Coleman v. Ramada Hotel Operating Co.

• Decision Date: 20 May 1991
• Docket Number: No. 90-1223,90-1223
• Citation: 933 F.2d 470
• Parties: Peggy COLEMAN, Plaintiff-Appellant, v. RAMADA HOTEL OPERATING COMPANY, doing business as Lakelawn Lodge, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 470

933 F.2d 470

Peggy COLEMAN, Plaintiff-Appellant, v. RAMADA HOTEL OPERATING COMPANY, doing business as Lakelawn Lodge, Defendant-Appellee.

No. 90-1223.

United States Court of Appeals Seventh Circuit.

Argued Nov. 1, 1990.

Decided May 20, 1991.

Robert E. Gordon, Mitchell S. Lipkin, Gordon & Gordon, Chicago, Ill., for plaintiff-appellant.

John C. Kiely, Dennis M. Glynn, Thomas J. Keevers, Paul M. Hummel, Catherine E. Long, Karen C. Wallace, Steven O. Hamill, Keevers & Hittle, Chicago, Ill., for Lakelawn Lodge, defendant-appellee.

Before BAUER, Chief Judge, CUDAHY and COFFEY, Circuit Judges.

CUDAHY, Circuit Judge.

Boisterous rough and tumble sports have long been a source of picnic amusement. The three-legged race, the sack hop and the egg toss seldom fail to evoke hearty guffaws. Most of those who participate in such light-hearted antics escape unscathed, but Peggy Coleman was not so lucky. After fracturing her ankle and tearing a ligament during a company-sponsored recreational outing, Coleman filed this personal injury suit against the owner of the grounds where the unfortunate accident took place, Ramada Hotel Operating Company (Ramada). Coleman attributes her injuries to Ramada's alleged negligence in operating an obstacle course as part of the day's entertainment. The district court granted summary judgment in favor of Ramada because it found that Coleman voluntarily assumed the obvious risks inherent in the activity. We affirm.

I.

Every year, McDonald's Corporation (McDonald's) sponsors a recreational outing for its employees. Peggy Coleman was employed by McDonald's from May 1986 to February 1988. On July 17, 1987, while she was working for McDonald's, Coleman attended the annual company picnic which was held that year at Lakelawn Lodge in Delavan, Wisconsin, a resort owned by defendant Ramada. One of the events at the picnic--a "mini olympics"--involved a timed obstacle course. To mount a slide backwards was the first hurdle. Participants were instructed to clamber up the slippery slope of an ordinary playground slide and climb down the stairs on the back of the slide. The slide presented no latent danger. Coleman concedes that the slide was in good repair--it was stable and possessed firm handrails. The only risk, then, was that inherent in the reversal of its normal use.

Of her own volition, Coleman competed in this event. After observing her team member ascend the slide before her, Coleman mounted the chute portion of the slide without incident. Carefully grasping the handrails and treading one step at a time, Coleman descended the ladder portion of the slide. Despite her caution, however, Coleman slipped and fell from the second stair from the top, severely injuring her ankle.

Coleman brought suit against Ramada, charging Ramada with breach of its duty of reasonable care towards her in two distinct ways: first, by failing to warn her of the possibility of injury and, second, by failing to provide safe apparatus for the mini olympics. Ramada moved for summary judgment on both claims. To Coleman's first argument, Ramada responded that it was not obliged to warn of the glaringly obvious risk of a fall faced by anyone who climbs up the chute of a slide and descends by the ladder. As for Coleman's second claim, Ramada contended that Coleman's free and informed decision to mount the slide rendered her own conduct the sole proximate cause of her injury or, in the alternative, statutorily barred her from recovery because she was more than fifty percent contributorily negligent.

The district court granted summary judgment in favor of Ramada on both claims but based its decision upon slightly different grounds. The court agreed with Ramada that Illinois imposes no duty to warn of such open and obvious risks. The court relied, however, upon the doctrine of assumption of risk--not the closely-related affirmative defense of contributory negligence--to bar Coleman's second claim, reasoning that any element of negligence in Ramada's decision to include a backward slide in the obstacle course was nullified by Coleman's voluntary choice to engage in an inherently dangerous activity.

