Beccue v. Rockford Park Dist.

• Decision Date: 16 April 1968
• Docket Number: Gen. No. 67--125
• Citation: 236 N.E.2d 105,94 Ill.App.2d 179
• Parties: Shirley BECCUE, Appellant, v. ROCKFORD PARK DISTRICT, a Municipal Corporation, Appellee.
• Court: United States Appellate Court of Illinois

Page 105

236 N.E.2d 105

94 Ill.App.2d 179

Shirley BECCUE, Appellant, v. ROCKFORD PARK DISTRICT, a Municipal Corporation, Appellee.

Gen. No. 67--125.

Appellate Court of Illinois, Second District.

April 16, 1968.

Lawrence J. Ferolie, Rockford, for appellant.

Maynard, Maynard & Brassfield, Rockford, for appellee.

DAVIS, Justice.

The plaintiff, Shirley Beccue, brought this action against the defendant, Rockford Park District, for personal injuries suffered while tobogganing at a park owned by the defendant. In her complaint, she charged the defendant with negligence in Count I, and with wilful and wanton conduct in Count II.

The jury answered separate special verdicts, finding that the plaintiff was free from any negligence or wilful or wanton conduct proximately contributing to her injuries, and also, that the defendant was free from any negligence or wilful and wanton misconduct as charged against it. The jury rendered a general verdict for the defendant on which judgment was entered, and the plaintiff has appealed to this court.

The plaintiff here contends: that the defendant was negligent as a matter of law; that the answers to certain special interrogatories and the verdict are contrary to the manifest weight of the evidence; that certain admissions made by the defendant in its pleading were improperly excluded from the evidence, as were admissions by an employee of the defendant; that specific photographs offered in evidence by the plaintiff were also improperly excluded; that the trial court erred in instructing the jury; and that the form of verdict submitted by the court was improper.

At the time of the occurrence--December 5, 1964--the plaintiff, then twenty-one years of age, was a student at Northern Illinois University. She, along with approximately thirty students from the university, located at DeKalb, arrived at Atwood Park in Rockford, at approximately 1:00 p.m.--shortly after a moderate snowfall--for the purpose of tobogganing. They had two toboggans.

Some of the group commenced to toboggan down a run or a hill. Others, including the plaintiff, first had lunch. Apparently no one, other than this group, was using this hill at the time. After lunch, the plaintiff along with some others, went to join the group of fifteen to twenty persons who were then tobogganing. The plaintiff's first run on the toboggan was at about 2:30 p.m.; it was uneventful. After her first run, the plaintiff took her turn in line to go back up the hill. The line passed the tobaggans up from the bottom to the top of the hill. As persons got on the toboggan, the rest of the line then moved part way up the hill. Under this procedure, it took approximately thirty minutes to get back up to the top of the hill.

When the plaintiff reached the top of the hill, at approximately 3:00 p.m., she, and three boys, got on the toboggan for her second ride. She was the second person from the front. When the toboggan had proceeded approximately one-third of the way down the hill, the two boys behind and the one in front of the plaintiff, fell off it and the toboggan continued down the hill with only the plaintiff on it. It then veered to the right and struck a tree. The plaintiff, as a result, suffered very severe injuries.

At the time the boys fell off the toboggan, it apparently was going straight down the run and had not struck any bump, hole or depression. No explanation or reason was given for their fall. The members of this group had been tobogganing continually from the time they arrived at the park. There had been no incidents or accidents prior to the unfortunate one in question.

The park was open to the public on this date, as was the area in question, and apparently there were no signs either prohibiting tobogganing in the area or advising of any danger in connection therewith. A park district maintenance man was plowing snow off the roadways in the area; he did not say anything to any of the group.

The particular area or run used by the group had previously been a toboggan slide. The defendant had constructed a wooden toboggan slide at this point in the fall of 1961. The site was selected because of the pitch of the hill. The hill was wooded and the defendant cleared and leveled a straight run thereon, approximately 10 to 12 feet in width for the slide. The wooden slide was about 225 feet in length and there was a road-way approximately 175 feet from the bottom of the slide. This had to be leveled to permit the toboggans to pass safely over it. A river was about 450 feet from the bottom of the slide. And, at the bottom of the hill a curve was built up to turn the toboggans to the right and to prevent them from going into the river.

