Bowman v. Chi. Park Dist., Corp.

• Decision Date: 05 September 2014
• Docket Number: No. 1–13–2122.,1–13–2122.
• Citation: 19 N.E.3d 75
• Parties: Artenia BOWMAN, Individually and as Mother and Next Friend of Cheneka Ross, a Minor, Plaintiff–Appellant, v. The CHICAGO PARK DISTRICT, a Municipal Corporation, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

19 N.E.3d 75

Artenia BOWMAN, Individually and as Mother and Next Friend of Cheneka Ross, a Minor, Plaintiff–Appellant

v.The CHICAGO PARK DISTRICT, a Municipal Corporation, Defendant–Appellee.

No. 1–13–2122.

Appellate Court of Illinois, First District, Fifth Division.

Sept. 5, 2014.

Paul A. Greenberg, of Briskman Briskman & Greenberg, of Chicago, for appellant.

George P. Smyrniotis, Robert L. Raymond, and Marie Christelle Levesque, all of Chicago Park District, of Chicago, for appellee.

OPINION

Justice GORDON

delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Artenia Bowman, individually and as mother and next friend of Cheneka Ross, a minor, filed suit in the circuit court of Cook County against the Chicago Park District (CPD) alleging willful and wanton conduct for failing, for almost a year, to repair a damaged slide. Plaintiff's daughter, Cheneka Ross, age 13, was going down a slide on April 21, 2011, when her foot became caught in a hole in the plastic at the bottom of the slide, resulting in a fractured ankle

. Defendant CPD

owns the property and maintains the playground equipment, including the slide.

¶ 2 Defendant filed a motion for summary judgment (735 ILCS 5/2–1005 (West 2010)

) claiming: (1) that it did not owe any duty to Cheneka because she was not an intended user of the slide since she was 13 years old and the slide was intended for children aged under 12; and (2) that the hole at the bottom of the curved slide was an open and obvious risk that the 13–year–old should have avoided. Plaintiff, in her response to defendant's motion for summary judgment, claims: (1) that defendant failed to establish as a matter of law that CPD had designated the park and the slide for only children under 12 years old; (2) that the danger created by the hole at the bottom of the curved slide was not open and obvious; and (3) that CPD's failure to repair the slide, after being informed almost a year earlier of the danger, constituted willful and wanton conduct.

¶ 3 The trial court granted defendant's motion for summary judgment, finding that 13–year–old Cheneka had violated a CPD ordinance by using a slide that had been designed for children under 12 years old, although there were no signs to indicate an age limit. Since the trial court found that Cheneka was not an intended user of the slide, it did not discuss whether the damage was open and obvious or whether CPD's failure to repair the slide was willful and wanton conduct.

¶ 4 On this direct appeal, plaintiff argues: (1) that the trial court erred by granting defendant summary judgment on the basis that 13–year–old Cheneka was not an intended user of defendant's slide; (2) that the danger created by the hole at the bottom of the curved slide was not open and obvious; and (3) that CPD's failure to repair the slide, after being informed of its condition almost a year earlier, constituted willful and wanton conduct.

¶ 5 For the following reasons, we find the trial court erred in granting summary judgment on the basis that Cheneka was not the intended user of the slide and reverse. We remand for the trial court to decide whether the slide's condition was open and obvious and whether CPD's failure to repair the slide after being notified was willful and wanton conduct.

¶ 6 BACKGROUND

¶ 7 I. The Complaint

¶ 8 The complaint at issue on this appeal is plaintiff's second amended complaint, which was filed on March 1, 2012. The suit seeks damages for injuries sustained by plaintiff's daughter, Cheneka, when she damaged her ankle on a park slide on April 21, 2011. The complaint alleges that Cheneka was using the slide when her foot came in contact with a hole that caused a fracture in her ankle

; and that defendant CPD was aware that the slide was dangerous and had failed to repair it. Count I alleges defendant acted willfully and wantonly toward users of the slide by failing to repair the slide even though it had received numerous complaints from the community. Count II sought recovery on behalf of her daughter's medical expenses under the Rights of Married Persons Act, commonly known as the Family Expense Act. 750 ILCS 65/15 (West 2010).

¶ 9 II. Defendant's Motion for Summary Judgment

¶ 10 On January 13, 2013, defendant, as noted, filed a motion for summary judgment, claiming: (1) that it did not owe any duty to Cheneka because she was not an intended user of the slide; and (2) that the slide was an open and obvious risk that the 13–year–old should have avoided.

¶ 11 CPD argued that it had an ordinance stating that children age 12 and older should not use playground equipment designed for children under the age of 12. CPD claims that, since Cheneka was 13 years old, she violated the ordinance, and CPD was immune from liability.

