Dunbar v. Latting

• Decision Date: 14 September 1993
• Docket Number: Nos. 3-92-0940,3-92-0961,s. 3-92-0940
• Parties: , 190 Ill.Dec. 363 Teresa DUNBAR, Plaintiff-Appellant, v. Thryll LATTING, individually and d/b/a Latting Rodeo Productions, and Latting Rodeo Productions, Inc., individually, et al., Defendants-Appellees. Jimmy CUNNINGHAM and Lucille Cunningham, Plaintiffs-Appellants, v. VILLAGE OF HOPKINS PARK, Thryll Latting, individually and d/b/a Latting Rodeo Productions, individually, and Pembroke Rough Riders, an unincorporated association, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 232

621 N.E.2d 232

250 Ill.App.3d 786, 190 Ill.Dec. 363

Teresa DUNBAR, Plaintiff-Appellant, v. Thryll LATTING, individually and d/b/a Latting Rodeo

Productions, and Latting Rodeo Productions, Inc.,

individually, et al., Defendants-Appellees.

Jimmy CUNNINGHAM and Lucille Cunningham, Plaintiffs-Appellants, v. VILLAGE OF HOPKINS PARK, Thryll Latting, individually and d/b/a Latting Rodeo Productions, individually, and Pembroke Rough Riders, an unincorporated

association, Defendants-Appellees.

Nos. 3-92-0940, 3-92-0961.

Appellate Court of Illinois,

Third District.

Sept. 14, 1993.

Fred I. Benjamin, Benjamin & Shapiro, Ltd., Paul R. Kesselman (argued) Benjamin & Shapiro, Michael P. Hendrickson (argued), Copeland, Finn & Fieri, Chicago, for Teresa Dunbar.

Karen L. Kendall, Heyl, Royster, Voelker & Allen, Peoria, Michael E. Raub (argued), Heyl, Royster, Voelker & Allen, Urbana, IL, Brad A. Elward, Heyl, Royster, Voelker & Allen, Peoria, for Thyrll Latting.

William E. Hoversen, Jr. (argued), Modesto, Reynolds & McDermott, Chicago, for Village of Hopkins Park.

Presiding Justice McCUSKEY delivered the opinion of the court:

Plaintiffs, Jimmy and Lucille Cunningham, filed a complaint alleging that they were injured by defendants' negligence when bleachers they were sitting on collapsed at a rodeo. Plaintiff, Teresa Dunbar, also filed a complaint alleging that she was injured in the same bleacher incident. The cases were consolidated by the trial court, and we will refer to the Cunninghams and Dunbar collectively as plaintiffs. Plaintiffs appeal from an order which granted summary judgment in favor of two of the defendants, Thryll Latting d/b/a Latting Rodeo Productions (Latting Rodeo) and the Village of Hopkins Park (Village).

Plaintiffs raise two issues on appeal: (1) whether the trial court erred in granting summary judgment in favor of the Village because, as it owned the park where the rodeo was held, it had a duty to maintain the property in a reasonably safe condition; and (2) whether the trial court erred in granting summary judgment in favor of Latting Rodeo because, as the producer of the rodeo, it had a duty to provide safe seating for spectators at the rodeo. After considering the plaintiffs' arguments, we affirm the trial court based upon our review of the record.

On May 24, 1987, plaintiffs attended a rodeo which was held in a park located in the Village. The bleachers they were sitting on collapsed, and plaintiffs suffered injuries. Plaintiffs filed complaints against Pembroke Rough Riders Rodeo (Pembroke), Latting Rodeo, and the Village. The Cunninghams also named Pembroke Township as a defendant. On March 9, 1989, an order was entered in the Dunbar case which stated that Pembroke was held in default. Later, on October 16, 1990, the trial court consolidated the two cases. On December 19, 1991, the Cunninghams voluntarily dismissed Pembroke Township from the action with prejudice. We note that neither Pembroke nor Pembroke Township are parties to this appeal.

Both the Village and Latting Rodeo filed motions for summary judgment. The Village contended that it was entitled to summary judgment because it did not own, manage or maintain the bleachers in question. In its motion, Latting Rodeo contended that it was involved in the rodeo only to the extent of its contractual obligations with Pembroke. Under the terms of this agreement, Latting Rodeo had no responsibility for the design, construction and maintenance of the bleachers.

Plaintiffs filed responses to the motions for summary judgment. The Cunninghams noted that the Village had liability insurance at the time of their injuries. They thus contended that the protections of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill.Rev.Stat.1991, ch. 85, par. 1-101 et seq.) did not apply. The Village filed a reply in which it argued that the Tort Immunity Act had been amended and therefore did apply even though the Village had liability insurance. It also argued that, pursuant to section 3-106 of the Tort Immunity Act (Ill.Rev.Stat.1991, ch. 85, par. 3-106), plaintiffs had to plead and prove that the proximate cause of their injuries was the Village's willful and wanton conduct. The Village contended that there was no evidence of willful and wanton conduct. Subsequently, on July 9, 1992, the Village filed an amended answer to Dunbar's first amended complaint and an amended answer to the Cunninghams' complaint. In both amended answers, the Village alleged that, under the Tort Immunity Act, it could not be liable for negligent conduct.

