Winfrey v. Chicago Park Dist., 1-94-1559

• Decision Date: 08 August 1995
• Docket Number: No. 1-94-1559,1-94-1559
• Citation: 654 N.E.2d 508,274 Ill.App.3d 939,211 Ill.Dec. 46
• Parties: , 211 Ill.Dec. 46 Rudolph WINFREY, Plaintiff-Appellant, v. CHICAGO PARK DISTRICT, a municipal corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 508

654 N.E.2d 508

274 Ill.App.3d 939, 211 Ill.Dec. 46

Rudolph WINFREY, Plaintiff-Appellant, v. CHICAGO PARK DISTRICT, a municipal corporation, Defendant-Appellee.

No. 1-94-1559.

Appellate Court of Illinois First District, Second Division.

Aug. 8, 1995.

Steven J. Seidman, David M. Schrauth, Chicago, for appellant.

Nelson A. Brown, Jr., Chicago Park Dist., Chicago, for appellee.

Presiding Justice SCARIANO delivered the opinion of the court:

On June 25, 1991, plaintiff, a City of Chicago employee, was erecting a plastic snow fence in Grant Park in preparation for the annual "Taste of Chicago" festival when he fell through an opening in the chain-link fence situated on the east wall of the Illinois Central Railroad tracks, landing about 15 feet below onto the tracks. He was hospitalized for nine days as a result of his injuries.

On May 15, 1992, plaintiff filed his complaint in the circuit court of Cook County alleging that defendant, owner of the property extending from the east wall of the tracks, breached its duty to maintain the area in a safe condition by

"(a) negligently and carelessly fail[ing] to repair a section of the fence atop the east wall of the Illinois Central Railroad tracks * * * exposing Plaintiff and others to a substantial drop-off to the railroad tracks below;

(b) negligently and carelessly maintain[ing] the area in a condition which was not safe for the Plaintiff and others * * *;

(c) negligently and carelessly allow[ing] a substantial section of the east wall of the Illinois Central Railroad tracks to remain unfenced * * *."

Defendant filed a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure, asserting that it was immune from liability under the Local Government and Governmental Employees Tort Immunity Act (Tort Immunity Act). (Ill.Rev.Stat.1991, ch. 85, par. 3-106 now codified at 745 ILCS 10/3-106 (West 1993).) On June 18, 1992, plaintiff filed his amended complaint, adding Illinois Central Railroad Company as a defendant. The amended complaint, like his initial complaint, sounded in negligence. Illinois Central Railroad filed a motion to dismiss, stating that it did not "own, operate, control or maintain any real property, tracks, rails, walls or fences at or near or below Columbus Drive between Balbo[a] Street and Harrison Street * * *." By agreed order, Illinois Central Railroad was dismissed from the case. On November 5, 1992, the court granted defendant's motion to dismiss without prejudice.

Plaintiff subsequently filed his second amended complaint, adding an allegation that defendant breached its duty to "refrain from willful and wanton conduct" when it

"(a) left a gaping hole in the fence despite their [sic ] knowledge that invitees would traverse the area and could fall great distances;

(b) failed to repair a section of the fence atop the east wall of the tracks, * * * exposing Plaintiff to a substantial drop-off to the railroad tracks below, despite the fact that invitees, including Plaintiff, would be traversing the area;

(c) allowed a substantial section of the east wall of the tracks to remain unfenced so that the Plaintiff and others were exposed to the substantial drop-off to the railroad tracks below, despite the knowledge of such danger."

Defendant filed a motion to strike and dismiss plaintiff's amended complaint pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure. It asserted that plaintiff did not plead specific facts supporting his claim of willful and wanton conduct, that the risk of falling was an open and obvious danger, and that it was not liable for failing to make improvements on its property.

On December 6, 1993, the trial court dismissed plaintiff's complaint with prejudice. At the hearing on the motion, the judge considered two photographs proffered by plaintiff, although he noted that "in the context of the 2615 [sic ] motion, extraneous material other than the pleadings are [sic ] not proper * * *." The judge observed that the fence is located in an open area unobstructed by foliage or bushes. The judge then explained that to sufficiently allege willful and wanton conduct, plaintiff had to allege that defendant's conduct was intentional or that defendant demonstrated a conscious disregard for his safety. He held that plaintiff's complaint did not adequately allege either basis. He further held that "[b]ased on the photographs, it would seem to be--and based on the law, the plaintiff would never be able to state a cause of action."

