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Legal Liability Of Park Districts: Park Districts are not insurers against all accidents occurring in parks. The mere fact that someone is injured in a park does not make the Park District liable. Park Districts are liable for injuries only if they are negligent. By Jay S. Judge First Of Two Installments More and more these days we find a prevailing feeling that if a person becomes injured in a park, the Park District should pay. Consider the following examples of claims brought against Park Districts. Is the Park District liable to pay damages for the injuries sustained in a park in each example? Case No. 1 A 4-year-old little girl playing on a slide is pushed off the side of the slide by a 12-year-old boy hurrying down the slide. The boy didn't mean to push the little girl off. The Park District provided no supervision of the playground. The little girl sustains a crushing neck injury resulting in paralysis of her legs leaving her confined for life to a wheelchair. Suit is brought against the Park District alleging negligence and willful and wanton misconduct in failing to supervise the activities of children in the park by not separating the older and younger children, and in failing to provide sawdust or other soft materials on the ground knowing that children will fall off of equipment onto the ground. Case No. 2 A 12-year-old boy rides his bicycle down a wooden toboggan slide in a park and collides with a telephone pole at the bottom when he loses control and leaves the slide. He sustains two broken legs which leave him with a permanent limp. The slide is appropriately marked "Closed For Summer". Boards nailed across the entrance to the slide had been removed no one knows by whom or for how long or for what purpose. The suit filed charges of negligence and willful and wanton misconduct against the Park District in not warning of the telephone pole, not fencing off or padding the pole, not closing the toboggan slide and not warning that it is dangerous to ride a bike on a wooden toboggan slide. Case No. 3 A 5-year-old boy is playing in a sandbox in the park. A tree with low hanging branches is nearby. The boy places a bucket of sand on a limb of the tree. The weight of the bucket and sand causes the tree limb to whip up, striking the boy in the eye and blinding him in one eye. The suit charges negligence and willful and wanton misconduct in creating a dangerous condition by allowing a tree with low branches in the area of the sandbox, failure to supervise the conduct of the children and failure to warn of the danger of the low hanging branches. Having seen the facts of these three cases, the question arises as to whether the Park District is legally liable in all, any, or none of the cases. That is, under the applicable rules of law, is the Park guilty of negligence or willful and wanton misconduct which causes the injury and, hence, legally liable to pay damages? A second question. Without regard to legal liability or reasonability, will the Park District settle or pay these cases because the injuries are severe, and the Park District is concerned that a jury may award a large verdict based on sympathy? Before reviewing the specific rules of law applicable in each of the three case examples, it is helpful to discuss some general principles of law that apply in cases involving Park Districts. What legal obligation or duty does a Park District have to someone coming onto and using its park land and facilities? The obligation or duty owed by a landowner or occupier to a person coming onto its property is determined by the status of the person coming onto the premises. Different legal obligations or duties are owed to different persons coming onto the premises depending upon their purpose for being on the premises. The Illinois Supreme Court in Pashinian v. Haritonoff,1 has reiterated its approval of the long-standing common law rule dividing users of premises into three categories: (1) invitee; (2) licensee (or, social guest); and (3) trespasser.2 "Parks need not be perfect so that an accident cannot possibly happen. They need be only 'reasonably safe."' An invitee is a person who goes onto the premises at the express or implied invitation of the owner for a business purpose of benefit to the owner or possessor or for a mutual beneficial purpose for both the user and the owner/possessor.3 As to an invitee on the premises, the landowner/possessor owes a duty or obligation to exercise due care to make the 1. Pashinian v. Haritonoff, 81 Ill. 2d 377. 