Bowman v. Chi. Park Dist., Corp.
| Decision Date | 27 June 2014 |
| Docket Number | No. 1-13-2122,1-13-2122 |
| Citation | 2014 IL App (1st) 132122 U |
| Court | United States Appellate Court of Illinois |
| Parties | ARTENIA BOWMAN, Individually and as Mother and Next Friend of CHENEKA ROSS, a Minor, Plaintiff-Appellant, v. CHICAGO PARK DISTRICT, a Municipal Corporation, Defendant-Appellee. |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of Cook County.
¶ 1 Held: When the Chicago Park District passes an ordinance that a park's equipment can only be used by children under the age of 12, they must place signs in the park and otherwise publish its restrictions for a child age 12 or older to not be an intended user of the equipment.
¶ 2 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, whenher 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.
¶ 3 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.
¶ 4 The trial court granted defendant's motion for summary judgment finding that 13-year old Cheneka had violated a Chicago Park District 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.
¶ 5 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 slidewas 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.
¶ 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 alleged 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 towards 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 Family Expense Act. (735 ILCS 65/15 (West 2010))
¶ 10 On January 13, 2013, defendant as noted filed a motion for summary judgment, claiming that: (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 had claimed that the danger at the bottom of the curved slide was open and obvious, that the 13-year old should not have used the slide because a reasonable child wouldhave avoided it. CPD had 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.
¶ 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 has 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.
¶ 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 aged two to 12 years old2, and that those aged thirteen years or older were prohibited.
¶ 20 Cheneka's mother went on CPD's website and found no information indicating the park's age designation. The website calls Park 399 "an active community park."
¶ 21 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.
¶ 23 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 build-up at its bottom. Moreno had called 311 and was directed to CPD several times to report the broken slide's condition before the Plaintiff was injured. Moreno testified that he spoke to an un-named 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.
¶ 24 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.
¶ 26 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.
¶ 27 Oskandy provided a computer print out 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, 20103 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."
¶ 29 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, 20104, 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...
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