Colella v. Lombard Park Dist.
| Decision Date | 28 September 2017 |
| Docket Number | No. 2-16-0847,2-16-0847 |
| Citation | 86 N.E.3d 1269,2017 IL App (2d) 160847 |
| Parties | Sarah COLELLA and Ignatius Colella, Plaintiffs-Appellants, v. The LOMBARD PARK DISTRICT and the Village of Lombard, Defendants (The Lombard Park District, Defendant-Appellee). |
| Court | United States Appellate Court of Illinois |
Richard L. Elsliger and Bradley C. Giglio, of Mevorah Law Offices LLC, of Bloomingdale, for appellants.
Edward F. Dutton, of Lisle, and Kathryn M. James, of Judge, James, Hoban & Fisher, LLC, of Park Ridge, for appellee.
¶ 1 Plaintiffs, Sarah and Ignatius Colella, filed a complaint against defendants, the Lombard Park District (Park District) and the Village of Lombard (Village), relating to an injury that Sarah sustained while she was walking on a Park District path. To be specific, Sarah's leg was impaled by a piece of rebar protruding from a railroad tie that was apparently dumped on the Park District property. Plaintiffs appeal the trial court's order granting the Park District's motion to dismiss plaintiffs' fourth amended complaint pursuant to section 2-619 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619 (West 2014) ). In granting the Park District's motion, the trial court ruled that the Park District was immune from liability pursuant to sections 3-106 and 3-107(b) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) ( 745 ILCS 10/3-106, 3-107(b) (West 2014)). We affirm.
¶ 3 We begin by summarizing the allegations contained in plaintiffs' third amended complaint. On April 29, 2013, Sarah was walking her dog along a "nature/walking path" in Westmore Woods, a park located within the Village and controlled by the Park District. During her walk, Sarah "tripped and fell and her leg was impaled by a large nail/spike protruding from a piece of lumber such as a railroad tie or landscape timber that should not have been on the nature path." Pictures in the record depicting Sarah's injury show a piece of rebar, approximately 18 inches long, piercing completely through Sarah's left calf, such that the rebar entered one side of her calf and exited on the other side.
¶ 4 Plaintiffs alleged that debris had been dumped on the grounds of the Westmore Woods property prior to a heavy rainstorm that occurred on April 17, 2013. The storm produced extensive flooding that caused the displacement of debris throughout the Westmore Woods property. Plaintiffs alleged that defendants had actual and constructive notice of the dumping and displacement of debris, as these conditions had been reported to Park District personnel and had been recorded on the Park District's daily work logs.
¶ 5 The third amended complaint contained six counts: three naming the Park District (counts I, III, and V) and three naming the Village (counts II, IV, and VI). Counts I and II alleged willful and wanton conduct; counts III and IV alleged that Ignatius had suffered a loss of consortium; and counts V and VI alleged ordinary negligence.
¶ 6 The Park District and the Village separately filed combined motions to dismiss plaintiffs' third amended complaint, pursuant to section 2-619.1 of the Code ( 735 ILCS 5/2-619.1 (West 2014) ). The Village argued that it owed no duty to plaintiffs, citing an intergovernmental agreement with the Park District establishing that the Park District was exclusively responsible for the management and maintenance of Westmore Woods. The trial court granted the Village's motion to dismiss counts II, IV, and VI with prejudice, finding that plaintiffs had failed to allege that the Village owed them a duty. Plaintiffs have not appealed the trial court's ruling with respect to the Village, and the Village is not a party to this appeal.
¶ 7 The Park District argued in its motion that it was entitled to a dismissal under section 2-615 of the Code ( 735 ILCS 5/2-615 (West 2014) ), maintaining that plaintiffs had failed to allege facts showing that it had actual or constructive notice of the presence of the specific piece of "spiked timber" that caused Sarah's injury. (For the sake of brevity, we will hereinafter refer to the railroad tie with the protruding rebar as the "spiked timber.") The Park District also argued that it was entitled to a dismissal under section 2-619 of the Code ( 735 ILCS 5/2-619 (West 2014) ), asserting that it was immune from liability under two sections of the Tort Immunity Act. The Park District first asserted that it was immune from liability for ordinary negligence pursuant to section 3-106 of the Tort Immunity Act ( 745 ILCS 10/3-106 (West 2014) ), because the spiked timber constituted a "condition" of public property intended or permitted to be used for recreational purposes. The Park District next asserted that, because the spiked timber also constituted a "condition" of a "hiking trail" within the meaning of section 3-107(b) of the Tort Immunity Act ( 745 ILCS 10/3-107(b) (West 2014)), it was immune from liability for willful and wanton conduct.