310 N.E.2d 21 (1980). 2. Hitler v. F. W. Harsh. 100 Ill. App. 3d 332. 426 N.E.2d 960 (1981). 3. Matlrazo v. Michaels, 1 Ill. App. 3d 583, 274 N.E.2d 635(1971). Illinois Parks and Recreation 22 July/August 1983 A person using a Park may be an invitee, licensee, or trespasser. The obligation owed that person will depend upon his status which will depend upon the nature of his use of the premises." premises reasonably safe for the invitee's use.4 As a general rule. Parks are considered public areas providing a common benefit to the public. Parks are held out to the public. Thus, it can be said generally that when the public is using Park facilities for the intended purpose within the invitation extended, the public are considered invitees to whom a duty is owed to make the premises reasonably safe.5 It is important to note that this obligation is one of "reasonably safe". Parks need not be "accident-proof". Parks need not be perfect so that an accident cannot possibly happen. They need be only "reasonably safe". The obligation to provide "reasonably safe" Parks extends only to the extent of the invitation for use. If, for example, a Park is closed to the public at night and someone enters the park at night and trips on an object or falls in a hole because of lack of lighting, the Park District has violated no obligation and cannot be liable. The Park was closed. There was no invitation to the public. The user was a trespasser, not an invitee.6 Perhaps the obligation owed by a Park District to an invitee (a member of the public in the park using facilities for their intended purpose and within the framework of the invitation for which the premises are held out) is best expressed in the words of the court in Beccue v. Rock ford Park District,7 wherein the court stated:
"'An owner of property is not an insurer against accident occurring on the premises of the owner, and an owner's liability to an invitee for injuries not intentionally inflicted must be predicated upon negligence, and no presumption of negligence on the part of the owner arises merely by showing that an injury has been sustained by one rightfully upon the premises . . . The rule is that an occupant or owner of premises owes to an invitee a duty to use ordinary care to have the premises in a reasonably safe condition for use in a manner consistent with the purpose of the invitation, not to lead such person into a dangerous trap and to give such person adequate and timely notice and warning of latent or concealed perils which are known to the owner but not to the invitee.'"8 Conversely, the invitee is expected to be aware of all obvious and normal hazards accompanying the use of the premises. As the Illinois Supreme Court has said with respect to the obligation of an invitee: "A business invitee has the responsibility for his own safety and must be held to be equally aware of all the obvious and normal hazards incident to the premises as the possessor of the land."9 Frequently, it is contended that a Park District is liable for an accident because it didn't warn of a danger. It must be remembered that the courts expect persons to have common sense. There is no obligation to warn of obvious conditions or dangers of which all persons possessing common sense are normally aware. The duty to warn is a duty to warn of dangers not obvious and apparent dangers a reasonable person would not normally expect to be aware of. The rule on warnings has been summarized in these words: "Since the purpose of warning is to apprise a person of the existence of a danger of which he is not aware, there is no duty to warn against risks which are known and obvious."10 The second class of users of property is that of a licensee. A licensee is a person who goes onto premises solely for his own purposes and benefit. A social guest is a licensee."11 The obligation owed by a landowner/possessor to a licensee or social guest is to refrain from willful and wanton misconduct. "Willful and wanton misconduct" has been defined as follows: "A willful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting reckless disregard for the safety of others, such as a failure after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care."12 Thus, the obligation owed to a licensee is simply to refrain from intentionally causing injury or acting so recklessly