On appeal, Coleman challenges the district court's entry of summary judgment on the following grounds. First, she contests the district court's denial of her rather dilatory request for leave to amend her complaint, contending that she is entitled to amendment even at this stage in the proceedings. Second, she argues that Ramada should have issued a warning under the unique circumstances of this case because of the likelihood that excited participants speeding through the competitive obstacle course would fail to recognize the otherwise apparent danger of climbing a slide backwards. Third, she takes issue with the district court's sua sponte consideration of assumption of risk, emphasizing that Ramada raised only the affirmative defense of contributory negligence. Finally, she insists that the district court improperly applied assumption of risk to her because she was simply a business invitee with no explicit contractual link to defendant Ramada.

II.

We review the district court's entry of summary judgment de novo, drawing all reasonable inferences from the record in the light most favorable to the non-moving party. Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). No genuine issue of material fact exists "unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). "If the evidence is merely colorable ... or is not significantly probative ... summary judgment may be granted." Id. at 249-50, 106 S.Ct. at 2510-11.

As a preliminary matter, we note that neither party to this suit has argued here or in the district court for the application of Wisconsin law, despite some significant contacts with the state of Wisconsin. We therefore do not question the district court's conclusion that Illinois law governs this case. See D & G Stout, Inc. v. Bacardi Imports, Inc., 923 F.2d 566, 568 (7th Cir.1991). In the absence of any dispute over the choice of law, the district court properly applied Illinois law--the law of the forum in which it sits. See Gonzalez v. Volvo of Am. Corp., 752 F.2d 295, 299 (7th Cir.1985) (per curiam) ("Where parties fail to raise a possible conflict of substantive laws, the better rule, in our opinion, is that the substantive law of the forum controls.").

A. The Amended Complaint

Federal Rule of Civil Procedure 15(a) mandates that a court freely allow amendments to a complaint "when justice so requires." In an attempt to resurrect her case, at the close of discovery, more than one month after Ramada filed its summary judgment motion, Coleman sought leave to supplement her complaint with several additional allegations. But these additional allegations merely reiterate and embroider the claims Coleman already presented in her original complaint, adding little, if anything, of substance to her case. Although the federal rules generally favor a liberal amendment policy, justice does not demand that Coleman be given leave to append frivolous or repetitive allegations to her complaint at any stage in the proceedings. In light of Coleman's tardiness in requesting this amendment and the insubstantial character of the new allegations, the district court's decision denying Coleman leave to amend her complaint was not an abuse of its discretion.

B. The Duty to Warn

Illinois law imposes no duty to warn of open and obvious risks. See Cope v. Doe, 102 Ill.2d 278, 80 Ill.Dec. 40, 464 N.E.2d 1023 (1984) (no duty to warn seven-year-old boy who drowned in pond); Alop by Alop v. Edgewood Valley Community Ass'n, 154 Ill.App.3d 482, 107 Ill.Dec. 355, 507 N.E.2d 19 (1st Dist.1987) (no duty to guard against risk of child falling from slide onto asphalt surface). Citing the Restatement (Second) of Torts, several Illinois courts have concluded that even a child should reasonably be expected to appreciate certain obvious dangers, such as those posed by fire, bodies of water or lofty heights. See Cope, 102 Ill.2d at 287, 80 Ill.Dec. at 44, 464 N.E.2d at 1027 (citing Restatement (Second) of Torts Sec. 339 comment j, at 203); Alop, 154 Ill.App.3d at 486, 107 Ill.Dec. at 489, 507 N.E.2d at 22 (same). Illinois law is thus in harmony with the Restatement, which recommends that property owners generally not be compelled to take precautions against known or evident risks. See Restatement (Second) of Torts Sec. 343A comment e, at 219. ¹

Ramada was not obliged to post a warning notifying Coleman and other participants of the blatant risks posed by this obstacle course. The game presented no hidden dangers, for even Coleman concedes that the ordinary playground slide from which she fell was in perfectly good repair. The only risk Coleman did incur--the increased probability of a fall due to the reversal in the slide's use--should have been apparent to her from the outset. From the very time when she was instructed to clamber up the chute of the slide and climb down the ladder portion of the slide, Coleman understood what the first hurdle entailed. Under Illinois law, even a child is expected to comprehend the danger of falling from a slide or drowning in a pond. See Cope, 102 Ill.2d at 278, 80 Ill.Dec. at 40, 464 N.E.2d at 1023; Alop, 154 Ill.App.3d at 482, 107 Ill.Dec. at 355, 507 N.E.2d at 19. Given this standard, certainly an adult like Coleman should have perceived the danger of mounting a slide in a backwards manner, especially after she had observed her teammate perform the same task.

Coleman now argues, however, that the district court failed to consider the likelihood that excited participants rushing through the obstacle course would overlook this...