Cadena v. Chicago Fireworks Mfg. Co.

• Decision Date: 30 June 1998
• Docket Number: No. 1-95-3531,1-95-3531
• Citation: 297 Ill.App.3d 945,232 Ill.Dec. 60,697 N.E.2d 802
• Parties: , 232 Ill.Dec. 60 Manuel Anthony CADENA, a minor by his mother and next friend, Areli MORENO; Larisa Cadena, a minor, by her mother and next friend, Delia Garcia; Andres Cadena, a minor, by his mother and next friend, Delia Garcia; and Marcella Garcia, by her mother and next friend, Delia Garcia, Plaintiffs-Appellants, v. CHICAGO FIREWORKS MANUFACTURING COMPANY, a corporation, Defendant (City of Chicago Heights, Defendant-Appellee; Dale Baikauskas, individually and Dale Baikauskas, as father and next friend of Christopher Baikauskas, a minor, Plaintiffs-Appellants, v. Chicago Fireworks Manufacturing Company, a corporation, Defendant, and City of Chicago Heights, a municipal corporation, Defendant-Appellee).
• Court: United States Appellate Court of Illinois

Page 802

697 N.E.2d 802

297 Ill.App.3d 945, 232 Ill.Dec. 60

Manuel Anthony CADENA, a minor by his mother and next friend, Areli MORENO; Larisa Cadena, a minor, by her mother and next friend, Delia Garcia; Andres Cadena, a minor, by his mother and next friend, Delia Garcia; and Marcella Garcia, by her mother and next friend, Delia Garcia Plaintiffs-Appellants, v. CHICAGO FIREWORKS MANUFACTURING COMPANY, a corporation Defendant (City of Chicago Heights, Defendant-Appellee; Dale Baikauskas, individually and Dale Baikauskas, as father and next friend of Christopher Baikauskas, a minor Plaintiffs-Appellants, v. Chicago Fireworks Manufacturing Company, a corporation, Defendant, and City of Chicago Heights, a municipal corporation, Defendant-Appellee).

No. 1-95-3531.

Appellate Court of Illinois First District, Third Division.

June 30, 1998.

Rehearing Denied Aug. 3, 1998.

Clifford Law Offices (Robert A. Clifford, Charles E. Tannen, Robert P. Sheridan, of counsel), Chicago; Karline & Fleisher, Chicago, for Plaintiffs-Appellants.

Kralovec & Marquard, Cht. (Nancy J. Arnold, David T. Nani, of counsel), Chicago, for Defendant-Appellee.

Justice BURKE delivered the opinion of the court:

Plaintiffs Manual Anthony Cadena, Larisa Cadena, Andres Cadena, and Marcella Garcia (Cadenas) and plaintiffs Dale Baikauskas and Christopher Baikauskas (Baikauskases) appeal from an order of the circuit court granting summary judgment in favor of defendant City of Chicago Heights (City) pursuant to sections 4-102 and 5-102 of the Illinois Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/4-102, 5-102 (West 1992)) in the Cadenas' and Baikauskases' actions against it based upon claims of negligence, wilful and wanton conduct, res ipsa loquitur, and strict liability under the ultrahazardous activity doctrine. On appeal, plaintiffs contend that the activities undertaken by the City during a Fourth of July fireworks display did not constitute police or fire protection services under sections 4-102 and 5-102, respectively, of the Tort Immunity Act and, therefore, the City was not immune from liability, and the City was engaged in an ultrahazardous activity in displaying fireworks, thereby also precluding any immunity under the Tort Immunity Act. For the reasons set forth below, we affirm.

On July 3, 1991, Chicago Fireworks Manufacturing Company, who is not a party to this appeal, conducted a Fourth of July fireworks display at Bloom Township High School in the City of Chicago Heights. The City's administrator, Enrico Doggett (Doggett), was in charge of coordinating all activities surrounding the fireworks display. Chicago Fireworks was responsible for putting on the display on July 3, 1991, and had been responsible for the display from 1976 to 1992. Doggett had been involved in the City's Fourth of July fireworks event in his capacity as the City's administrator since 1975. Doggett's duties included ensuring that, because of the large crowds estimated at between 12,000 and 15,000, that the police were on the site for security and fire department personnel and emergency vehicles were on the site in case of an accident. Doggett was also in charge of overseeing food vendors, a petting zoo, rides for children in attendance, and entertainers. Doggett coordinated his activities with Joseph Piunti (Piunti), the chief of the City's fire department, Larry Heusman (Heusman), the chief of the paid-on-call division of the fire department, and the assistant chief of the police department. Doggett was further responsible for ensuring that the traffic department, which was a division of the police department, had barricades on the site. The barricades were set up by members of the paid-on-call division of the fire department. The procedures for setting up the fireworks display and the barricades had been essentially the same since Doggett began as the City's administrator in 1975, and "everyone knew where the barricades went, * * * how it was supposed to be set up." According to Doggett, he was unaware of the procedures set out in the "National Fire Protection Association" safety guidelines, but assumed that either the fire protection officer or assistant chief of the fire department would have told him if there were any codes which had to be followed. On July 3, 1991, the "Fire Chief" wanted the western border of the barricades moved farther away from the ignition site of the fireworks display and Doggett agreed to the change.