that injury is almost sure to come. There is no obligation to maintain the premises in safe condition for a licensee, just not to intentionally or recklessly cause injury. The rule with respect to the third category of land users, trespassers, is similar to the rule regarding licensees. A trespasser is a user who has no permission and, in fact, may have been restricted from coming onto the premises. A landowner/possessor has no obligation to keep its land safe for a trespasser. The only obligation owed to a trespasser is to refrain from intentional or reckless injury or to refrain from any hidden entrapments for the trespasser.13 Thus, a person using a Park may be an invitee, licensee, or trespasser. The obligation owed that person will depend upon his status which will depend upon the nature of his use of the premises. While, generally, the public will be considered invitees, that status can change depending upon the extent of the invitation. There is one other category of land-user frequently referred to. That is the status of the child trespasser under the doctrine of attractive nuisance. The Illinois Supreme Court in Kahn v. James Burton Co.,14 expressed Illinois' modified version of the common law rule of attractive nuisance in these words: ". . . where the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their imma- 4. Madrazo v. Michaels, 1 Ill. App. 3d 583, 274N.E.2d 635(1971). 5. Beccue v. Rockford Park District, 94 Ill. App. 2d 179. 236 N.E.2d 105(1968). 6. See. Brett v. Century Petroleum, 302 Ill. App. 99. 23 N.E.2d 359 (1939). where a gasoline station customer was held to be an invitee for purposes of using the bathroom but a trespasser when walking into the grease pit area for servicing cars which was not open and was unlit. 7. Beccue v. Rockford Park District, 94 Ill. App. 2d 179. 236 N.E.2d 105 (1968). 8. Beccue v. Rockford Park District, 94 Ill. App. 2d 179. 236 N.E.2d 105(1968). 9. Genaust v. Illinois Power Co., 62 Ill. 2d 456,343 N.E.2d 465.472(1976). 10. Chisolm v. Stephens. 47 Ill. App. 3d 999, 365 N.E.2d 80,87(1970). 11. Macirazo v. Michaels, 1 Ill. App. 3d 583, 274 N.E.2d 635 (1971). 12. Schneiclerman v. Interstate Transit Lines, Inc., 394 Ill. 569. 69 N.E.2d 293 (1946). 13. Wood v. Consumers Co., 343 Ill. App. 530.79 N.E.2d 826(1948). 14. Kahn v. James Burton Co., 5 Ill. 2d 614, 126 N.E.2d 836(1955). Illinois Parks and Recreation 23 July/August 1983 turity, are incapable of appreciating the risk involved and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children."15 But the Kahn rule (Illinois' modified attractive nuisance rule) does not apply to all conditions on the premises. It applies only to a "detective structure" or "dangerous agency" which children can't appreciate because they are too young. Explaining that the Kahn rule does not apply to common objects or conditions, the Supreme Court, finding a ditch into which a 2-year-old fell, not to be a "defective structure" or "dangerous agency" under Kahn in Corcoran v. Village of Libertyville,16 stated the applicable rule as follows: "On the other hand, the Kahn principle should not be construed to impose a duty on owners or occupiers to remedy conditions the obvious risk 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. As this court has observed: "The law recognizes that children, especially those of tender age, might conceivably be injured by the most innocuous of conditions. As expressed in the comments accompanying §339 of the Restatement (Second) of Torts: '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.'"17 The attractive nuisance rule or Kahn rule is meant to protect children from non-obvious dangers they are too young to appreciate: poisonous chemicals, dangerous fumes, unguarded dangerous machinery and such. It does not protect against obvious, common dangers: falling from a tree. getting burned by a fire, tripping over an object and such.
There are numerous common objects which may injure a child but are not inherently dangerous. It has been said:
