Legal Services Department

A tough look
at the Illinois
Snowmobile Act

By James C. Kozlowski, J.D.

In the case of Ostergren v. Forest Preserve District of Will County, 118 Ill.App.3d 319, 73 Ill.Dec. 824, 454 N.E.2d 1073 (1983), plaintiff Richard Ostergren sued the forest preserve district for negligently "maintaining and supervising the forest preserve for use by snowmobilers." Ostergren was seriously injured when "the snowmobile he was operating struck an excavation trench or mound at the Sauk Trail Forest Preserve and he was thrown from the snowmobile."

In response to Ostergren's complaint, the forest preserve argued any negligence cause of action was barred by section 5-1 (I) of the Illinois Snowmobile Registration and Safety Act. A pertinent part this this statute provides:

"An owner, lessee, or occupant of premises owes no duty to keep the premises safe for entry or use by others for snow-mobiling, or to give warning of any unsafe condition or use of or structure or activity on such premises. This subsection does not apply where permission to snowmobile is given for valuable consideration other than to this State, any political subdivision or municipality thereof, or any landowner who is paid with funds from the Snowmobile Trial Establishment Fund."

The trial court agreed that the statute barred Ostergren's suit and granted a summary judgment in favor of the forest preserve. Ostergren appealed.

On appeal, the issue was whether it was constitutional to bar Ostergren's negligence suit based upon the statutory immunity conferred by the Snowmobile Act. Ostergren argued that the Snowmobile Act unconstitutionally denied him "his right to due process of law by totally extinguishing a common-law cause of action." Ostergren's constitutional argument, as characterized by the appeals court, was based upon the following:

Does the Snowmobile Act deny the right to due process?

The fundamental constitutional rights to which plaintiff's arguments are directed are succinctly stated in Article I, Section 2, of the Illinois Constitution of 1970: "No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws." The right of due process of law is found as well in Section 1 of the Fourteenth Amendment to the United States Constitution. Article I, Section 12, of the Illinois Constitution of 1970 further provides that "every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property and reputation. He shall obtain justice by law, freely, completely, and promptly." Thus stated is the philosophy by which the plaintiff's charge of a statutory due process violation must be considered.

As described by the appeals court, these provisions of the State constitution balance the rights of the individual against the right of the State to exercise its police power to preserve the public health, safety and welfare.

[Sections 2 and 12 of Article 1 of the Illinois Constitution provide] a broad field for the protection of persons in their property and reputation, but this does not give a vested right not subject to change by legislative power, provided the change is reasonably necessary to promote the general welfare of the people and does not destroy a remedy. With the growth and development of the State the police power necessarily develops, within reasonable bounds, to meet the changing conditions. The power is not circumscribed by precedents arising out of past conditions, but is elastic and capable of expansion in order to keep pace of human progress.

Applying these principles to the facts of this case, the appeals court found that a statute, like the Snowmobile Act which relieved the landowner of all liability without regard to the degree of negligence, violated the due process guarantees of the State and federal constitutions. Conversely, a state could constitutionally use its police power to enact a statute restricting negligence causes of action to those instances involving allegations of wilful or malicious landowner misconduct.

In support of this conclusion, the appeals court cited the case of Harvey v. Clyde Park District, 32 Ill.2d 60, 203 N.E.2d 573 (1965), which declared a similar statute unconstitutional because it also denied any cause of action to the injured party:

Section 12.1 of the Park District Code [Repealed by Laws 1967, p. 3561 eff. Sept. 1, 1967] provided: "Any park district shall not be liable for any injuries to person or property, or for the death of any person heretofore or hereafter caused by or resulting from the negligence if its agents, servants, officers or employees in the operation or maintenance of any property, equipment or facility under the jurisdiction, control or custody of the park district, or otherwise occasioned by the acts or conduct of such agents, servants, officers or employees."

Illinois Parks and Recreation     22     November/December 1984

In the opinion of the appeals court, a landowner immunity statute, like the Snowmobile Act, would be constitutional if it did "not preclude a cause of action to the injured party but changes the degree of fault necessary for a recovery from that of the common law."

As written, the Illinois Snowmobile Act was found to be unconstitutional because it barred any negligence cause of action. Under this law, the injured party was denied any legal redress regardless of the degree of alleged landowner misconduct. Consequently, the appeals court concluded that "the statute is in violation of due process of the law and cannot be reconciled with Illinois' philosophy of non-destruction of remedies." According to the appeals court, the absolute immunity from suit provided by the Snowmobile Act failed to strike the proper balance between individual rights and state police power.

In our opinion, the rights of landowners/occupiers, generous enough to permit snowmobilers to use their property without charge, should be carefully weighed against the rights of snowmobilers who benefit from such landowners/occupiers. Absolute tort immunity regardless of the degree of fault on the landowner/occupier's part is not required to strike an appropriate balance. Absolute tort immunity deprives the injured party of an opportunity to be heard, destroys a remedy that existed at the common law, and cannot be justified as a legitimate exercise of the police power. The statutory provision as presently written is invalid.

Based upon the above analysis, a constitutional revision of the Snowmobile Act would provide "a less comprehensive provision to protect landowners from claims for injuries caused to snowmobilers by ordinary negligence on the landowner's part." Presumably, such a statute would allow a cause of action in instances alleging wilful, wanton or malicious conduct on the part of the landowner.

Having found the Illinois Snowmobile Act unconstitutional, the appeals court reversed the summary judgment in favor of the forest preserve district and remanded the case to the trial court for further proceedings. Since this particular suit was no longer barred by the immunity provisions of the Snowmobile Act, the trial court on remand would have to consider Ostergren's allegations of negligence against the forest preserve district.

ABOUT THE AUTHOR: Mr. Kozlowski is an attorney and legal affairs consultant to the National Recreation and Park Association in Alexandria, Virginia. Kozlowski is the author of the Recreation and Parks Law Reporter (RPLR). RPLR is a subscription service of the National Recreation and Park Association (NRPA). It is a quarterly publication reviewing recent recreation-related personal injury court decisions similar to ones described here. RPLR is available at the rate of $45/yr. for NRPA members ($90/yr. non-members) payable to "NRPA Law Reporter." Forward subscription requests to; NRPA Membership, 3101 Park Center Drive, Alexandria, Virginia 22302. For further information contact: Kent J. Blumenthal, RPLR coordinator, at NRPA (703) 820-4940.

Snowmobiling brochure offers trail information., regulations The Illinois Department of Conservation outlines the State's snow-mobiling program in a special brochure, "Snowmobiling in Illinois: State Trails and Regulations." The publication gives the location, trail lengths, facilities offered and trail descriptions for 21 sites. The sites are Argyle Lake, Chain O'Lakes, Johnson Sauk Trail, Jubilee College,. Kankakee River, Mississippi Palisades, Moraine View, Ramsey Lake, Rock Cut, Sangchris Lake, Silver Springs, Weinberg-King and Wolf Creek State Parks; Big River and Sand Ridge State Forests; Clinton Lake and Shabbona Lake State Recreation Areas; Hennepin Canal State Parkway; Illinois-Michigan Canal State Trail; Iroquois County State Conservation Area, and Middle Fork State Fish and Wildlife Area. Copies of the brochure are available from the Department's Bureau of Land and Historic Sites, 524 S. Second St., Springfield, IL 62706.

Illinois Parks and Recreation      23       November/December 1984