Plaintiff filed a motion to reconsider and for leave to file his proposed third amended complaint. In his third amended complaint, he alleged that the hole in the fence had existed for "a period of time" prior to the date of his injury and that defendant knew of its existence. He stated that he was unaware of the hole in the fence and that the hole was not visible to him. He also described the fence as one in which "a person could see through the diamond shaped openings between the links, making it difficult to detect the opening in the fence to a casual observer." Plaintiff alleged that defendant engaged in willful and wanton conduct for the reasons set forth in (a)-(c) of his second amended complaint and also by

"(d) fail[ing] to warn plaintiff of the gaping hole in the retaining wall fence despite its knowledge of the existence of the gaping hole and despite knowing that plaintiff would be working in the area."

The court denied plaintiff's motion and he now appeals.

Plaintiff first contends that his second amended complaint stated a cause of action for willful and wanton conduct because he alleged that defendant demonstrated utter indifference to his safety when it sent him to work in an area it knew presented an impending danger without warning him or erecting a temporary barricade.

Illinois is a fact-pleading state, requiring the plaintiff to present a legally and factually sufficient complaint. The supreme court summarized the dual requisites for a sufficient complaint:

"To pass muster a complaint must state a cause of action in two ways. First, it must be legally sufficient; it must set forth a legally recognized claim as its avenue of recovery. When it fails to do this, there is no recourse at law for the injury alleged, and the complaint must be dismissed. [Citations.] Second, and unlike Federal practice, the complaint must be factually sufficient; it must plead facts which bring the claim within the legally recognized cause of action alleged. If it does not, the complaint must be dismissed. [Citation.]" (People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill.2d 300, 308, 58 Ill.Dec. 754, 758, 430 N.E.2d 1005, 1009.)

Thus, although a court must liberally construe pleadings, it cannot deny a motion to dismiss when only conclusions are alleged. See Fahner, 88 Ill.2d at 308, 58 Ill.Dec. at 757-58, 430 N.E.2d at 1008-09.

When considering whether to grant a motion to dismiss, the court must accept all well-pleaded facts as true and construe all reasonable inferences in favor of the plaintiff. (Majewski v. Chicago Park District (1988), 177 Ill.App.3d 337, 338, 126 Ill.Dec. 724, 724, 532 N.E.2d 409, 409.) The pertinent inquiry is whether the allegations, when viewed in the light most favorable to the plaintiff, are "sufficient to set forth a cause of action upon which relief can be granted." (Oropeza v. Board of Education (1992), 238 Ill.App.3d 399, 402, 179 Ill.Dec. 650, 653, 606 N.E.2d 482, 485.) This determination requires an examination of the complaint as a whole, not its distinct parts. (Gregor v. Kleiser (1982), 111 Ill.App.3d 333, 335, 67 Ill.Dec. 38, 40, 443 N.E.2d 1162, 1164, citing Cain v. American National Bank & Trust Co. of Chicago (1975), 26 Ill.App.3d 574-75, 325 N.E.2d 799.) Our Code of Civil Procedure provides that "[n]o pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he or she is called upon to meet." 735 ILCS 5/2-612(b) (West 1992).

When the plaintiff is alleging that the defendant engaged in willful and wanton conduct, such conduct must be shown through well-pled facts, and not by merely labelling the conduct willful and wanton. (Oropeza, 238 Ill.App.3d at 403, 179 Ill.Dec. at 653, 606 N.E.2d at 485; see Cipolla v. Bloom Township High School District (1979), 69 Ill.App.3d 434, 437, 26 Ill.Dec. 407, 410-11, 388 N.E.2d 31, 34-35.) Conclusional statements of fact or law will not suffice to state a cause of action regardless of whether they succeed in generally informing the defendant of the nature of the claim against him or her. Adkins v. Sarah Bush Lincoln Health Center (1989), 129 Ill.2d 497, 519-20, 136 Ill.Dec. 47, 58, 544 N.E.2d 733, 744; Knox College v. Celotex Corp. (1981), 88 Ill.2d 407, 426, 58 Ill.Dec. 725, 734, 430 N.E.2d 976, 985.

Under the Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 1993)), a local public entity ¹ is not liable for injuries if the liability is based on the "existence of a condition of any public property intended or permitted to be used for recreational purposes, including * * * parks * * * unless such local public entity * * * is guilty of willful and wanton conduct proximately causing such injury." (745 ILCS 10/3-106 (West 1993).) The purpose of this immunity is to promote the development and preservation of parks, playgrounds and other similar areas. (Dunbar v. Latting (1993), 250 Ill.App.3d 786, 791, 190 Ill.Dec. 363, 368, 621 N.E.2d 232, 237.) The Tort Immunity Act defines willful and wanton conduct as "a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property." 745 ILCS 10/1-210 (West 1993); see also Newby v. Lake Zurich Community Unit District 95 (1985), 136 Ill.App.3d 92, 96, 90 Ill.Dec. 778, 781-82, 482 N.E.2d 1061, 1064-65; ...