Doggett also stated that after an accident during the 1975 fireworks display, which was held at the Bloom Township High School football field, the display was moved in 1976 to a large field at the high school where the display in 1991 was subsequently held. A perimeter was also established in 1976 and the perimeter remained basically the same from then on, with minor variations that were "sometimes made by * * * [the owner of Chicago Fireworks], sometimes by [Doggett], sometimes by the fire chief." Neither Heusman nor Piunti were aware of any codes or regulations controlling the distance the barricades were to be placed from the ignition site of the fireworks display in 1991.

On July 3, 1991, it rained at approximately 6 p.m. and, while it was raining, workers from Chicago Fireworks placed tarps over the fireworks. During the fireworks display, one of the fireworks misfired and landed in the crowd which had gathered to view the display, injuring the Cadenas and Baikauskases. On July 9, the Cadenas filed a complaint against Chicago Fireworks, alleging that it was negligent based on Chicago Fireworks' act of firing fireworks in such a manner as to cause the fireworks to explode near the spectators, failure to properly protect the spectators, and failure to warn the spectators of the danger that portions of the fireworks would fall into the spectators.

On December 30, 1991, the Baikauskases filed a complaint against Chicago Fireworks and the City. Count I of the complaint alleged that Chicago Fireworks was negligent in permitting the fireworks to explode within the crowd of spectators, failing to adequately protect the spectators, and permitting the fireworks to be ignited in an unsafe condition; counts II and III alleged that the City was negligent and acted in a wilful and wanton manner in designating a spectator viewing area too close to the point of ignition of the fireworks display and in placing barricades too close to the ignition area of the fireworks display.

On February 6, 1992, the Cadenas filed a second amended complaint, adding the City as a defendant, and alleging, in count I, that the City and Chicago Fireworks were negligent in causing the fireworks to explode in the vicinity of the spectators, failing to protect the spectators from the ignited portions of the fireworks, failing to warn the spectators of the danger, permitting the fireworks to be ignited when wet, placing the barricades too close to the ignition area of the fireworks, and designating a spectator viewing area too close to the ignition area of the fireworks. Count II alleged that the City acted in a wilful and wanton manner with a reckless disregard for the safety of the spectators in designating a spectator viewing area too close to the ignition area of the fireworks, placing barricades too close to the ignition area of the fireworks, failing to warn spectators that ignited portions of the fireworks would or could fall into the spectator area and failing to properly protect the spectators from ignited portions of the fireworks. Count III alleged that the City and Chicago Fireworks were negligent and liable under the Family Expense Act for the same reasons as stated in count II. Count IV and V alleged that Chicago Fireworks was liable under strict liability and products liability, respectively, in using an unreasonably dangerous and defective firework. Count VI alleged that the City and Chicago Fireworks were negligent under a theory of res ipsa loquitur for the same reasons as stated in counts II and III. The remaining counts of the second amended complaint, VII through XXII, repeated counts I through VI for each individual Cadena plaintiff.

On February 11, 1992, the Baikauskases filed a motion to consolidate their case with the Cadenas' case, which the trial court granted. The City subsequently filed a motion to dismiss count II of the Baikauskases' complaint alleging negligence, and a motion to dismiss counts I, III, VI, VII, IX, XII, XIII, XIV, XVII, XVIII, XIX, and XXII of the Cadenas' second amended complaint pursuant to section 2-615 of the Civil Practice Act (Act) (735 ILCS 5/2-615 (West 1992)), arguing that it was immune from both the Baikauskases' and Cadenas' negligence claims pursuant to sections 3-106, 3-108 and 3-109 of the Tort Immunity Act (745 ILCS 10/3-106, 3-108, 3-109 (West 1992)), which provided immunity for injuries sustained on public property used for recreational purposes, failure to supervise activity of use of public property, and injuries sustained by any person who participated in a hazardous recreational activity, respectively.

In response to the City's motion to dismiss count II of their complaint, the Baikauskases argued that because the City was involved in a nongovernmental function when it oversaw the fireworks display, it was not protected by the Tort Immunity Act. The Baikauskases further argued that because the City was engaged in an ultrahazardous activity in sponsoring the fireworks, it was strictly liable for any injuries caused by that activity.

In the City's reply to the Baikauskases' response to its motion to dismiss count II of their complaint, it argued that any distinction between governmental and nongovernmental activities was irrelevant for purposes of the Tort Immunity Act. The City also argued that the Baikauskases' complaint failed to allege that the City was liable under an "ultrahazardous activity" theory; rather, their complaint...