"It must be recognized that a child may be injured by any one of an endless number of items which are commonly used by children, and which are not inherently dangerous. such as an ice skate, or a roller skate, a bicycle, a croquet mallet, a baseball, or a bat."'18 Numerous common objects or conditions have been found not to constitute a "defective structure" or "dangerous agency". For example, the following have been found to be common objects or conditions not giving rise to a cause of action as defective structures or dangerous agencies: 1. Stones in an excavating pile;19 2. A pile of sand;20 3. A retaining wall;21 4. Clods of dirt with glass in it;22 5. Hill of dirt near tree branch;23 6. Railroad car;24 7. Containers of paint in trash pile;25 8. Unattended rubbish fire;26 9. Cans of gasoline and oil;27 and 10. Ditch or drainage ditch into which child falls.28 Thus, for liability for injuries to be found against the Park District, the injuries must arise from some defect in the premises or equipment which made or created an unreasonably dangerous condition which a user wouldn't expect (e.g.. the chain on a swing breaks; a picnic table collapses; old glass is found in the swimming pool). If the Park District furnishes equipment (slides, swings, etc.) must it supervise its use? No. The Park District's only liability for furnishing facilities is for furnishing defective or broken facilities. There is no duty to provide supervision. Parks are a 15. Kahn v. James Burlon Co., 5 Ill. 2d 614. 126 N.E.2d 836 (1955). 16. Corcoran v. Village of Libertyville, 73 Ill. 2d 316.383 N.E.2d 177 (1978). 17. Corcoran v. Village of Lihen rville, 73 Ill. 2d 316.383 N.E.2d 177 (1978). 18. Crohn v. Congregation B'Nai Zion. 22 Ill. App. 3d 625. 317 N.E.2d 637. 640 (1974). 19. Sahara v. Radnor Benson, Inc., 52 Ill. App. 3d 119. 367 N.E.2d 233 (1977). 20. Landman v. M. Susan & Associates, Inc., 63 Ill. App. 2d 292, 211 N.E.2d 407 (1965). 21. Bishop v. Sears. Roebuck & Co.. 104 Ill. App. 2d 333. 245 N.E.2d 517 (1979). 22. Donehue v Duvall, 41 Ill. 2d 377. 243 N.E.2d 222 (1968). 23. Krakowiak v. Sampson, 85 Ill. App. 2d 71. 299 N.E.2d 578 (1967). 24. Sydenstricker v. Chicago & Northwestern Ry. Co., 107 Ill. App. 2d 427. 246 N.E.2d 15 (1969). 25. Driscoll v. C. Rasmussen Corp., 45 Ill. 2d 74, 219 N.E.2d 483 (1966). 26. Weiss v. City of Chicago. 23 Ill. App. 2d 280. 162 N.E.2d 601 (1959). 27. Anderrson v. Karstens. 297 Ill. 76 (1921). 28. Corcoran v. Village of Libertyville, 73 Ill. 2d 316. 383 N.E.2d 177 (1978). Illinois Parks and Recreation 24 July/August 1983 benefit to society. They are furnished for the pleasure of the people. They have a social value, part of which is to stimulate the physical, mental, and social development of children. The facilities are there to be used properly by the people. If the facilities are nondefective, the Park District is not responsible for injuries because people misuse or abuse the facilities. The court in Chimerofsky v. School District No. 63,29 explained why there is no duty on Park Districts to supervise playground activities, saying:
"A plaintiff in tort litigation for personal injuries must allege facts in the complaint from which the law will raise a duty. The social utility of furnishing playground slides for the pleasure and enjoyment of children is a commendable function of governmental bodies at all levels. The existence in this state of many unsupervised public playgrounds and public recreational facilities that provide playground slides is common knowledge. The obligation to supervise children in their activities and play falls upon the parents of the child, not the landowner, possessor upon whose land the child comes to play. As the Illinois Appellate Court said in Prince v. Wolf,31 which involved a child who drowned, regarding the parents' responsibility: "It is always unfortunate when a child gets injured when playing, but a person who is merely in possession or control of the property cannot be required to indemnify against every possibility of injury thereon. The responsibility for a child's safety lies primarily with its parents whose duty it is to see that his behavior does not involve danger to himself."32 When the Park District furnishes equipment, must it be the latest or safest possible design? No. The equipment need not be the latest or best designed. It must simply be non-defective. For example, a door with an ordinary non-broken glass panel is perfectly acceptable. Perhaps, using plexiglass in the door would be a better or safer condition but ordinary glass is a common object not unreasonably dangerous.33 To illustrate further, it has been held that a city or village has no duty to furnish traffic lights with "Walk Don't Walk" signals. It was contended that a "Walk Don't Walk" signal would have been safer than a 29. Chimerofsky v. School District No. 63. 121 Ill. App. 2d371, 257 N.E.2d 480 (1970). 30. Chimerofsky v. School District No. 63, 121 Ill. App. 2d 371, 257 N.E.2d 480 (1970). 31. Prince v. Wolf. 93 Ill. App. 3d 505, 417 N.E.2d 679 (1981). 32. Prince v. Wolf. 93 Ill. App. 3d 505. 417 N.E.2d 679 (1981). Explaining that a landowner has no duty to supervise children on the premises, the court in Campbell v. Northern Signal Co., 103 Ill. App. 3d 154. 430 N.E.2d 670 (1981). stated: "The law in this stale does not generally require a landowner to watch over minors who are invited onto their property." (430 N.E.2d at 673.) The supervision of a child rests with the parent. The court in Campbell held:
