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The Duty to Warn

"There have been several court decisions that have dealt with this topic, and this article starts with an analysis of what the courts have referred to as the 'dangerous condition' rule."

By Alan J. Brinkmeier

Signs that warn of dangerous park and recreation areas, and the method to communicate warnings, have become significant topics in litigation in the past few years.

In Illinois park and recreation settings, the decision about when to warn, and under what circumstances no warning is required, has been the topic of several recent court decisions, especially in light of the relatively new Tort Reform Act. This article focuses on some of those court decisions that seem to indicate that under certain circumstances there is no duty by the recreation facility to warn. Specifically, this article is directed to those governmental units that are defined by statute as a "local public entity" which includes park districts, forest preserve districts, municipal corporations, counties, townships and other governmental bodies.

The recreation facility's planner must make a determination about certain conditions of the property used by the public in determining whether a warning is required. The classic situation where no warning is required relates to conditions of the premises that represent "open dangers" or "open and obvious" conditions.

There have been several court decisions that have dealt with this topic, and this article starts with an analysis of what the courts have referred to as the "dangerous condition" rule.

In Corcoran v. Village of Libertyville, the plaintiff brought an action to recover from injuries sustained by a 2-year-old who fell into a ditch that was on the defendant's property. The decision is worth noting, in that that court decision reaffirmed that the

(continued on page 17)

Illinois Parks and Recreation 9 May/June 1990

The duty to warn (from page 9)

doctrine of "attractive nuisance" was no longer a good law in Illinois.

The court discussed at length the "dangerous condition" rule, and began to provide guidance to land owners about when such a rule applied. In that case, the court indicated that an owner of land had a duty to remedy conditions which, although harmless to adults, are dangerous even to children who foreseeably wander onto the premises. The court noted that this principle "...should not be constructed to impose a duty on owners or occupiers to remedy conditions of obvious risks of which children generally would be expected to appreciate and avoid. Even if an owner or occupier knows that children frequent his premises, he is not required to protect against the ever-present possibility that children will injure themselves on obvious or common conditions."

In that case, the court determined that a duty would be imposed under "ordinary negligence" when an owner or occupier knows that children "frequent the premises and if the cause of the child's injury was a dangerous condition." In Kahn v. James Burton Company, the attractive nuisance doctrine was rejected.

In many of the more recent court decisions, there have been several instances where children have failed to meet the burden, required by the case law, to prove that the condition sued about was something other than an "open danger."

Another recent opinion that deals with the "open danger" analysis by the courts is the case of Bazos v. Chouinard. In that case, a 10-year-old girl fell from a tree on the defendant's properly and fractured her arm. The plaintiff alleged that the defendant had permitted a picnic table and bench to be placed in close proximity of a low-extending limb of a tree and that the defendant had permitted a number of minor-aged children to play on and around the tree and the table. It was alleged that the defendant knew or should have known that this would be a dangerous activity and that this activity had gone on for some time.

The Appellate Court confirmed the trial court's dismissal of the plaintiff's case, noting that the plaintiff was of an age that she could appreciate the risks of her activities (i.e. falling from a height) and decided that the defendant would not be liable despite the allegations that the defendant had permitted this activity.

This case is instructive in that is indicates what has long been recognized about certain dangers that'' ...there are many dangers, such as those of fire and water or of falling from a height, which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed at large."

More recently, in Batzek v. Vetz, a 14-year-old boy fell from a tree located on the defendant's property and became a paraplegic. That court specifically stated that, as a matter of law, there are many dangers, such as those of fire and water and falling from a height, which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child of an age to be at large.

The court indicated that again there is no duty by a land owner or a possessor of land to protect against the possibility that children will injure themselves on obvious dangerous conditions. Falling from a height is the type of danger that a child allowed to be at large is able to appreciate. The court went on to state that the defendant had no duty to "...chop down his trees, fence them, or otherwise protect against the possibility a child will climb one of them and suffer a fall." In that case the defendant was absolved of any liability to the child.

The court analysis of this situation has not stopped there, in that there have been numerous cases over the past decade which have discussed the type of conditions of property that even a child need not be warned.

The same approach was taken by the court in Salinas v. Chicago Park District, a recent park district case. The parents of an 8-year-old girl sued to recover for the wrongful death of their daughter who had fallen from a slide onto an asphalt surface below. The parents alleged that their daughter was mentally disabled, and that she could not realize the danger of the fall. The court ruled that a subjective standard is to be applied in determining whether the child is of an age to appreciate the risks of a fall from a height.

In determining that the defendant owed no duty to the plaintiff, the court ruled that the daughter, who had gone to school for several years, was in kindergarten, and had been to the park and played on the slide on other days before her fall, was of an age to be able to appreciate the dangers of a fall from the slide to the asphalt.