¶ 12 CPD also claimed that the danger at the bottom of the curved slide was open and obvious, and that the 13–year–old should not have used the slide because a reasonable child would have avoided it. CPD also claimed that, since the 13–year–old was unsupervised, she should be old enough to appreciate obvious risks; however, issues of supervision were not raised on appeal.

¶ 13 Plaintiff responded to the motion contending that defendant had failed to establish that the 13–year–old was not the intended user of the slide. She claimed that the park was open to the public and no sign was present in the park prohibiting children age 12 and older from using the slide. Plaintiff also contended that the hole at the bottom of the curved slide was not open and obvious because she was unable to see the hole prior to being injured. The slide was curved, which made it difficult for children to observe what was in front of them.

¶ 14 III. Exhibits

¶ 15 A. Cheneka Ross's Deposition

¶ 16 Cheneka testified in a discovery deposition that, on April 21, 2011, she went with friends to a park located at 1420 North Artesian Avenue¹ to play a game of tag. Most of her friends were several years younger than her, including her brother. It was around 7 p.m. and starting to become dark. She had played at this park before and had been there several times. While playing tag, Cheneka ran to the slide to avoid being tagged by one of her friends. She went up the slide and when she descended, her foot became caught in a hole in the plastic, at the bottom of the slide, causing a fractured ankle

requiring surgery.

¶ 17 Cheneka testified that she did not observe the hole at the bottom of the slide before her foot became caught. She did not observe the crack from the top of the slide and identified a photograph of the slide. The photograph, which was introduced at the deposition, showed that the slide was curved, and the top of the slide did not line up with the bottom.

¶ 18 B. Artenia Bowman's Affidavit and Deposition

¶ 19 Artenia Bowman is Cheneka's mother. In an affidavit attached to plaintiff's response to the motion for summary judgment, Cheneka's mother alleges that there were no signs posted which designated the age group for the playground. Specifically, there were no signs stating that the play equipment was intended for those 2 to 12 years old² and that those 13 years or older were prohibited.

¶ 20 Cheneka's mother testified that, after the incident, the park had been renovated, and after the renovation, new signs were posted stating that the park was intended for children under the age of 12.

¶ 21 C. Juan Moreno's Deposition

¶ 22 Juan Moreno lives about 300 feet away from the park. Moreno testified in a discovery deposition that he goes to the park on a daily basis for a walk and some fresh air. He observed the damage to the slide for about a year and a half. He testified that the slide was “cracked really bad,” and it had a lot of water buildup at its bottom. Moreno had called 311 and was directed to CPD several times to report the broken slide's condition before Cheneka was injured. Moreno testified that he spoke to an unnamed CPD supervisor in person, about a year prior to the incident, to complain about the slide. He also has contacted Alderman Roberto Maldonado's office three times regarding the condition of the slide.

¶ 23 Moreno testified that he still observed children playing on the broken slide despite its condition. He also mentioned that he observed older children at the park.

¶ 24 D. Kathleen Oskandy's Deposition

¶ 25 Kathleen Oskandy, Alderman Maldonado's chief of staff, spoke to Cheneka's mother after the incident. Oskandy testified in a discovery deposition that she informed Cheneka's mother that Moreno had already filed complaints with the alderman's office about the slide before the incident. Oskandy reported the condition of the slide to CPD in July 2010 after being informed by Moreno.

¶ 26 Oskandy provided a computer printout of the complaints regarding the park maintained by her office. It was a timeline of Moreno's initial complaint, along with subsequent comments. The log showed a complaint made on July 29, 2010, about the slide's condition and additional comments when CPD was contacted. On August 24, 2010, the log stated: “slide boarded up and waiting for repair.” One week prior to the incident in April 2011, the log stated, “slide west of park still broken.” On April 25, 2011, the log mentioned that Cheneka was injured and “[CPD] replaced slide for repair.”

¶ 27 E. Gladys Ruiz's Deposition

¶ 28 Gladys Ruiz works in Alderman Maldonado's office answering calls and inputting data. Ruiz explained in a discovery deposition the procedure of how staff entered complaints in the office computer. On July 29, 2010,³ Moreno had called the office, and Ruiz logged his complaint about the slide. She made a note about the damaged slide in the computer log. Ruiz interpreted the log provided by Oskandy and explained that Oskandy was the one that closed out the file on August 27 when Oskandy contacted CPD.

¶ 29 F. Robert Rejman's Affidavit and Deposition

¶ 30 Robert Rejman is the director of development and planning for CPD. His duties include developing policies for park district...