition, in which he testified as follows. Before November9, 1999, he had never been on a trampoline, and all he had known about a trampoline was that "if youjump on it, you can go higher and it looked like fun." It had not occurred to him that "you could gethurt." On November 9, 1999, plaintiff, Justin, and Rogers went to defendants' house. Eventually,Justin, Rogers, and plaintiff took turns jumping on the trampoline. When plaintiff got on, he startedjumping straight up and down in the center of the trampoline. On one jump, as he went up "realhigh," he lost his balance, fell, and broke his arm.

In response to the motion for summary judgment, plaintiffs argued that the danger of injurywas not "open and obvious" and that even if it was, defendants still owed plaintiff a duty of care. Theresponse relied on the depositions of plaintiff, Justin, and Manuel Martinez, and on the affidavit ofDonald McPherson.

In his deposition, Justin testified that the trampoline was in the backyard, with a fence hidingit from the street. On the day of the accident, the fence gate was locked, and Justin had not askedhis father about using the trampoline. Justin's deposition corroborated plaintiff's account of theaccident. In his deposition, Manuel Martinez testified that he routinely kept the fence gate lockedso that people could not come into the yard and use the trampoline. On the day of the accident, hehad not given Justin or anyone else permission to use the trampoline. Manuel Martinez had told Justinthat the trampoline was for the family only.

McPherson's affidavit summarized his background in participating in and coaching aerialgymnastics. Since 1977, McPherson had "taught gymnastics safely [sic] to hundreds of children andyoung adults of all age groups, including eleven-year-olds." His affidavit continued as follows. Atrampoline can cause grave injury when used improperly or without instruction from a trainedprofessional. A child who jumps without first ascertaining his or her abilities is at "grave risk" of injury. One possibility is that high jumping will cause mat reverberation, when a person's balancebecomes "askew" and his or her feet do not hit the mat simultaneously. This can propel the body intoa position that increases the risk of injury. In McPherson's professional opinion, a reasonable childof 11 who has not been taught by a qualified instructor would not understand the danger involved injumping on a trampoline

In granting defendants summary judgment, the trial court ruled that under Sollami, the dangerof injury from using a trampoline is open and obvious to a child of plaintiff's age. Thus, defendantsowed him no duty. The court discounted McPherson's affidavit, commenting, "what does he knowthat gives him the ability to render that decision that 11 year olds cannot appreciate the risk of atrampoline?" After the trial court denied plaintiffs' motion to reconsider, they timely appealed.

On appeal, plaintiffs assert that (1) summary judgment was improper because the risk of injuryfrom the trampoline was not open and obvious; and (2) the trial court improperly discountedMcPherson's affidavit, which in itself raises a genuine issue of fact about whether the danger from the trampoline was open and obvious. Defendants respond that this case is indistinguishable from Sollamiand that, for various reasons, McPherson's opinion should not be considered. We agree withdefendants that Sollami controls and that defendants owed no duty. We also hold that McPherson'sopinion deserves no weight because it is in essence a conclusion of law and inconsistent with Sollami.

We review de novo a grant of summary judgment. Outboard Marine Corp. v. Liberty MutualInsurance Co., 154 Ill. 2d 90, 102 (1992). Summary judgment is proper when the pleadings,depositions, and other matters on file establish that there is no genuine issue of material fact and thatthe moving party is entitled to judgment as a matter of law. DeMarco v. Ecklund, 341 Ill. App. 3d225, 227 (2003). Whether the defendant in a negligence case owes the plaintiff a duty is a questionof law. Ziemba v. Mierzwa, 142 Ill. 2d 42, 47 (1991). For the reasons that follow, we hold thatdefendants did not owe plaintiffs a duty. Thus, summary judgment for defendants was proper.

In Sollami, the 15-year-old plaintiff jumped up and down in the center of a recreationaltrampoline. Several other people simultaneously jumped on the perimeter in order to propel her higherthan she could go on her own power. While engaged in this "rocket jumping," the plaintiff was injuredas she landed on the mat. Sollami, 201 Ill. 2d at 4. She sued the manufacturer of the trampoline andthe owner of the property where she was injured. The supreme court ruled that neither defendantowed the plaintiff a duty.

The court held first that the manufacturer had no duty to warn the plaintiff of the danger fromjumping on a trampoline because the risk was open and obvious. The existence of a duty did notdepend on whether the particular plaintiff knew of the danger but on an "objective" test--whether anordinary person would be aware of the risk. Sollami, 201 Ill. 2d at 7. The court reasoned that thedanger of injury from jumping on a recreational trampoline is akin to that of falling from a height, adanger that the court had deemed "open and obvious to any child old enough to be allowed at large." Sollami, 201 Ill. 2d at 14. Thus, the manufacturer had no duty to warn the teenage plaintiff of the risksattendant on "rocket jumping" on a recreational trampoline. Sollami, 201 Ill. 2d at 14.

The court next held that the property owner owed no duty to the plaintiff. The court cited thegeneral rule that a landowner is "not liable" for physical harm a person suffers from an open andobvious danger unless the landowner has reason to believe either that the person's attention will bedistracted from the danger or that the person will reasonably proceed to encounter the obvious risk. Neither exception applied. Sollami, 201 Ill. 2d at 15, quoting Restatement (Second) of Torts