Callaghan v. The Vill. Of Clarendon Hills
| Decision Date | 29 April 2010 |
| Docket Number | No. 2-09-0482.,2-09-0482. |
| Citation | 401 Ill.App.3d 287,929 N.E.2d 61,340 Ill.Dec. 757 |
| Parties | Karron CALLAGHAN, Plaintiff-Appellant,v.The VILLAGE OF CLARENDON HILLS and Clarendon Hills Park District, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
401 Ill.App.3d 287
929 N.E.2d 61
340 Ill.Dec. 757
Karron CALLAGHAN, Plaintiff-Appellant,
v.
The VILLAGE OF CLARENDON HILLS and Clarendon Hills Park District, Defendants-Appellees.
No. 2-09-0482.
Appellate Court of Illinois,
Second District.
April 29, 2010.
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Richard T. Ryan, Richard L. Jones, Ryan, Smolens & Jones, Mark F. Smolens, Law Office of Mark F. Smolens, Chicago, for Village of Clarendon Hills.
Edward F. Dutton, Park District Risk Management Agency, Wheaton, for Clarendon Hills Park District.
Presiding Justice ZENOFF delivered the opinion of the court:
Plaintiff, Karron Callaghan, appeals from the trial court's dismissal of her complaint against defendants, the Village of Clarendon Hills (Village) and Clarendon Hills Park District (Park District). The four-count complaint stemmed from plaintiff's fall on a public sidewalk and included allegations of negligence and willful and wanton conduct by each defendant. On defendants' motions brought pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2008)), the trial court dismissed the negligence counts. On defendants' motions brought under section 2-615 of the Code (735 ILCS 5/2-615 (West 2008)), it dismissed the counts alleging willful and wanton conduct. For the following reasons, we affirm.
Plaintiff alleged that on March 6, 2007, she was injured when she slipped and fell on ice and snow while walking on a public sidewalk. The sidewalk was located at approximately 451 Park Avenue in Clarendon Hills, near a public park within a residential area. Plaintiff fell in front of a fenced-in water tower.
On January 14, 2008, plaintiff filed a one-count complaint alleging negligence by the Village. She later amended the complaint to add a count of negligence against the Park District. On June 4, 2008, plaintiff filed a second amended, four-count complaint. Count I alleged negligence by the Village, and count II alleged willful and wanton conduct by the Village. Counts III and IV were brought against the Park District, alleging negligence and willful and wanton conduct, respectively. Generally, plaintiff alleged that she slipped and fell “upon an unnatural accumulation of ice and snow, which was caused by a
The Village and the Park District each filed a motion to dismiss pursuant to section 2-619.1 of the Code ( 735 ILCS 5/2-619.1 (West 2008) (providing for combined motions seeking relief under sections 2-615 and 2-619)). With respect to the negligence counts, in the section 2-619(a)(9) portions of their motions, defendants maintained that they were immune from suit in negligence pursuant to section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/3-106 (West 2008)), because the sidewalk on which plaintiff fell was recreational property. In the section 2-615 portions of their motions, defendants argued that plaintiff failed to state a cause of action for willful and wanton conduct because she made conclusory allegations unsupported by facts. Additionally, the Park District argued under section 2-615 that plaintiff failed to state a cause of action for negligence because she did not include sufficient factual allegations of its notice of the condition of the sidewalk, as required by section 3-102(a) of the Act (745 ILCS 10/3-102(a) (West 2008)).
On August 11, 2008, the trial court heard argument on defendants' motions to dismiss the second amended complaint. The second amended complaint and the motions included photographs of the area where plaintiff fell, the intergovernmental agreement (agreement) defendants entered into in October 2001 to jointly develop a storm water detention area into Park Avenue Park (park), the site development plan for the park, and an affidavit from Mr. John Hays, the director of public works for the Village. The trial court entered an order indicating that it would issue its ruling on the motions to dismiss on September 24, 2008.
