Friedman by Friedman v. Park Dist. of Highland Park

• Decision Date: 31 December 1986
• Docket Number: No. 2-85-1032,2-85-1032
• Citation: 151 Ill.App.3d 374,502 N.E.2d 826,104 Ill.Dec. 329
• Parties: , 104 Ill.Dec. 329 Jordana FRIEDMAN, a minor, by Eugene FRIEDMAN, her father and next friend, Plaintiff-Appellant, v. PARK DISTRICT OF HIGHLAND PARK, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 826

502 N.E.2d 826

151 Ill.App.3d 374, 104 Ill.Dec. 329

Jordana FRIEDMAN, a minor, by Eugene FRIEDMAN, her father and next friend, Plaintiff-Appellant, v. PARK DISTRICT OF HIGHLAND PARK, Defendant-Appellee.

No. 2-85-1032.

Appellate Court of Illinois,

Second District.

Dec. 31, 1986.

James J. DeSanto, P.C., Waukegan, for plaintiff-appellant.

Brydges, Riseborough, Morris, Franke & Miller, Daniel P. Field, Waukegan, for defendant-appellee.

Justice WOODWARD delivered the opinion of the court:

Plaintiff, Jordana Friedman, a minor, by Eugene Friedman, her father and next friend, appeals from a jury verdict for the defendant, Highland Park park district, finding no liability on the part of the defendant for plaintiff's personal injury and from the trial court's denial of plaintiff's post-trial motion for a new trial.

The incident in question occurred in February 1980 when the minor plaintiff, Jordana Friedman, was 8 years old. At the time this suit was filed plaintiff was 13 years old. The plaintiff was at the top of the Manor Park sledding hill, owned and maintained by the Highland Park park district, preparing to sled down the hill. She was seated on the front of the sled with her feet placed in front of her on the sled's frame. The plaintiff's sister, Fraeda, 10 years old at the time the incident occurred, positioned herself in a seated posture on the sled behind the plaintiff with her legs on either side of the plaintiff. Fraeda's feet were placed forward on the wooden steering mechanism of the sled.

It is not clear how they began their descent, but the sled angled across the hill in approximately a 45° deviation from a straight descent, heading toward the snow fence on the right side of the hill (south side) as one looks down the hill from the crest. The sled proceeded into the snow fence at the precise point where one of a series of metal fence support poles, securely driven into the ground, was placed. Plaintiff's position on the sled in relation to this pole was such that upon the sled impacting with the pole, plaintiff was thrown forward with her legs on either side of the pole. As a result of the impact, plaintiff suffered serious injury.

At trial, testimony was introduced regarding the maintenance of this hill as a sledding facility. Marco Santi, an employee of the park district since 1976, was the maintenance foreman at the park since 1980. He stated there were two maintenance crews at the Highland Park park district. His crew was responsible for the sledding hill the year prior to the year that the instant injury took place. The year of the accident at issue here, the other maintenance crew (the golf course crew) maintained the hill. Mr. Santi's crew is separate from the golf course maintenance crew. Santi testified to the procedure he followed in setting up the hill the year before the golf course crew assumed those duties.

The procedure Santi implemented was to erect a snow fence on both sides of the hill and secure it to a series of six-foot metal posts each driven two feet into the ground. Santi stated he placed bales of hay along the inside of the snow fence and inspected the condition of the bales each week, replacing damaged bales. Santi testified that the fence was put up for directional purposes; the hay bales were to prevent children from going into the woods for Santi did not consider the fence strong enough to stop a sled. Both parties stipulated to the cost of $2.50 for a bale of hay. It is not clear how many were used.

Santi related that prior to the first and only year (1979) that he maintained the hill, he was not aware of any fences or hay bales being placed on Manor Park hill. Further, there was no written policy on how to prepare the slope.

Constance Skibbe also testified regarding certain aspects of the hill and its maintenance. At the time of plaintiff's injury, Skibbe was superintendent of recreation of the Highland Park park district, but it was pointed out by both parties that Mr. Earl Hodgen was responsible for the park's sledding facilities and instruction of park personnel at those facilities. Hodgen did not testify.

