June 6, 2001
No. 2--00--0841
| FIRST MIDWEST TRUST COMPANY, N.A., Guardian of the Estate of Joseph D. Schweinberg, a Minor, Plaintiff-Appellant, v. GREG BRITTON, Defendant (The Village of Round Lake | ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) | Appeal from the Circuit Court of Lake County. No. 97--L--512 Honorable Stephen E. Walter, Judge, Presiding. |
JUSTICE GEIGER delivered the opinion of the court:
The plaintiff, First Midwest Trust Company, N.A., as guardianof the estate of Joseph Schweinberg, a minor, appeals from theFebruary 22, 2000, order of the circuit court of Lake Countygranting summary judgment in favor of defendant Village of RoundLake Beach (the Village). In its complaint, the plaintiff soughtrecovery for personal injuries suffered by Joseph Schweinbergresulting from an off-road motorbike accident occurring on Villageproperty. The trial court found that Schweinberg was not anintended user of the Village's property and that the Village wastherefore immunized from liability pursuant to section 3--102 ofthe Local Governmental and Governmental Employees Tort Immunity Act(the Act) (745 ILCS 10/3--102 (West 1996)). We affirm.
The facts alleged in the plaintiff's complaint are as follows.On October 20, 1996, Schweinberg, age 12, was operating a motorizeddirt bike southbound on a dirt path on vacant property owned by theVillage. At the same time, defendant Greg Britton was operating amotorized dirt bike northbound along the same dirt trail. AsBritton proceeded to make his motorbike go over a "jump," he collided with the motorbike being operated by Schweinberg. As aresult of the accident, Schweinberg suffered a brain injury.
The physical layout of the property consisted of dirt trailsand four "jumps." The plaintiff alleged that the motorbike trailshad been in existence since 1984. The plaintiff alleged that theVillage was aware that people were using the motorbike trails onits property and that it did not warn or guard against the dangersof such conduct. The Village was also alleged to have created the"jumps" on the property by dumping large quantities of dirt, soil,gravel, and other debris across the trails. The plaintiff allegedthat visibility on the trails was limited because of the presenceof foliage, curves, hills, valleys, and the "jumps." Thesefeatures sometimes blocked the view of oncoming cyclists travelingfrom the other direction.
The plaintiff named both the Village and Britton asdefendants; however, only those counts directed against the Villageare at issue on appeal. As amended, the complaint contained fivecounts against the Village. Count I alleged that the Villagefailed to warn and guard against the dangers involved in thehazardous recreational activity of off-road motorcycling. Count IIalleged willful and wanton conduct by the Village in failing towarn and guard against the dangers of off-road motorcycling despiteits knowledge of prior injuries occurring on its property. CountIII also alleged willful and wanton conduct by the Village inpermitting its property to be used for off-road motorcyclingdespite its knowledge of dangerous conditions on its property. Count IV alleged that the Village failed to maintain its propertyin a reasonably safe condition by permitting the existence of off-road motorcycle trails and "jumps." Count V was predicated uponKahn v. James Burton Co., 5 Ill. 2d 614 (1955), and alleged thatthe Village breached its duty to protect children from a dangerouscondition on its premises.
On December 1, 1999, the Village filed a motion for summaryjudgment arguing that it owed no duty to Schweinberg under section3--102 of the Act because Schweinberg was not an intended user ofthe Village's property at the time of his injury. The Villageargued that, at the time in question, there existed a municipalordinance that specifically prohibited the operation of motorbikeson publically owned property. The ordinance provided, in relevantpart:
"It shall be unlawful for any person to operate, drive orride on any minibike, go-cart and other similarly operatedmotor-driven vehicle (exclusive of motorcycles) on any publicstreet, alley or thoroughfare, or upon the publically ownedproperty." Village of Round Lake Beach Municipal Code