".. . the primary responsibility for the safety of this minor child rested with its mother. That responsibility can he shifted to the host only if it may be said thai the host is at fault under some recognized theory of liability." (430 N.E.2d at 673.) 33. See. Ronamie v. Welsh, 95 Ill. App. 3d 349.420 N.E.2d 243 (1981). In Bonamie the court held that while an ordinary glass panel in a door could have been made safer by using plexiglass, an ordinary glass panel was simply not unreasonably dangerous. In Bonamie, a 5-year-old boy fell through a glass door while playing at Defendant's premises. Suit was brought alleging negligence in Illinois Parks and Recreation 25 July/August 1983 regular, standard, traffic light. The court in Plesnicar v. Kovach,34 held that a regular standard traffic light was not defective and was not made ureasonably dangerous or defective just because there might exist a better design or type. Similarly, it was contended in Hunt v. Blasius,35 that there was a duty to provide break-away signpost so that when the post was struck, it would break and yield and not cause damage, or as much damage, to a vehicle striking the signpost. The Supreme Court held that there was no duty to furnish a breakaway post. The Supreme Court in Hunt v. Blasius rules that while break-away signposts could be safer and better, a regular signpost is not unreasonably dangerous or defective simply by virtue that there may be something better available. The court said:
"Plaintiffs have alleged no legally cognizable detect in the sign post. They have merely indicated a preference for 'breakaway' posts. However valid that preference might be, the availability of an alternative design does not translate into a legal duty in products liability. Here, there is no allegation of a defect in the post which affected its intended or actual use to safely support the sign. The risks which inhered to the collision with the post were the same risks which attend all collisions between motorists and stationary objects which align the highway. "36 As becomes evident upon a review of the applicable law, the true exposure for legal liability on the part of Park Districts is greatly limited. Basically, as a general rule, it is only when equipment breaks or some dangerous physical exposure exists on the premises that there may be liability. While all just claims for which there is truly legal liability should be fairly, adequately, and expeditiously disposed of, the payment of non-meritorious claims or the failure to present an aggressive defense only encourages further non-meritorious suits. As honey catches more flies than vinegar, payment of non-meritorious claims brings more claims than a vigorous defense. A vigorous, aggressive defense is the type that turns the case around. Instead of the Park District running scared, it is the Plaintiff who must worry that his case will be dismissed or lost. Let us review the three case examples proposed earlier: Case No. I The 4-year-old paralyzed in the legs from being accidentally pushed off the slide by a 12-year-old. Liability? No. Any duty owed to the 4-year-old? No. There are several reasons for no liability in this case. Each reason will be discussed briefly in turn with the thought that the previously mentioned rules are to be considered. "The Park District has no duty to supervise the conduct of persons using the parks." First, who caused the 4-year-old's severe injury. The Park District? The 12-year-old? Certainly, the 12-year-old who accidentally pushed the 4-year-old was the proximate cause of the injury. What responsibility does the Park District have for the actions of third persons coming onto its land and causing injury? None. A landowner/possessor has no obligation or duty to protect users of the land from the negligent or criminal acts of third