¶ 8 Attached to the Park District's motion was the affidavit of park superintendant Bill Sosnowski, who denied that there had been any reports of debris along the path where Sarah was injured. Sosnowski opined that the spiked timber had been dumped in Westwood Woods and had washed onto the path as a result of the recent flooding.
¶ 9 On August 3, 2015, following arguments, the trial court denied the Park District's motion, finding that plaintiffs' allegations were sufficient under section 2-615 of the Code to state the causes of action set forth in counts I (willful and wanton conduct), III (loss of consortium), and V (ordinary negligence). The trial court further found that it would be "premature" to grant the Park District's motion under section 2-619 of the Code, as the arguments pertaining to the Tort Immunity Act involved "fact-driven" issues.
¶ 10 The pleadings reflect that the judge who denied the Park District's motion to dismiss was administratively transferred to a different courtroom on or around September 14, 2015. On September 24, 2015, the Park District filed a motion requesting that the newly assigned judge reconsider the first judge's ruling. The motion focused specifically on the application of sections 3-106 and 3-107(b) of the Tort Immunity Act. Following a hearing, the newly assigned judge stated his disagreement with the first judge's ruling. The newly assigned judge believed that sections 3-106 and 3-107(b) both applied, and accordingly he entered an order granting the Park District's motion to reconsider. However, the newly assigned judge acknowledged that he had only recently been assigned to the case, and he commented that "fairness dictates I give [plaintiffs] an opportunity to see if [they] can accommodate what are new concerns from the bench." On that basis, plaintiffs were granted leave to file a fourth amended complaint.
¶ 11 Plaintiffs' fourth amended complaint, which was nearly identical to their third amended complaint, added an allegation that the Park District "[w]illfully and wantonly misused the nature/walking path of Westmore Woods by allowing the dumping of debris on [Park District] land despite repeated complaints to the [Park District] about said dumping of debris thereby allowing for the property to no longer be safe." Consistent with its argument during the hearing on its motion to reconsider, the Park District filed a motion to dismiss plaintiffs' fourth amended complaint, based solely on section 2-619 of the Code. The motion relied exclusively on sections 3-106 and 3-107(b) of the Tort Immunity Act.
¶ 12 On September 7, 2016, the trial court conducted a hearing on the Park District's motion to dismiss plaintiffs' fourth amended complaint. Following arguments, the trial court stated that its earlier conclusions remained unaffected by plaintiffs' additional allegation that the Park District "misused" the Westmore Woods property by "allowing the dumping of debris." Accordingly, the trial court granted the Park District's section 2-619 motion to dismiss plaintiffs' fourth amended complaint, with prejudice.
¶ 13 Plaintiffs filed a timely notice of appeal.
¶ 15 Our review here is confined to the trial court's order granting the Park District's motion to dismiss plaintiffs' fourth amended complaint pursuant to section 2-619 of the Code. The purpose of a section 2-619 motion to dismiss "is to dispose of issues of law and easily proved issues of fact at the outset of litigation." Van Meter v. Darien Park District, 207 Ill. 2d 359, 367, 278 Ill.Dec. 555, 799 N.E.2d 273 (2003). A section 2-619 motion admits the sufficiency of the complaint, but asserts an affirmative matter that defeats the claim. Bjork v. O'Meara, 2013 IL 114044, ¶ 21, 369 Ill.Dec. 313, 986 N.E.2d 626. Immunity under the Tort Immunity Act is an affirmative matter that is properly raised in a section 2-619 motion to dismiss. DeSmet v. County of Rock Island, 219 Ill. 2d 497, 504, 302 Ill.Dec. 466, 848 N.E.2d 1030 (2006). When ruling on a section 2-619 motion, a court must interpret all pleadings and supporting documents in the light most favorable to the nonmoving party. Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 352, 317 Ill.Dec. 703, 882 N.E.2d 583 (2008). The motion should be granted only if the plaintiff can prove no set of facts that would support a cause of action. Feltmeier v. Feltmeier, 207 Ill. 2d 263, 277-78, 278 Ill.Dec. 228, 798 N.E.2d 75 (2003). A section 2-619 dismissal is subject to de novo review. Van Meter, 207 Ill. 2d at 368, 278 Ill.Dec. 555, 799 N.E.2d 273.
¶ 16 Here, the trial court granted the Park District's section 2-619 motion on the basis of its ruling that the Park District was immune from liability for Sarah's injury pursuant to sections 3-106 and 3-107(b) of the Tort Immunity Act. These sections carve separate immunities from a local public entity's duty to exercise ordinary care to...
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