Straub v. City of Mt. Olive
| Decision Date | 28 January 1993 |
| Docket Number | No. 4-92-0622,4-92-0622 |
| Citation | 607 N.E.2d 672,240 Ill.App.3d 967 |
| Parties | , 180 Ill.Dec. 603 Violet STRAUB, Plaintiff-Appellant, v. The CITY OF MT. OLIVE, Betty Neilson and Eleanore Miller, d/b/a Mother Jones Jubilee Committee, and Lutheran Brotherhood, William Vogt, individually, and Jim Brinkman, individually, Defendants-Appellees, and Brian Robeza, individually, Defendant. |
| Court | United States Appellate Court of Illinois |
Peter C. Drummond, Staunton, for Violet Straub.
James C. Cook, John E. Sabo, Walker and Williams, P.C., Belleville, for City of Mt. Olive and William Vogt.
Robert E. Gillespie, John E. Nolan, Hinshaw & Culbertson, Springfield, for Lutheran Broth. and Brinkman.
Andy Scharf, Ron Scharf, Litchfield, for Neilson/Miller d/b/a Mother Jones Jubilee Committee.
Plaintiff Violet Straub appeals from the Macoupin County circuit court's dismissal of her fourth-amended complaint which alleged, based on a theory of negligence, the following defendants were liable for injuries she sustained: the City of Mt. Olive (City); William Vogt, Mt. Olive park board president; the Lutheran Brotherhood, and its agent Jim Brinkman; and Betty Neilson and Eleanore Miller, members of the Mother Jones Jubilee Committee (Jubilee Committee). Her complaint also included counts based on willful and wanton misconduct against the City, Vogt, Brinkman, the Lutheran Brotherhood, a respondeat superior claim against the City for Vogt's alleged willful and wanton misconduct, and against the Lutheran Brotherhood for Brinkman's alleged willful and wanton misconduct.
The trial judge concluded defendants were immune from liability for the negligence claims based on section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill.Rev.Stat.1989, ch. 85, par. 3-106). He also dismissed the counts based on defendants' willful and wanton misconduct, concluding plaintiff failed to and would be unable to allege facts to support these claims. Plaintiff argues the trial judge's dismissal of her claims was error. We affirm the trial judge's dismissal of claims against each defendant except the count against the City based on willful and wanton misconduct.
Plaintiff alleges she was injured in Mt. Olive Park in June 1990 when she tripped over a wire used to straighten and support a young tree in the park. When the injury occurred, a Mother Jones Jubilee Celebration (Jubilee Celebration) was taking place in the City. The celebration was organized by the City and Betty Neilson and Eleanore Miller, Jubilee Committee members.
Before the celebration, the Lutheran Brotherhood, through its agent, defendant Jim Brinkman, and the City, through William Vogt, the park board president, planted trees in the Mt. Olive City Park and secured them by extending unmarked baling wire from the trees to stakes buried in the ground.
The City was allegedly liable for plaintiff's injury because it owned and operated the park and invited members of the public generally, including plaintiff, to visit the Jubilee Celebration. The celebration was sponsored by the Jubilee Committee, consisting of defendants Neilson and Miller. The Lutheran Brotherhood, through Brinkman, donated the trees and baling wire and planted the trees with Vogt's assistance. Defendant Brian Robeza, who is not part of this appeal, was allegedly an independent contractor hired by the City to cut and maintain the grass at the park. Robeza allegedly cut the park grass in a manner that concealed the guide wires and stakes from members of the general public.
Plaintiff's basis for her negligence claims included the following factors: (1) defendants installed guide wires which were not visible to the general public exercising ordinary care; (2) although the wires were below eye level, defendants failed to mark them to make them reasonably safe; (3) defendants failed to warn visiting senior citizens, whom they knew would be frequenting the area, by marking the guide wires or erecting a barricade; and (4) because defendants used rusted wire or wire which was prone to rust, the wire was less visible to a person using ordinary care and defendants failed to provide a reasonably safe environment free from hazards pursuant to section 3-102 of the Act (Ill.Rev.Stat.1989, ch. 85, par. 3-102). Plaintiff's counts included the allegation defendants affirmatively created a condition that they knew about before her injury occurred and which was not reasonably safe. She also alleged defendants actively promoted the public's attendance to the park activities, exposing numerous people to the hazard.