Before the trial court ruled on the motions, on August 25, 2008, plaintiff filed a supplemental memo to clarify evidence. In it, plaintiff stated that the site development plan attached to the Village's motion to dismiss was illegible and that, because defendants had provided a computerized version of the plan on August 14, plaintiff was able to enlarge it and discover that the portion of the sidewalk on which she fell was part of lot 15. According to plaintiff, since the agreement's legal description of the park was “lot[s] 7 through 14, inclusive,” defendants could not claim immunity under section 3-106, because plaintiff was not injured on recreational property. In response, the Village filed a supplemental memo in support of its motion to dismiss, including a supplemental affidavit of Hays alleging that the sidewalk on lot 15 was part of the development of the park. The Park District filed a surreply in support of its motion to dismiss, based in part on Hays' supplemental affidavit.
On September 24, 2008, the trial court dismissed with prejudice counts I and III (negligence against each defendant), pursuant to section 3-106 of the Act. The trial court dismissed without prejudice counts II and IV (willful and wanton conduct against each defendant) for failure to state a cause of action and granted plaintiff leave to file an amended complaint to replead the willful-and-wanton-conduct counts.
Plaintiff filed a motion to reconsider, which the trial court denied on February 19, 2009. Plaintiff also filed her third amended complaint.1 The Village and the
Plaintiff argues that the trial court erred in (1) finding that section 3-106 of the Act barred her negligence claims in counts I and III, and (2) concluding that she failed to state a cause of action for willful and wanton conduct in counts II and IV. We address each in turn.
Section 2-619(a)(9) of the Code provides for involuntary dismissal of a claim, based on “affirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2008). A section 2-619 motion to dismiss accepts as true all well-pleaded facts and raises questions of law. Nettleton v. Stogsdill, 387 Ill.App.3d 743, 759, 326 Ill.Dec. 601, 899 N.E.2d 1252 (2008). Our review is de novo. Nettleton, 387 Ill.App.3d at 759, 326 Ill.Dec. 601, 899 N.E.2d 1252. We must determine whether a genuine issue of material fact should have precluded dismissal or, if not, whether dismissal was appropriate as a matter of law. Van Meter v. Darien Park District, 207 Ill.2d 359, 377-78, 278 Ill.Dec. 555, 799 N.E.2d 273 (2003).
The affirmative matter asserted by defendants here is immunity under section 3-106 of the Act. “Immunity from suit under the Tort Immunity Act is an ‘affirmative matter’ properly raised under section 2-619(a)(9).” Van Meter, 207 Ill.2d at 377, 278 Ill.Dec. 555, 799 N.E.2d 273. The affirmative matter must be apparent on the face of the complaint or else the defendant must support the motion with affidavits. Van Meter, 207 Ill.2d at 377, 278 Ill.Dec. 555, 799 N.E.2d 273; Schlicher v. Board of Fire & Police Commissioners, 363 Ill.App.3d 869, 877, 300 Ill.Dec. 634, 845 N.E.2d 55 (2006). The defendant bears the burden of proof of the affirmative matter. Springfield Heating & Air Conditioning, Inc. v. 3947-55 King Drive At Oakwood, LLC, 387 Ill.App.3d 906, 909, 327 Ill.Dec. 245, 901 N.E.2d 978 (2009). If the defendant satisfies its initial burden of proof, the burden shifts to the plaintiff to show that “the defense is unfounded or requires the resolution of an essential element of material fact before it is proven.” Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 116, 189 Ill.Dec. 31, 619 N.E.2d 732 (1993). In order to refute evidentiary facts contained in the defendant's supporting affidavits, the plaintiff must provide a counteraffidavit. Kedzie & 103rd Currency Exchange, Inc., 156 Ill.2d at 116, 189 Ill.Dec. 31, 619 N.E.2d 732. If the plaintiff fails to provide a counteraffidavit to challenge the facts alleged in the defendant's supporting affidavits, the facts of the defendant's affidavits are deemed admitted. Zedella v. Gibson, 165 Ill.2d 181, 185, 209 Ill.Dec. 27, 650 N.E.2d 1000 (1995).
A local public entity had a duty at common law, now codified in section 3-102 of the Act, “to exercise ordinary care to maintain [its] property in a reasonably safe condition.” Bubb v. Springfield School District 186, 167 Ill.2d 372, 377, 212 Ill.Dec. 542, 657 N.E.2d 887 (1995); see 745 ILCS 10/3-102 (West 2008). Section
“Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.” (Emphasis added.) 745 ILCS 10/3-106 (West 2008).
The purposes of section 3-106 are to “prevent the diversion of public funds from their intended purpose to...
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