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Mull v. Kane County Forest Preserve District
State: Illinois
Court: 2nd District Appellate
Docket No: 2-02-0283 Rel
Case Date: 03/10/2003

No. 2--02--0283


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


JANET MULL, 

            Plaintiff-Appellee,

v.

THE KANE COUNTY FOREST
PRESERVE DISTRICT,

          Defendant-Appellant.

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Appeal from the Circuit Court
of Kane County.


No. 00--L--201


Honorable
Pamela K. Jensen,
Judge, Presiding.

JUSTICE McLAREN delivered the opinion of the court:

Defendant, the Kane County Forest Preserve District (forestpreserve), appeals the jury verdict finding the forest preserveliable for personal injuries suffered by plaintiff, Janet Mull,when she fell while riding on the forest preserve's bike trail. Wereverse.

The following facts are taken from the record. During theafternoon of September 6, 1999, plaintiff fell from her bicycleafter encountering a rut in the Great Western Trail, a path thattraverses 17 miles of the forest preserve. The rut was locatedabout 50 yards west of the Hidden Oaks Bridge. Plaintiff sustainedinjuries due to the fall.

Plaintiff filed a complaint alleging that defendant wantonlyand wilfully breached its duty by, inter alia, failing to remedythe dangerous condition on the Great Western Trail. Defendantfiled an affirmative defense and motion for summary judgmentclaiming absolute immunity under section 3--107 of the LocalGovernmental and Governmental Employees Tort Immunity Act (the Act)(745 ILCS 10/3--107(a),(b) (West 1998)). The trial court grantedplaintiff's motion to strike and dismiss defendant's affirmativedefense and denied defendant's motion for summary judgment.

The trial court granted defendant's motion for a findingpursuant to Supreme Court Rule 308, permitting an interlocutoryappeal. 155 Ill. 2d R. 308. However, this court denied defendant'spermissive interlocutory appeal. The matter then proceeded totrial.

At trial, plaintiff testified that she was a regular rider onthe path, riding once or twice a week, and that she was aware ofthe ruts in the path. At the time of her fall, she was notdistracted and was looking straight ahead, but she forgot that theruts were present.

Plaintiff and her husband testified as to the nature andextent of plaintiff's injuries. Plaintiff suffered injuries to hershoulder, collar bone, arm, elbow, and knee. Dr. JeffreyGrosskopf, plaintiff's physician, testified by deposition thatplaintiff was beginning to heal after about six weeks but maycontinue to experience pain while performing certain activities. Dr. Charles Carroll, an orthopaedic surgeon, testified bydeposition that, during plaintiff's last visit, she felt some painand suffered from delayed healing.

Dr. Richard Olsen, a regular rider on the bike path, testifiedthat three weeks before plaintiff's fall, his wife fell whileriding on the path and Olsen called defendant and reported theincident and the condition of the path.

John Duerr, defendant's director of resources, testified that,before plaintiff's fall, a friend had told him about the ruts inthe path.

David Perfect, defendant's operations supervisor, testifiedthat he knew of no complaints of accidents caused by the conditionof the path prior to plaintiff's fall.

Finally, Eric Siegmeier, defendant's trail tradesman,testified that he maintained approximately 85 miles of the path andhad graded the gravel and limestone path around Labor Day, a fewdays before plaintiff's fall.

After deliberations, the jury returned a verdict in favor ofplaintiff. The trial court denied defendant's motion for judgmentnotwithstanding the verdict (judgment n.o.v.). This timely appealfollowed.

On appeal, defendant argues that the trial court erred bydenying its motion for summary judgment, striking its affirmativedefense, and denying its motion for judgment n.o.v. Defendantclaims that it is entitled to immunity under section 3--107(a) andsection 3--107(b) of the Act.

We first note the general rule that a denied motion forsummary judgment merges into the judgment entered at trial so thatthe order is not appealable. See Elane v. St. Bernard Hospital,284 Ill. App. 3d 865, 869 (1996). Therefore, we will review onlythe trial court's decision to deny defendant's motion for judgmentn.o.v. We will review this decision de novo. Evans v. Shannon,201 Ill. 2d 424, 427 (2002).

Defendant argues that the Act provides immunity for this typeof cause of action. We agree.

