Spangenberg v. Verner

SUPREME COURT CASES

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State: Illinois

Court: 5th District Appellate

Docket No: 5-99-0135 Rel

Case Date: 04/17/2001

Rule 23 Order filed
August 16, 2000;
Rehearing granted
September 20, 2000;
Opinion filed
April 17, 2001.

NO. 5-99-0135

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

EVA RENEE SPANGENBERG,
As Special Administrator of the Estate of
Frank A. Spangenberg, Deceased,

Plaintiff-Appellant,

DAVE VERNER, d/b/a Archway Skydiving
Center and d/b/a Freedom Aviation, and S.S.E.
INC.,

Defendants,

and

THE VANDALIA PARK DISTRICT,

Defendant-Appellee.

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Appeal from the
Circuit Court of
Fayette County.

No. 98-L-7

Honorable
John W. McGuire,
Judge, presiding.

JUSTICE CHAPMAN delivered the opinion of the court:

On May 24, 1997, Frank Spangenberg was killed in a skydiving accident. Spangenberg rented equipment from Archway Skydiving Center (Archway), which is locatedat the Vandalia Municipal Airport (airport). The Vandalia Park District (Park District) is amunicipal corporation that owns the airport. Archway provided the airplane to transportSpangenberg to the jump site. Spangenberg jumped from the plane at approximately 13,000feet, his chute failed to open, and he fell to his death.

Frank Spangenberg's widow, Eva (plaintiff), filed a five-count complaint against thePark District; Dave Verner, doing business as Archway Skydiving Center and doing businessas Freedom Aviation; and the parachute manufacturer, S.S.E. Inc. Counts III and V ofplaintiff's complaint alleged that the Park District, as the owner of the airport, failed toadequately supervise and monitor the activities of the fixed-base operator at the airport, failedto adequately investigate the activities of Archway, negligently renewed Archway's lease, andfailed to select an appropriate fixed-base operator to run the airport. The trial court grantedthe Park District's motion to dismiss counts III and V.

The court ruled that three separate sections of the Local Governmental andGovernmental Employees Tort Immunity Act (Tort Immunity Act) provide bases for thedismissal of count III. The court found that contracting with a fixed-base operator to operateand supervise activities at the airport was a discretionary act, which made the Park Districtimmune from liability pursuant to section 2-201 of the Tort Immunity Act (745 ILCS 10/2-201 (West 1998)). Additionally, the court found that sections 3-108 and 3-109 of the TortImmunity Act (745 ILCS 10/3-108 (West 1996); 745 ILCS 10/3-109 (West 1998)) providedimmunity for the Park District as to count III. Finally, the court held that sections 2-201 and3-108 provided immunity to the Park District for the allegations of count V. Plaintiff appealsthe trial court's ruling. We affirm in part, and we reverse and remand in part.

The Park District asks that, before we consider the merits of plaintiff's appeal, westrike certain portions of plaintiff's brief. In particular, the Park District contends thatplaintiff failed to comply with Illinois Supreme Court Rules 341(e)(1), (3), and (6) (134 Ill.2d Rs. 341(e)(1), (3), (6)). The Park District argues that the points and authorities sectionof plaintiff's brief violates Rule 341(e)(1) because it does not include the headings of thepoints and subpoints of the argument and does not list the law to which plaintiff cites in theorder in which the citations appear in the brief. The Park District also argues that plaintiff'sbrief violates Rule 341(e)(3) because the statement of the issues presented for review is nota concise itemization of the issues on review. Additionally, the Park District argues thatplaintiff's statement of facts is replete with argumentative, conclusory allegations that arewithout evidentiary support and thus violate Rule 341(e)(6).

The Park District's argument is well-taken because plaintiff's brief does deviate fromthe supreme court rules in certain instances. However, plaintiff's brief does comply with therules in other regards, and none of the violations of the rules are so flagrant as to hinder orpreclude review. See James v. Yasunaga, 157 Ill. App. 3d 450, 452, 510 N.E.2d 531, 533(1987). Therefore, we will not strike plaintiff's brief in whole or in part. However, inreviewing this appeal, we will disregard any inappropriate statements.

The standard of review of a trial court's order on a motion to dismiss is de novo. SeeHutson v. Hartke, 292 Ill. App. 3d 411, 413, 686 N.E.2d 734, 736 (1997).

The Park District argues that it is immune under section 3-108(a) of the Tort ImmunityAct (745 ILCS 10/3-108(a) (West 1996)). That section, which has been amended since theaccident, provided at the time of the accident:

"Except as otherwise provided by this Act and subject to subdivision (b)[,] neither alocal public entity nor a public employee is liable for an injury caused by a failure tosupervise an activity on or the use of any public property." 745 ILCS 10/3-108(a)(West 1996).

The word supervision includes coordination, direction, oversight, implementation,management, superintendence, and regulation. See Dixon v. Chicago Board of Education,304 Ill. App. 3d 744, 747, 710 N.E.2d 112, 115 (1999). Moreover, since the 1997 versionof section 3-108(a) did not limit the immunity to acts of negligence only, the statuteimmunized liability for both negligence and willful and wanton misconduct. See Barnett v.Zion Park District, 171 Ill. 2d 378, 392, 665 N.E.2d 808, 815 (1996).

Plaintiff's complaint alleges that the Park District failed to supervise a certain fixed-base operator and a skydiving operation at the airport. Plaintiff points out that the ParkDistrict is required to supervise the airport in order to remain certified with the IllinoisDepartment of Transportation Division of Aeronautics and in order to operate the airport. See 92 Ill. Adm. Code