The wooden slide was removed by the defendant in September of 1964. Several reasons were given: it was difficult to keep snow on it because of its southern exposure; it was too expensive to man with sufficient help; the majority of users were from out of the park district; and it was unsafe in that the curve at the bottom was too abrupt. Also, there was apparently some danger of toboggans going over the banked curve and into the river.

The testimony, as well as the pleadings of the defendant, established that there had been a sign, or signs, stating, 'Toboggan Slide Closed,' 'Danger--No Sliding.' These signs were placed in the area after the wooden slide was closed to the public, but before it was dismantled. The signs remained after the wooden slide was removed, but it is undisputed that no such signs were at the area on the date in question, and no employee of the defendant warned, advised against, or prohibited the tobogganing. The evidence established that at least the maintenance employee who was plowing snow from the road saw the group tobogganing at the area in question and made no protest.

The plaintiff testified that she had tobogganed at Atwood Park the previous year. She did not then use the wooden slide but tobogganed where there was a path through another tree-covered area. She did not know that there had been a wooden toboggan slide at the site.

The plaintiff first argues that the defendant was guilty of negligence as a matter of law in permitting the path cut through the trees to remain in such condition--after the slide was removed--that it could be used for tobogganing; in not having the area posted on the date in question with signs warning of the danger or prohibiting the use of the hill; and in the failure of the defendant's employees to warn her of the danger or prohibit her from using the hill.

In maintaining its recreational facilities for use by the public, the body politic in the aggregate benefits from its use as does the individual user. There is a common or mutual benefit derived from the use of public recreational facilities which justifies the creation, maintenance and expenditure of public funds for such facilities. It is this common benefit which results in the individual user being an invitee to whom there is owed by the public entity the duty customarily owed to invitees, at least so long as the latter does not go beyond the bounds of his invitation. DuMond v. City of Mattoon, 60 Ill.App.2d 83, 86, 87, 207 N.E.2d 320, (1965).

The plaintiff clearly was an invitee at the time of her injury. The gate to the particular area was open, inviting the use of this area by the public, including the plaintiff. Even though signs may have been posted at another time, there were then no signs prohibiting the use of this area for tobogganing; there was no protest by the defendant's employee who saw the area used for tobogganing, and for all intents and purposes, the area was open for, and invited the use for, tobogganing.

As an invitee, the defendant owed the plaintiff, the duty of exercising reasonable care for her safety. Driscoll v. C. Rasmussen Corp., 35 Ill.2d 74, 77, 219 N.E.2d 483 (1966); Geraghty v. Burr Oak Lanes, Inc., 5 Ill.2d 153, 157, 125 N.E.2d 47 (1955). If there are hidden dangers upon the premises, the owner must use ordinary care to give warning thereof. Geraghty v. Burr Oak Lanes, Inc., supra, 158, 125 N.E.2d 47. An owner or occupier of premises, because of the superior knowledge he is expected to have relative thereto, is held to a higher standard of knowledge, presumed or actual, of defects in the premises than is an invitee. Thus, the duty to remedy or warn an invitee of defects in the premises extends not only to known defects, but also to those of which the owner could have known had he used reasonable care. Blue v. St. Clair Country Club, 7 Ill.2d 359, 363, 131 N.E.2d 31 (1956); Bogovich v. Schermer, 16 Ill.App.2d 197, 200, 147 N.E.2d 711 (1958).

Apart from the obvious dangers, the plaintiff, as an invitee, could assume that the premises were reasonably safe for the use to which the defendant had put them. Geraghty v. Burr Oak Lanes, Inc., supra, 5 Ill.2d 158, 125 N.E.2d 47.

The limits of the duty owed by one inviting another on his premises is well-defined in Altepeter v. Virgil State Bank, 345 Ill.App. 585, at page 598, 104 N.E.2d 334, at page 340 (1952):

'An owner of property is not an insurer against accident occurring on the premises of the owner, and an owner's liability to an invitee for injuries not intentionally inflicted must be predicated upon negligence, and no presumption of negligence on the part of the owner arises merely by showing that an injury has been sustained by one rightfully upon the premises. (Citation.) The rule is that an occupant or owner of premises owes to an invitee a duty to use ordinary care to have the premises in a reasonably safe condition for use in a manner consistent with the purpose of the invitation, not to lead such person into a dangerous trap and to give such person adequate and timely notice and warning of latent or concealed perils which are known to the owner but not to the invitee.'

An invitee, using the premises for his benefit and that of the owner, must be held to be equally...