Helms v. Chicago Park Dist.

• Decision Date: 14 February 1994
• Docket Number: No. 1-92-0066,1-92-0066
• Citation: 258 Ill.App.3d 675,630 N.E.2d 1016,196 Ill.Dec. 851
• Parties: , 196 Ill.Dec. 851 Cagney HELMS and Lisa Helms, Plaintiffs-Appellants, v. CHICAGO PARK DISTRICT, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1016

630 N.E.2d 1016

258 Ill.App.3d 675, 196 Ill.Dec. 851

Cagney HELMS and Lisa Helms, Plaintiffs-Appellants, v. CHICAGO PARK DISTRICT, Defendant-Appellee.

No. 1-92-0066.

Appellate Court of Illinois First District, First Division.

Feb. 14, 1994.

Gary S. Tucker, Chicago, for plaintiffs-appellants.

Gessler, Flynn, Fleischmann, Hughes & Socol, Ltd., Chicago (Terence E. Flynn, William P. Jones, and Steven Robert Verr, of counsel), for defendant-appellee.

Presiding Justice CAMPBELL delivered the opinion of the court:

Plaintiffs Cagney and Lisa Helms appeal an order of the circuit court of Cook County granting summary judgment to defendant Chicago Park District ("Park District") in a personal injury action. For the reasons that follow, we affirm.

The record on appeal indicates the following facts. During the day of November 6, 1984, Cagney used Ring Station Number Eight ("Ring Station"), part of an eighteen station exercise course known as the Perrier-Parcourse Fitness Circuit in Lincoln Park, Chicago, Illinois ("Fitness Circuit"). On that day, defendant was in possession and control of the park and equipment. The Ring Station consists of three wooden columns that support three horizontal steel bars set at different elevations. A pair of non-circular steel rings hang from chains attached to each steel bar; each pair of rings hang at a different elevation. Cagney Helms, while using the Ring Station, lost his grip on a pair of rings and fell to the asphalt surface underneath the Ring Station. Following this fall, Cagney was rendered quadriplegic.

Cagney Helms and his wife Lisa filed suit against the Park District and other defendants. The record indicates that plaintiffs have reached settlements with the other defendants named in the initial complaint. Cagney charged the Park District with ordinary negligence and willful and wanton misconduct. Lisa did the same in bringing her claim for loss of consortium. On December 29, 1987, the Park District moved for summary judgment.

The parties took a number of depositions in connection with the motion for summary judgment. In his deposition, Cagney Helms indicated he was 27 years old at the time of his injury. Cagney stated that he had an associate degree in Physical Education. According to Cagney, his training was such that it qualified him to be an assistant to a park district physical fitness instructor.

Cagney stated that he had used all of the stations of the Fitness Circuit prior to November 6, 1984. Cagney indicated that he had used the Ring Station approximately ten times in 1984 prior to November 6th of that year. Cagney stated that he had read the sign at the Ring Station before the accident and saw a picture that showed a person grabbing the rings and rotating his hips. Cagney stated that he understood this sign to demonstrate an exercise for the use of the rings. Cagney identified a photograph of the sign that was marked as an exhibit and included in the record. This exhibit does show a sign depicting a man grabbing a set of rings over his head and rotating. Below the picture, the sign states as follows:

"Grip rings of easy reach; keep feet together on ground beneath rings. Relax and hang from rings.

Move body in clockwise circle to your par. Recover. Repeat in counter-clockwise circle to your par."

Below these instructions, the sign shows a chart indicating a number of rotations for different fitness levels or "pars."

Cagney indicated that prior to November 6, 1984, he would use the rings to turn upside-down by pulling himself up and bringing his legs backward over his head and toward the ground behind him. Cagney stated that he learned to do this on his own. Cagney indicated that he intended to exercise his triceps in this manner. Cagney stated that this was different from the demonstration on the sign.

Cagney indicated that on November 6, 1984, he had packed a lunch to eat in the park before exercising. Cagney also indicated that he drank three or four cans of beer at the park approximately one and one-half hours prior to the accident. Cagney further indicated that he had another can of beer in his jacket pocket at the time of the accident.

Cagney indicated that he ate and drank beer with another person who was not present at the time of the accident. Cagney also indicated that he jogged and performed one hundred sit-ups before reaching the Ring Station. Cagney indicated that he had a radio that he placed on top of the aforementioned sign. According to Cagney, he then went over to the highest set of rings and stood underneath them. Cagney stated that he had to jump approximately six inches to reach these rings. Cagney indicated that in one motion, he pulled himself up and, with his arms still extended, brought his knees up to his chest and over his head when he slipped and fell to the asphalt. According to Cagney, his head was pointed toward the asphalt, with his chin curled toward his chest when he slipped. Cagney indicated that he could not move after the fall.

