Roland v. Langlois, No. 90-2271

• Citation: 945 F.2d 956
• Decision Date: 03 October 1991
• Docket Number: No. 90-2271
• Parties: 34 Fed. R. Evid. Serv. 207 Douglas ROLAND and Beverly Roland, Plaintiffs-Appellants, v. Albert Joseph LANGLOIS, Individually and as Agent for Astro Amusement Company, an Illinois corporation, Village of Libertyville, an Illinois Municipal corporation, and Civic Center Foundation of Libertyville, Incorporated, an Illinois corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 956

945 F.2d 956

34 Fed. R. Evid. Serv. 207

Douglas ROLAND and Beverly Roland, Plaintiffs-Appellants, v. Albert Joseph LANGLOIS, Individually and as Agent for Astro

Amusement Company, an Illinois corporation, Village of

Libertyville, an Illinois Municipal corporation, and Civic

Center Foundation of Libertyville, Incorporated, an Illinois

corporation, Defendants-Appellees.

No. 90-2271.

United States Court of Appeals, Seventh Circuit.

Argued May 28, 1991.

Decided Oct. 3, 1991.

Jack Toporek (argued), Chicago, Ill., for plaintiffs-appellants.

Nancy G. Lischer, Carlton D. Fisher (argued), James M. Forkins, Jr., Kendall Griffith, Hinshaw & Culbertson, Chicago, Ill., for defendants-appellees.

Before CUMMINGS, WOOD, Jr. and FLAUM, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Most of us associate carnival rides with fun and enjoyment. Indeed, this country's unending stream of outdoor festivals would lose a great deal of charm without the familiar ferris wheel or those contraptions that gyrate and spin in order to give riders a thrill. Douglas Roland and his wife would beg to differ, however. Their experience with one particular carnival ride ended in tragedy, and their lives are unlikely to ever be the same.

This tale begins happily enough. While serving two weeks of active duty as a reservist at Great Lakes Naval Station, Douglas and a companion he met at the base, Chief Charles Harvey, decided to spend some of their free time at an annual outdoor festival in Libertyville, Illinois. Attendance was high that evening and the festival grounds were crowded with people.

The adult carnival rides were located at the southern edge of a park and abutted Church Street, which acted as a midway. See Appendix A: Plaintiff's Exhibit No. 25, redrafted for publication. The "Spider" and the "Zipper" were set up east-to-west along the north side of the street with a "SuperPitch" between them. From their point of contact with the street, the rides extended back toward a library building.

The Zipper is, in plaintiffs' words, a "large dangerous machine" that is somewhat analogous to a large whirling chain saw. See Appendix B (photograph of Zipper taken at location other than Libertyville festival). Passengers sit in tubs that spin and travel around a boom while the boom itself makes 360-degree rotations. When horizontal, the boom is over twenty feet off the ground. When fully vertical, it extends fifty-five feet into the sky. The Spider is only sixteen feet high--much closer to the ground; its passengers ride in spinning buckets that attach to arms emanating from a common hub.

The operational areas of the Zipper and the Spider were enclosed by metal fencing. The Zipper's perimeter fence was then connected to the SuperPitch, which was in turn connected to the Spider's perimeter fence. This setup formed a barrier to patrons who otherwise might have walked between the rides.

The Zipper was anchored by a flatbed trailer that extended back onto the grass lawn in front of the library. It connected at that point to a green plastic fence that cordoned off and protected the library lawn from damage by the patrons. The east side of the library fence abutted a portion of the Spider's perimeter fencing. The two fences were not connected, creating a narrow "passageway." Still farther east, another fence extended south toward the Spider's perimeter fencing. It stopped three to four feet short of contact.

The end result was that, starting to the east of the Spider, patrons could travel west through the three-to-four-foot gap just described. From there, they could continue behind the Spider's perimeter fence until they reached the narrower passageway created by the near intersection of the Spider's perimeter fence and the library fence. If patrons traveled through this passageway, they would be standing in an area bordered by the Spider's perimeter fence on the east, the library fence on the north, the Zipper flatbed on the west, and the SuperPitch frame and Zipper perimeter fence on the south. There were no rides or concessions in this area; it was completely empty. No signs or barriers warned patrons that this was a restricted area.

At approximately 8:30 p.m. on June 26, 1986, Douglas and Harvey left the crowded midway and followed this "path" behind the Spider's perimeter fence, through the junction involving the library fence, into the empty area behind the Zipper. From there, the two men had a number of options. They could turn back. They could climb over the library fence and onto the lawn that it guarded. They could also attempt to climb over the Zipper flatbed. And last, they could enter the Zipper's operational area from the rear and cut through to the midway, where a queue of potential riders waited to board the Zipper.