Plaintiff alleged willful and wanton misconduct on the part of the City occurred because: (1) the City showed a conscious disregard or utter indifference for the safety of others and it knew a danger existed in the Mt. Olive City Park before the general public was invited to the festivities and the City failed to abate the danger; (2) individuals had brought a dangerous situation to the defendant's attention and the City did not abate it; (3) other individuals had tripped or fallen on the wires and although defendants knew of such occurrences, defendants did nothing to remedy the problem; (4) defendants knew the wires were difficult to see, rusted, and posed a particular hazard to elderly individuals, but did nothing to remedy the hazard; (5) defendants planted and failed to properly secure or mark the trees despite their knowledge the wires posed a danger to the public; (6) defendants failed to properly plant, supervise or mark the trees despite knowing the trees presented a danger to the public; and (7) defendants knew or should have known the trees presented a danger to the public.
Plaintiff's second count against the City for alleged willful and wanton misconduct was based on Brinkman's actions under a theory of respondeat superior. Her counts based on willful and wanton misconduct against Brinkman and against Vogt included the following allegations: (1) defendants chose wire which they knew posed a danger to the public; (2) defendants attached the wire to the trees in a way which posed a danger to the public; (3) defendants knew the Jubilee Celebration would attract the public, including elderly people; (4) defendants knowingly and intentionally selected wire which could rust, making it less visible to normal people; (5) defendants buried the stakes attached to the wires so the stakes were not visible, knowing this would pose a hazard to the public; (6) knowing the lawn mowing would be subcontracted and that debris would likely be placed around the bases of the trees, defendants willfully and wantonly failed to supervise the mowing and trimming of the trees so their location would not be obscured; (7) knowing the park would be used for the Jubilee Celebration, defendants committed willful and wanton misconduct and showed an utter disregard and total indifference to the safety of others by failing to mark the wires although they knew the wires were below eye level; (8) defendants chose baling wire which was rusted when it was attached to the trees which was hard to see and posed a danger to pedestrians; and (9) defendants did not return to mark the trees, although they knew there was a danger of tripping.
Plaintiff's claim of willful and wanton misconduct against the Lutheran Brotherhood was based on Brinkman's actions under a theory of respondeat superior.
The trial judge relied on statutory immunity from negligence claims provided to defendant, the City, pursuant to section 3-106 of the Act, and provided to the additional defendants derivatively. He also concluded plaintiff failed to, and would be unable to, allege facts which as a matter of law would support the counts against defendants based on willful and wanton misconduct. Defendants' motions to dismiss pursuant to section 2-615 of the Civil Practice Law were granted. Ill.Rev.Stat.1989, ch. 110, par. 2-615.
Section 3-106 of the Act states:
"Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury." Ill.Rev.Stat.1989, ch. 85, par. 3-106.
Section 1-207 of the Act defines "public employee" as "an employee of a local public entity." (Ill.Rev.Stat.1989, ch. 85, par. 1-207.) "Local public entity" is defined by section 1-206 of the Act to include a municipality, municipal corporation, park district, and all other local governmental bodies. (Ill.Rev.Stat.1989, ch. 85, par. 1-206.) Section 1-202 of the Act further defines "employee" as "a present or former officer, member of a board, commission or committee, agent, volunteer, servant or employee, whether or not compensated, but does not include an independent contractor." Ill.Rev.Stat.1989, ch. 85, par. 1-202.
Vogt, as a member of the City's park board, qualifies as an employee protected by the Act. Brinkman, who was acting as a volunteer for the City when he planted the trees, also is protected by the Act because he was acting as a volunteer on behalf of the City. Neilson and Miller qualify for immunity from a negligence cause of action because they too were acting as volunteers on behalf of the City. Plaintiff does not contest the court's rulings related to the codefendants' relationships to the City. The issues involve whether their actions, as representatives of the City, are immune from liability pursuant to section 3-106 of the Act.
A section 2-615 motion attacks the legal sufficiency on the face...
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