Cagney stated that the right-hand ring felt slippery that there seemed to be grease or lotion on that ring. Cagney stated that he looked at the rings before he used them. Cagney indicated that the rings, chains and bar did not appear damaged on that day.

Following a hearing on the matter, the trial court granted summary judgment in favor of the Park District. Plaintiffs now appeal.

I

Summary judgment is properly granted if the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Alop v. Edgewood Valley Community Association (1987), 154 Ill.App.3d 482, 484, 107 Ill.Dec. 355, 357, 507 N.E.2d 19, 21.) Although a plaintiff is not required to prove his or her case at the summary judgment stage, he or she must present some evidentiary facts to support the elements of the claim. Cozzi v. North Palos Elementary School District No. 117 (1992), 232 Ill.App.3d 379, 382, 173 Ill.Dec. 709, 711, 597 N.E.2d 683, 685.

II

Cagney alleges that the Park District was negligent and therefore must show: (1) a duty to conform to a certain standard of conduct; (2) a breach of that duty; (3) proximate cause; and (4) damages. (See Ferentchak v. Village of Frankfort (1985), 105 Ill.2d 474, 480, 86 Ill.Dec. 443, 446, 475 N.E.2d 822, 825.) Lisa's action for loss of consortium is based upon the theory of transferred negligence, whereby the defendant's duty to the injured spouse is transferred to the deprived spouse. (Casey v. Pohlman (1990), 198 Ill.App.3d 503, 509, 144 Ill.Dec. 702, 706, 555 N.E.2d 1221, 1225.) In this case, the trial court based its decision on Alop and Young v. Chicago Housing Authority (1987), 162 Ill.App.3d 53, 113 Ill.Dec. 794, 515 N.E.2d 779, which concern the duty of a landowner toward a child who enters upon the land and falls from playground equipment. This case involves an adult.

Nevertheless, the determination of whether a duty exists is a question of law. (Kirk v. Michael Reese Hospital and Medical Center (1987), 117 Ill.2d 507, 525, 111 Ill.Dec. 944, 953, 513 N.E.2d 387, 396.) A defendant is entitled to judgment when there is no duty owed to plaintiff as a matter of law. (Hootman v. Dixon (1984), 129 Ill.App.3d 645, 84 Ill.Dec. 828, 472 N.E.2d 1224.) Indeed, a plaintiff cannot recover for either ordinary negligence or willful and wanton misconduct unless the defendant has breached a duty owed to the plaintiff. (Cozzi, 232 Ill.App.3d at 383, 173 Ill.Dec. at 712, 597 N.E.2d at 686; Young, 162 Ill.App.3d at 55, 113 Ill.Dec. at 796-97, 515 N.E.2d at 781-82.) Thus, this court turns to consider whether the Park District owed plaintiffs a duty.

III

Section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act ("Tort Immunity Act") (Ill.Rev.Stat.1985, ch. 85, par. 3-102(a)) provides in part that the Park District

"has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom [the Park District] intended and permitted to use the property in a manner in which and at such times as it was reasonable foreseeable that it would be used * * *." (Ill.Rev.Stat.1985, ch. 85, par. 3-102(a).)

Thus, assuming only for the sake of analyzing the question of duty that the Tort Immunity Act otherwise fails to provide immunity (as the former question precedes the latter), none exists and the claim must be determined by normal rules of tort liability. See Clark v. City of Chicago (1980), 88 Ill.App.3d 760, 764, 43 Ill.Dec. 892, 896, 410 N.E.2d 1025, 1029.

The injury at issue here occurred after the effective date of the Premises Liability Act (Ill.Rev.Stat.1985, ch. 80, par. 301 et seq.). That statute provides that the liability of an owner or occupier to one who enters upon land for a recreational purpose is governed by a statute now known as the Recreational Use of Land and Water Areas Act ("RULWAA"). (See Ill.Rev.Stat.1985, ch. 80, par. 304; Ill.Rev.Stat.1989, ch. 70, par. 31.) The RULWAA generally relieves an owner or occupier of land of the duty to keep the premises safe for entry or use by any person for recreational purposes or to warn any such person of a dangerous condition on the land. Ill.Rev.Stat.1985, ch. 70, par. 33.

It must be noted that the definition of a "recreational purpose" was far narrower at the time of the injury here than the definition in the current version of the RULWAA. (Compare Ill.Rev.Stat.1985, ch. 70, par. 32 with Ill.Rev.Stat.1989, ch. 70 par. 32.) However, this court does not need to decide whether Cagney's activities in this case fell within the scope of the old RULWAA. Even if Cagney entered Lincoln Park for a "recreational purpose" as defined by the old RULWAA, that statute would not apply to plaintiffs' claims for willful and wanton misconduct (Ill.Rev.Stat.1985, ch. 70, par. 36),...