For reasons that are not known and likely never will be known, Douglas and Harvey chose the last option. Like the perimeter fencing for the Spider, the Zipper's sectional perimeter fencing was made of metal and weighed about twenty to twenty-five pounds per section. If anchored and secured according to manufacturer's standards, the fencing would not have permitted easy entry into the operational area of the Zipper.

The fencing apparently was not set up according to manufacturer's standards. Albert Langlois, the Zipper's foreman and the person responsible for setting up the fencing, assumed that no one would approach the ride from the rear and had therefore failed to secure one of the rear sections. Langlois had also repeatedly moved that same section of fencing so as to go behind the Zipper and scavenge for any valuables that the ride had shaken from its passengers' pockets.

The manner in which Douglas entered the Zipper's operational area is, thus, unclear. Although Langlois, another carnival worker, and a patron maintain that the rear section of fence was closed (although apparently not secured), other deposition testimony suggests that Douglas walked through a gap in the fence. In any event, Douglas entered the Zipper's operational area and, after taking a few steps, stood directly underneath the "large dangerous machine." The Zipper, which was in full rotation, could not be brought to a quick halt; while moving toward a vertical position, it struck Douglas in the head.

Douglas's injuries were significant and required months of hospitalization. He currently suffers from organic brain syndrome, continues on medication to control his seizures, and, to this day, does not remember what happened that fated evening. In an effort to receive compensation for his injuries, as well as for his spouse's loss of consortium, Douglas and his wife sued Langlois, Langlois's employer, the sponsor and organizer of the festival, and the property owner who provided the security and crowd control. A central question below, and the central question on this appeal, is the nature of the duty that the defendants owed to Douglas.

The basic standards are straightforward and undisputed. ¹ Illinois law defines the duty of one who controls the premises by reference to the status of the entrant, who is either an "invitee" or a "trespasser." ² See Ward v. K Mart Corp., 136 Ill.2d 132, 141-42, 554 N.E.2d 223, 227, 143 Ill.Dec. 288, 292 (1990). An invitee is owed a duty of ordinary care, i.e., a duty "of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them." ILL.REV.STAT. ch. 80, para. 302. If the entrant is a trespasser, on the other hand, then the owner owes only a duty to refrain from wilful and wanton conduct. Miller v. General Motors Corp., 207 Ill.App.3d 148, 158, 565 N.E.2d 687, 692, 152 Ill.Dec. 154, 159 (4th Dist.1990), appeal denied, 139 Ill.2d 597, 575 N.E.2d 916, 159 Ill.Dec. 109 (1991). One exception, however, arises when the owner knew or reasonably should have anticipated the presence of a trespasser at the place of injury. If that exception applies, then the owner owes a duty of ordinary care. Id. at 158, 565 N.E.2d at 692-93, 152 Ill.Dec. at 159-60.

The defendants concede that Douglas was an invitee when he and Harvey first set foot on the festival grounds. That concession is not dispositive, however, because the rule in Illinois is not "Once an invitee, always an invitee." To the contrary, invitees can forfeit their protected status "by going to a portion of the premises to which the invitation does not extend." Avery v. Moews Seed Corn Co., 131 Ill.App.2d 842, 845, 268 N.E.2d 561, 564 (3d Dist.1971); see Orthmann v. Apple River Campground, Inc., 757 F.2d 909, 912 (7th Cir.1985) ("the mere fact that you invite people onto your property for a fee does not make them business invitees on the rest of the property"); Davis v. United States, 716 F.2d 418, 424 (7th Cir.1983); see also Soucie v. Drago Amusements Co., 145 Ill.App.3d 348, 351, 495 N.E.2d 997, 999, 99 Ill.Dec. 262, 264 (1st Dist.1986) (entrant's status determined "at the time of her injury"). ³ That forfeiture, claim the defendants, is what occurred here.

The district court agreed and granted partial summary judgment declaring that Douglas was a trespasser as a matter of law. The jury was instructed only as to the duty owed to trespassers and thereafter returned a verdict in favor of all defendants. On appeal, the Rolands do not take issue with the instructions describing the general duty owed to a trespasser and the applicable exception to that rule. Nor do they quibble with the strength of the verdict that those instructions produced. Instead, their primary contention is that the question of whether Douglas was an invitee should have gone to the jury, too. They also claim error in the rejection of jury instructions concerning invitees.

We review de novo the district court's grant of partial summary judgment and apply the same standard as that employed by the district court. DeBruyne v. Equitable Life Assur. Soc'y, 920 F.2d 457, 463 (7th Cir.1990). As such, we will affirm the district...