persons coming upon the premises.37 For example, in Gill v. Chicago Park District,38 the court held that the Chicago Park District was not liable for failing to prevent a patron at a Chicago Bears game at Soldier Field from being assaulted by other patrons. Similarly, in Yeater v. Decatur Park District,39 the court held that the Decatur Park District was not liable for failing to protect a patron ice skater from being knocked down by another skater. This rule simply acknowledges that a landowner/possessor can't control the conduct of other people. The landowner/possessor is liable only for its conduct acts or omissions not someone else's. Secondly, the Park District has no duty to supervise the conduct of the persons using the Parks. The courts have held that merely furnishing the physical facilities would not require also supervision of the use of such facilities. As the court in Chimerofsky40 indicated, requiring supervision could well result in the closing of park facilities because of such an added burden on already financially strapped Park Districts. Thirdly, the risk of falling from heights and landing on the ground is a common danger reasonably expected to be understood by any child FOOTNOTE 33 Continued the following grounds: 1. Negligently failed to place a guard over the glass door; 2. Negligently failed to warn plaintiff; 3. Negligently failed to supervise plaintiff's play; and 4. Negligently failed to install plexiglass when a different panel in the door broke previously and was replaced by plexiglass. Finding that there was no duty and, therefore, no cause of action, the court in Bonamie reasoned as follows:
"The door in question was not alleged to be inherently dangerous, defective or unique in any way. Quite simply, it was a porch door with glass panels. It was not alleged to be in a poorly lighted area or in surroundings which would create an illusion ol being open when it was not. A common door located in a place where one would expect a door to be, is not, in and of itself, a dangerous agency. Almost any household fixture is capable of causing injury under certain conditions. Indeed, one would expect that a person might be injured it he fell through a glass door. Likewise, one would expect that a person might be injured if he fell down, whether or not he fell through a glass door. An owner is not required to protect against the perpetual possibility that a person, whether or not a child, will hurt himself under plain, ordinary conditions. To hold otherwise would make every landowner an absolute insurer for all injuries occurring on his premises. Such is not the law." (420 N.E.2d at 244.) 34. Plesnicar v. Kovach, 102 Ill. App. 3d 867, 430 N.E.2d 648 (1981). 35. Hunt v. Blasius. 74 Ill. 2d 203,384 N.E.2d 368 (1978). 36. Hunt v. Blasius, 74 Ill. 2d 203,384 N.E.2d 368 (1978). 37. The rule in Illinois has long been that there is no duty to protect against the criminal or negligent acts of third persons. Gill v. Chicago Park District. 85 Ill. App. 3d 903. 407 N.E.2d 671 (1980) (no duty on park district to protect patron from assault); Pippin v. Chicago Housing Authority. 78 Ill. 2d 204. 399 N.E.2d 596 (1979) (no duty to protect guest from battery); Martin v. Usher. 55 Ill. App. 3d 409. 371 N.E.2d 69 (1977) (landlord has no duty to protect tenant from rape and robbery); Smith v. Chicago Housing Authority. 36 Ill. App. 3d 967. 344 N.E.2d 536 (1976) (no duty to protect tenant from shooting); Boyd v. Racine Currency Exchange. Inc., 56 Ill. 2d 95. 306 N.E.2d 39 (1973) (no duty of currency exchange to submit to robber to protect patron); Fancit v. Q.S.E. Foods. Inc., 60 Ill. 2d 552. 328 N.E.2d 538 (1975) (no duty to light premises to protect security officer from burglar); Moore v. Yearwood, 24 Ill. App. 2d 248, 164 N.E. 215 (1960) (no duty of tavern to protect patron from assault by another patron): Altepeler v. Virgil Stale Bank. 345 Ill. App. 585. 104 N.E.2d 334 (1952) (no duty of bank to protect customer from shooting by robber); Shame v. Coliseum Building Corporation. 270 Ill. App. 547 (1933) (no duty of boxing promoter to protect patron from pushing crowd when someone yells "fire" or "Fight".) 38. Gill v. Chicago Park District, 85 Ill. App. 3d 903. 407 N.E.2d 671 (1980). 39. Yeater v. Decatur Park District. 8 Ill. App. 3d 957. 