The parties filed various affidavits, documents and deposition excerpts in support of and in opposition to the motions for summary judgment. The facts showed that, since approximately 1978, a rodeo was held on the Village's property each Memorial Day weekend. The park where the rodeo was held was known as "Rodeo Park." In one area of the park there was some playground equipment and a ball field. There were no permanent structures in the area where the rodeo was held. The bleachers, corrals and fences needed for the rodeo were erected and dismantled each year before and after the rodeo. This particular year, the wooden bleachers which were used by spectators were constructed and installed by Griffin Lumber Company (Griffin), a local company located in the Village. Plaintiffs did not name Griffin as a defendant in their complaints.

In 1987 and prior years, the Village entered into an agreement with Pembroke. Pembroke was essentially responsible for putting on the rodeo. Under the agreement, Pembroke agreed: (1) to carry liability insurance; (2) to obtain a liquor license; (3) to pay prevailing wages for security and use Village auxiliary police; (4) to be completely responsible for cleaning up the park after the rodeo; and (5) to make a donation of $400 to the Village's "Emergency Assistance Fund." However, Pembroke did not have liability insurance coverage at the time plaintiffs were injured. The Village's mayor testified in his deposition that the Village's only responsibility under the agreement was to provide traffic control. The Village did not require Pembroke to provide proof that it had liability insurance coverage. Also, the Village did not inspect the bleachers or any of the other structures. Prior to the plaintiffs' injury in 1987, no one had been injured at the annual rodeo.

In 1987, Pembroke also entered into an agreement with Latting Rodeo. Under the terms of this agreement, Latting Rodeo was to provide a portable arena including a fence and bucking chutes, all personnel including cowboys and an announcer, and all animals and handlers to be used in the rodeo. Latting Rodeo was paid a fee for these services which was not related to ticket sales. Pembroke was responsible for selling the tickets to the rodeo. Latting Rodeo had nothing to do with the construction of the bleachers. The evidence presented showed that the animals and personnel provided by Latting Rodeo did not come into contact with the bleachers and did not cause the collapse of the bleachers.

A hearing was held regarding the summary judgment motions, and the Village argued that it was entitled to the protections provided by the Tort Immunity Act "in the use of land for recreational purposes." An order was later entered on November 19, 1992. The court granted both motions for summary judgment. The court found that neither Latting Rodeo nor the Village had control over the bleachers which allegedly collapsed so that neither of these defendants owed plaintiffs a duty of care. The court's order stated that no just cause existed to delay enforcement or appeal of the order pursuant to Supreme Court Rule 304(a) (134 Ill.2d R. 304(a)). Thereafter, plaintiffs filed timely notices of appeal.

On appeal, plaintiffs argue that summary judgment should not have been granted. They contend that the facts presented to the trial court were adequate to show that both the Village and Latting Rodeo had a duty to plaintiffs.

Summary judgment is a drastic means of disposing of litigation and should only be allowed when the right of the moving party is clear and free from doubt. (Mitchell v. Jewel Food Stores (1990), 142 Ill.2d 152, 165, 154 Ill.Dec. 606, 611, 568 N.E.2d 827, 832; Purtill v. Hess (1986), 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 309, 489 N.E.2d 867, 871.) "The sole function of the court reviewing the trial court's entry of summary judgment is to determine whether the lower court correctly ruled that no genuine issue of material fact had been raised, and if none was raised, whether judgment was correctly entered as a matter of law." Lavat v. Fruin Colnon Corp. (1992), 232 Ill.App.3d 1013, 1023, 173 Ill.Dec. 914, 920, 597 N.E.2d 888, 894.

In this case, plaintiffs have alleged a cause of action based upon negligence. To properly state a cause of action for negligence, a plaintiff must establish that the defendant owed a duty of care, a breach of that duty, and an injury proximately caused by the breach. (Wojdyla v. City of Park Ridge (1992), 148 Ill.2d 417, 421, 170 Ill.Dec. 418, 420, 592 N.E.2d 1098, 1100.) Whether or not a duty of care exists is a question of law to be determined by the court and thus may be determined on a motion for summary judgment. (Wojdyla, 148 Ill.2d at 421, 170 Ill.Dec. at 420, 592 N.E.2d at 1100.) On appeal, a trial court's determination whether a duty exists is subject to de novo review. Wolowinski v. City of Chicago (1992), 238 Ill.App.3d 639, 641, 179 Ill.Dec. 441, 442, 606 N.E.2d 273, 274.

Here, there is no real dispute regarding the facts. The only issue is whether, under the facts presented to the trial court, either the Village or Latting Rodeo had a duty to plaintiffs. We find that this issue is properly subject to de novo review.

Plaintiffs first argue that summary judgment should not have been granted for the Village. They argue that there is no dispute that the...