These cases are instructive because they clearly indicate in Illinois that it is not the knowledge of the particular child that the court is to rely upon in determining whether a duty exists, but the application of an objective standard test related to the knowledge of a normal child generally allowed to be at large.

Claims of Hidden Dangers

In addition to the claims for injury made relative to falling from heights, other court cases have death with areas of water by applying the same analysis. In Cope v. Doe, the court ruled that a reservation pond was a dangerous condition to a 7-year-old. The plaintiff had argued that the danger of the reservation pond was not apparent, and that a warning was required to alert the public of the hidden danger. The court was not persuaded with this argument and stated that many dangers, including water, could reasonably be expected to be understood by a person of any age that is allowed to be at large.

In a very similar case, Weber v. Village of Carol Stream, the victim drowned when he fell through an ice-covered pond. The court expanded the reasoning presented in Cope, to frozen ponds because "...children are expected to appreciate the possible hazards associated with water and should know that the same dangers accompany ice..." The court held that the ice-covered pond presented "an open and obvious risk of drowning."

In Durham v. Forest Preserve District of Cook County, the decedent, a boy of age 16, had been on Forest Preserve property, and had entered Schiller Pond. The plaintiff, while swimming, began to experience difficulty and drowned. The court indicated that the condition of the Forest Preserve at that area represented an "open danger" which Durham, at age 16, could have appreciated. The entry of the judgment in favor of the defendant was upheld on appeal based on the "open danger" or "open and obvious danger" standard.

In a recent case, Dowen v. Hall, a 23-year-old plaintiff was injured by diving off the defendant's pier into Fox Lake. The (conclusion on page 34)

Illinois Parks and Recreation 17 May/June 1990

The duty to warn (from page 17}

plaintiffs complaint claimed both negligence and willful and wanton misconduct of the defendant's failure to warn of a supposed hidden danger of diving off a pier into a murky and sandy body of water. The area of the dive was just next to a man-made pier and the counter argument was that the danger was not an open and obvious one but was hidden. The court held that the defendant had no duty to warn of the danger because the danger was not concealed and was open and obvious as a matter of law.

In another case, Wingate v. Camelot Swim Club. Inc., the court held that a man- made duck pond was an open and obvious danger to a 5-year-old and 7-year-old, both of whom drowned while being supervised by a baby sitter. The court, citing Cope, held that the defendant had no duty to warn because the danger was not hidden, but was obvious.

These latter cases are particularly instructive because certain local entities are protected against suits for injuries that are caused by conditions of public property that are used or permitted to be used for recreational purposes. This would included but is not limited to, parks, playgrounds, open areas, buildings or other enclosed recreational facilities. Liability does not exist against the local public entity unless the entity is guilty of willful and wanton misconduct. In addition, certain public entities are immune from suit that involve certain hazardous recreational activities or injuries that occurs on or close to various waterways.

The term "willful and wanton conduct" is defined as a course of action which shows an utter indifference or conscious disregard for the safety of others. This is generally thought to be a more difficult legal standard than common negligence for a plaintiff to prove at trial, in that the plaintiff must prove that there was a dangerous condition that caused injury, that the defendant had knowledge of the dangerous condition and that in light of that knowledge the defendant showed an utter indifference for the safety of those on the premises.

The instruction to the park and recreation supervisor or planner provided by these recent court rulings is enlightening. If the park and recreation professional, in using sound judgment, determines that an area of danger is an obvious one, then the recreation facility need not place a warning sign or take other steps to communicate the warning to the public, or even a child of an age allowed to be at large.


The courts have begun to provide specific guidance as to when warnings would be required in light of certain conditions that are "open dangers" or "open and obvious." The park and recreation agencies need to make a determination as to what conditions of the recreation facilities qualify.

This article has described certain conditions of the land that the courts have, in the past, determined to be dangers for which there is no duty to warn.

The statutory guidelines for local government entities set the standard by which the agency will be judged. Even though there is a statutory definition, there still must be a connection between the alleged injury and conduct of the local governmental agency.

A clear reading of the more recent cases pertaining to these types of conditions of land indicate that there need not be a warning for each and every area of the park and recreation facility that presents a potential danger. The current case law seems to indicate that the park and recreation planner indeed can use sound judgment in determining whether a warning sign, fence barricade or other device is needed when conditions of the land are such that the dangers are capable of being appreciated and understood, even by children.

About the Author

Alan J. Brinkmeier is an attorney with the law firm of Pretzel and Stouffer, Chartered, in Chicago. He has represented several municipalities in the Chicagoland area, and has represented the Forest Preserve District of Cook County in litigation concerning issues relating to warning signs for the patrons of the district. (All rights reserved.) Brinkmeier received his bachelor of arts degree from Elmhurst College in 1976 (high honors) and his J.D. from DePaul University College of Law in 1984.

Illinois Parks and Recreation 34 May/June 1990

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