290 N.E.2d 282 (1972) (Abstract only.) 40. Chimerofsky v. School District No. 63, 121 Ill. App. 2d 371, 257 N.E.2d 480 (1970). Illinois Parks and Recreation 26 July/August 1983 old enough to be at large. So indicated the Supreme Court in Corcoran v. Village of Libertyville,41 stating that a ditch or drainage ditch in which a child almost drowned was not unreasonably dangerous. The court held that children permitted to run at large unattended are deemed to appreciate the dangers of fire, water and height. Hence, the Park District is not liable because of the 4-year-old's exposure to falling from a height the slide nor for the fact that the 4-year-old landed on the ground instead of sawdust or other soft material. These are common objects and exposures. Fourthly, there is no duty or obligation to furnish sawdust or padding on the ground under playground equipment from which children might fall. Children fall on city sidewalks constantly. There is no duty on a city to furnish rubber sidewalks. Cars collide everyday. There is no duty to pad cars making them like carnival bumper cars. As there was no duty to furnish breakaway sign-posts in Hunt v. Blasius,42 there is no duty to furnish sawdust everywhere a child might fall. Ground is not inherently or unreasonably dangerous. Finally, the contentions raised by the 4-year-old could not amount to willful and wanton misconduct. This concept, as well as the Tort Immunity Act, will be touched upon briefly near the conclusion of this article. Case No. 2 12-year-old on wooden toboggan slide losing control and hitting telephone pole. Is the purpose of a wooden toboggan slide for riding bicycles? Obviously, not. Is the Park District liable when a child uses a toboggan slide for a bike path? No. Several areas of law will clarify the lack of liability. First, what duty is owed to a 12-year-old who chooses to use a toboggan slide for its non-intended purpose: riding a bicycle? The 12-year-old may be an invitee to whom there is a duty to maintain the premises reasonably safe when he is simply riding his bike in the park in areas reasonably contemplated for bike riding. However, when he rides his bike down a toboggan slide, he becomes a trespasser as to that property to whom no duty is owed other than to refrain from intentionally or recklessly injuring him. Will the doctrine of attractive nuisance transfer the 12-year-old from a trespasser into an invitee while using the toboggan slide? No. It is not an unreasonably dangerous object or condition when used for its intended purpose. Secondly, is there a duty or obligation to warn the 12-year-old that riding his bike down a toboggan slide is dangerous? No. There is no duty to warn of the obvious. Common sense tells even a 12-year-old that a toboggan slide is for toboggans and dangerous for bicycles. Thirdly, unless there is some physical defect in the toboggan slide, it is a common object not unreasonably dangerous for its intended purpose and, hence, there can be no liability for a non-defective condition. Is a tree, roof or fence unreasonably dangerous because a child decides to jump off of it? Case No. 3 5-year-old placing the bucket on a tree limb while it snaps into his eye. Using the rules which have been set out herein, it seems clear there is no negligence in this case. Is a tree limb, even near or next to a sandbox, an unreasonably dangerous structure or condition? It is a simple common object. Having looked at these cases, should a Park District pay or settle these cases because of the severe injuries and concern over what a jury may do? If the Park District's position is truly correct, there is no need to fear what a jury may do. My feeling is that the legal arguments are so strong in these cases, that a jury need not be feared. The cases can be won at two levels: (1) on the law at the pleadings station; or (2) on the facts before the jury. (To be continued in forthcoming issue) 41. Corcoran v. Village of Libertyville, 73 Ill. 2d 316. 383 N.E.2d 177 (1978). 42. Hunt v. Blasius, 74 Ill. 2d 203,384 N.E.2d 368 (1978).
ABOUT THE AUTHOR: Jay S Judge, J.D. from John Marshall Law School with honors, served as Editor-in-Chief of the John Marshall Law Review. He writes a column "In Federal Courts" for the Chicago Daily Law Bulletin and "Ready For The Defense" for County & Township Official Magazine. He is a partner in the 15-attorney Park Ridge firm of Judge & Knight, Ltd. Specialties are defense of governmental bodies and insurance coverage cases.
Illinois Parks and Recreation 27 July/August 1983 |
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