When interpreting a statute, we must ascertain and give effectto the intention of the legislature. Michigan Avenue National Bankv. County of Cook, 191 Ill. 2d 493, 503-04 (2000). The bestindication of the legislature's intent is the language of thestatute, which is "the most reliable indicator of the legislature'sobjectives in enacting a particular law." Michigan Avenue NationalBank, 191 Ill. 2d at 504. Statutory language is to be given itsplain, ordinary, and popularly understood meaning. Thompson v.Village of Newark, 329 Ill. App. 3d 536, 540 (2002). We review theinterpretation of a statute de novo. In re Estate of Dierkes, 191Ill. 2d 326, 330 (2000).

Section 3--107 of the Act relieves a public entity fromliability for injuries caused by the condition of access roads andtrails. This section provides:

"Neither a local public entity nor a public employee isliable for an injury caused by a condition of: (a) Any roadwhich provides access to fishing, hunting, or primitivecamping, recreational, or scenic areas and which is not a (1)city, town or village street, (2) county, state or federalhighway or (3) a township or other road district highway. (b)Any hiking, riding, fishing or hunting trail." (Emphasisadded.) 745 ILCS 10/3--107 (West 1998).

In our view, section 3--107(b) applies here and providesimmunity to defendant. The plain and ordinary meaning of a trailis a "marked path through a forest or mountainous region." Webster's Third New International Dictionary 2423 (1993). In Brownv. Cook County Forest Preserve, 284 Ill. App. 3d 1098 (1996), theAppellate Court, First District, applied this definition in asituation similar to the case at bar. In Brown, the appellatecourt affirmed summary judgment in favor of the Cook County ForestPreserve where the plaintiff fell while riding her bike on abicycle path. The bicycle path was paved, the land surrounding thepath was wooded and undeveloped, and the path provided access tothe wooded areas around a lake. However, a highway and a guardrailran alongside the path. Brown, 284 Ill. App. 3d at 1099. Thecourt held that, because the path was commonly used by bicyclistsand was designed to provide access to natural areas around thelake, the path was a "riding trail" within the meaning of section3--107(b) of the Act. Brown, 284 Ill. App. 3d at 1101. Accordingto the court, the fact that the path was paved was irrelevant. Brown, 284 Ill. App. 3d at 1101.

The case at bar is materially similar to Brown. It isundisputed that the trail at issue here is used as a riding path. It traverses Kane County Forest Preserve for approximately 17 milesand provides access to forests. We recognize that the trail runsthrough some developed areas, but it is surrounded by wild grassesand shrubs. Further, the nature of the land next to the trailshould not determine immunity. If it did, immunity and nonimmunitycould vary depending on an adjacent landowner's decision to developor not develop his land. We do not believe immunity should bebased on decisions made solely by private landowners.

Also, contrary to plaintiff's contention, the fact that the trail in this case was adjacent to a road is not dispositive. Plaintiff ignores that the trail in Brown was adjacent to a highwayand, unlike the trail at bar here, the Brown trail was paved. Thetrail here is even less developed than the Brown trail because itis not paved but covered with gravel and asphalt. Therefore, wedetermine that the trail at issue here, like the trail in Brown, isa "trail" within the meaning of section 3--107(b) of the Act.

The plaintiff cites Goodwin v. Carbondale Park District, 268Ill. App. 3d 489 (1994), to support her position that the trail atissue is not a "trail." However, Goodwin is distinguishable fromthis case because the trail in Goodwin was located in a developedcity park (Goodwin, 268 Ill. App. 3d at 490), whereas the trail inthis case is surrounded by wooded or undeveloped land and runsthrough a forest preserve. Thus, Goodwin is not controlling here.

In addition, we reject plaintiff's contention that the trailat issue cannot be considered a "trail" because the entrance to asubdivision is located near the path. If we accepted plaintiff'sinterpretation, immunity could be lost if a neighboring landownerdecided to develop his property. We do not believe the legislatureintended immunity to be based on the actions of a property ownerdifferent from the public entity in question.

Accordingly, the record establishes that the trail at issue isa trail within the meaning of the Act and, thus, defendant isimmune from this cause of action. Thus, the trial court erred bydenying defendant's motion for judgment n.o.v.

Because we have determined that defendant is immune undersection 3--107(b) of the Act, we need not address defendant's otherarguments regarding immunity under section 3--107(a) of the Act,the "open and obvious danger" doctrine, and certain alleged trialerrors.

The judgment of the circuit court of Kane County is reversed.

Reversed.

GROMETER and KAPALA, JJ., concur.

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