Skibbe stated that she didn't know if the Manor Park sledding hill was specifically designed for sledding purposes or whether it was simply a natural part of the park's terrain. She testified that for the 12 years she had worked at the park, this particular hill was used for sledding with snow fences and hay bales installed along the sides supplied as a regular practice. However, when reminded of Santi's testimony, she confessed she was not certain that such fences and hay were utilized on the hill prior to 1978. Skibbe explained that no written policy regarding maintenance of sledding hills had been produced. She added that it was her belief that bales of hay were placed on both sides of this hill each year.

When asked on cross-examination whether if given the opportunity, she would have ordered hay bales placed on the right side (south side) of the hill, she answered that she may not have for two reasons. First, the south side of the hill is sloped in an uphill curve, is slightly higher than the north side, and gravity would serve to slow the progress of any sled proceeding to the south side of the hill. Further, Skibbe declared that the hay bales had a tendency to freeze after absorbing a certain amount of moisture and in themselves become a source of injury when sledders ran into them.

Skibbe acknowledged that children sit on sleds in various ways with varying degrees of control over the direction of their sled. She stated that she knew steel posts were used to secure the snow fences but that the fence was clearly visible to all those who used the hill for sledding, and that a sign was posted clearly indicating that sledding on that hill was unsupervised.

Although never having designed a sledding hill herself, she said she was familiar with nearly 50 sledding hills in the Chicago metropolitan area maintained by municipal park bodies. Skibbe noted that she had never seen a hill designed with a "funneling" effect to naturally direct sleds straight down the hill. She added there was no established practice in the park management field governing the use of fencing alongside sledding hills; some municipalities employed them, others did not. She was not familiar with any other park district that lined the fences with hay bales.

Plaintiff's expert, Dr. Alan Caskey, worked for some 14 years as a private consultant in the design and development of parks and recreational facilities. He had numerous criticisms of this sledding hill, only a few of which were relevant to the injury incurred by plaintiff.

Dr. Caskey felt the topography of the hill, i.e., undulations in the surface, and the lack of a distinct trough to channel sleds straight down the hill, could cause sleds and saucers to travel in various directions on the hill. Such a problem would increase the possibility of a sled or saucer impacting the fence on the south side of the hill. He stated that the type of sled used by plaintiff could be turned only in a wide arc and that plaintiff, as an 8-year-old, would have difficulty effecting a turn on the sled. He hypothesized that the cause of the plaintiff's injury was the lack of a protective cushion between sledders and the fence and, additionally, the topography of the hill. It was his opinion that a reasonably well qualified park recreational supervisor would have the knowledge and skill to foresee the hazards extant on the hill when the injury occurred.

Dr. Caskey based his conclusions upon photographs, depositions, interrogatories and a 30- to 45-minute visual inspection of the hill a week before the trial. He never viewed the hill when covered with snow nor while being used by sledders. Dr. Caskey explained that there are no national standards for the design of sledding hills nor the erection of protective barriers on the sides of such hills. In his field of expertise, hazard analysis, Dr. Caskey emphasized that "you try to remove the hazard completely; if, because of the design you cannot remove the hazard and you have to barricade it or pad it, you make sure the pad is sufficient."

Finally, testimony as to the condition of the hill and circumstances surrounding the injury on the date thereof was adduced from two of plaintiff's siblings who witnessed the accident.

Plaintiff's brother, Arie, confirmed there were snow fences on both sides of the hill, only the north side of which was lined with hay bales. He estimated that 10 or 15 other children were also sledding at the time of the accident. He did not specifically remember if it had been he or his brother that had pushed the plaintiff's sled to start it down the hill but he recalled that the sled immediately started down the hill at a 45° angle toward the south snow fence, striking the fence 20 to 30 feet down the hill. It was Arie's understanding that the sled could be steered to a minor degree.

Plaintiff's sister, Fraeda, who accompanied plaintiff on the ride that resulted in plaintiff's injury, stated that although her feet were on the steering mechanism, she did not know how to steer. In fact, she said she had never been down a hill before and had no idea how to control the sled. She continued that she was aware of the location of the fence and that nothing obscured her view of it. To begin their run down the hill, Fraeda felt she and plaintiff had shoved off themselves or had been pushed. She wasn't certain if there had been a sign posted indicating the hill was unsupervised.

The plaintiff also stated she did not know how to steer the sled. Plaintiff admitted she had used the sled many times prior to her injury and had been on Manor Park hill sledding once or twice previously. Plaintiff stated the fence was plainly visible prior to her injury. She did not think that the hill itself caused her to veer toward the fence, nor did the sled strike any object or bump...