Jacobson v. Waszak

No. 2--96--1326

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

GARY E. JACOBSON, ) Appeal from the Circuit Court
) of Lake County.
Plaintiff-Appellant, )
) No. 94--L--1044
v. )
)
PAUL WASZAK and WASZ'S )
PLAYTIME RESORT, INC., ) Honorable
) Bernard E. Drew,
Defendants-Appellees. ) Judge, Presiding.
_________________________________________________________________

JUSTICE THOMAS delivered the opinion of the court:
In this negligence case, plaintiff, Gary E. Jacobson, appeals
from the circuit court's order granting summary judgment to
defendants, Paul Waszak and Wasz's Playtime Resort, Inc. (Playtime).
The trial court concluded as a matter of law that defendants were
immunized from suit by section 5--1(I) of the Snowmobile Registration
and Safety Act (Snowmobile Act) (625 ILCS 40/5--1(I) (West 1992)) and
section 4 of the Recreational Use of Land and Water Areas Act
(Recreational Use Act) (745 ILCS 65/4 (West 1992). We affirm.
Plaintiff filed a complaint against defendants alleging that,
on or about February 6, 1993, Waszak, individually and as agent and
employee of Playtime, was negligent in creating a snowmobile racing
track by plowing snow from the frozen surface of Channel Lake near
Antioch, Illinois, and in marking the lanes by the placement of
cones. Plaintiff alleged that, as a result of defendants' breach
of duty of ordinary care by their acts and omissions, plaintiff was
injured when he was thrown from his snowmobile upon striking a
frozen mound of snow at the end of one lane at a "great" speed.
On appeal, plaintiff argues that the trial court erred in
determining that the immunities applied to defendants because the
immunity statutes do not apply where permission to utilize the
property is given in exchange for a fee and defendants would charge
a membership and entry fee prior to participating in the snowmobile
drag race held there. Plaintiff concedes that he did not actually
pay a fee but nevertheless contends that, where defendants generally
charged a fee, the immunities are inapplicable. Plaintiff relies
on certain statements regarding the Recreational Use Act made in
Phillips v. Community Center Foundation & the Children's Farm, 238
Ill. App. 3d 505 (1st Dist. 1992). The Phillips court appears to
have determined, among other things, that the defendant could not
invoke the immunity against a nonpaying recreational user of the
land despite the clear language of that act. That act exempted the
owner of land, who did not charge recreational users of the land,
from any "duty of care to keep the premises safe for entry or use
by any person for recreational purposes, or to give any warning of
a dangerous condition, use, structure, or activity on such premises"
unless the owner's "failure to guard or warn against a dangerous
condition, use, structure or activity" was "willful and wanton."
Ill. Rev. Stat. 1985, ch. 70, pars. 33, 36.
We hold as a matter of law that the Snowmobile Act provides
defendants with immunity from a negligence suit based on the
undisputed factual circumstances presented by the parties and that
summary judgment was correctly entered for defendants. The
depositions, pleadings, and affidavits show that, during the winter
of 1992-93, the Antioch Snowmobile Drag Racing Association
(Association) sponsored snowmobile races on the frozen surface of
Channel Lake, adjacent to Playtime. Association members paid either
a seasonal or a daily membership fee (the most recent daily fee
being $5). There was also an entry fee of $20 to $25 to be paid to
participate in a race on a given day. The fee had to be paid to use
the track area during organized races. A person who did not pay in
the morning when there was no race could still use that area of the
lake. The Association had spectators' liability but not general
liability insurance. The drivers held a meeting before each race.
According to his deposition, Waszak volunteered his time to
plow the racetrack when it snowed. He had plowed the track area
sometime prior to February 6, 1993, the date of the accident. There
were cones placed on the snowbanks on each side of the plowed area,
but no drag race lanes were laid out that day with a start line and
a finish line. The Association also owned a scoring building paid
for with funds from the membership fees; the public address system's
external speakers were not mounted. There were no organized drag
races that day, because they were cancelled by 11 a.m. for lack of
registered participants. Registration was from 9 a.m. to 11 a.m.,
and the races were ordinarily held at noon. The track was not set
up that day. However, there were snowmobiles going up and down the
plowed area. Waszak opined that, judging from where plaintiff
landed and was injured, he was too close to the snowbank and was in
the safety zone, an area to the side of the track that is kept free
of spectators and racers.
The dragstrip was 660 feet long by 120 feet wide and had 4
lanes. A cone would be placed about every 100 feet. When the
course was set up for a race, at the end of the 660-foot track,
there would be two metal signs set into the ice that marked the
finish line. At the starting line there would be a "Christmas tree"
device belonging to the Association; the tree had lights that were
triggered to signal the start of the race. The metal signs were not
in place on February 6. Races were held on February 7, and
the Association charged membership and entry fees on that date. The
entry fees were used for the purse money. The races required a
permit from the Lake County building and zoning department. The
permit was obtained at the beginning of the season, and the
Association paid the $25 permit fee for each race.
In his partial deposition included in this record, plaintiff
testified that, just before the accident, he was making a second
practice run down the track and was going 85 to 90 miles per hour
at the finish line. He was in the middle of a lane and saw about
20 feet ahead of him a pile of frozen snow about 5 inches high that
looked like a volleyball with half of the air out of it. He stated
that the length of the course was 660 feet and that there was also
another 600- to 700-foot shutdown (slowdown) area. It was a straight
course. Plaintiff's affidavit states in part that he was injured
in a practice run on February 6, 1993, and had not paid the entry
fee for the snowmobile races. The accident report showed that the
accident occurred at about 2:30 p.m. on that date.
The gist of plaintiff's argument is that the immunities
provided by the Snowmobile Act and the Recreational Use Act do not
apply to defendants because participants would have had to pay a fee
had the race not been cancelled. Despite plaintiff's failure to pay
the fee, he nevertheless claims that the immunities still do not
apply where defendants generally charged a fee to users. This
argument presumes that the defendants are occupants of the premises
for the purposes of the immunities in question because they used or
exercised a sufficient degree of control over the premises in
preparing the area and in requiring fees for its use. Plaintiff
does not dispute this occupant classification but instead appears
to rely on defendants' relationship as occupiers of the premises in
arguing that the immunities do not apply.
The plain language of section 5--1(I) of the Snowmobile Act
(625 ILCS 40/5--1(I) (West 1992)), which is specifically directed
at snowmobiling activities, shields defendants from a negligence
suit by this plaintiff. That section provides:
"Notwithstanding any other law to the contrary, an owner,
lessee, or occupant of premises owes no duty of care to keep
the premises safe for entry or use by others for snowmobiling,
or to give warning of any condition, use, structure, or
activity on such premises. This subsection does not apply
where permission to snowmobile is given for a valuable
consideration other than to this State, any political
subdivision or municipality thereof ***. *** Nothing in this
section limits in any way liability which otherwise exists for
willful or malicious failure to guard or warn against a
dangerous condition, use, structure, or activity." 625 ILCS
40/5--1(I) (West 1992).
In upholding the constitutionality of an earlier, identical
version of this provision, our supreme court cited with favor the
principle that, under its police power, which extends to matters in
the interest of the public welfare or convenience, the State may
impose by statute a different duty or degree of care towards others,
and the court noted that the distinction between the duty imposed
in the case of the gratuitous performance of services and the
performance of them for hire is found running through many fields
of law. Ostergren v. Forest Preserve District, 104 Ill. 2d 128, 133
(1984). The court upheld the legislature's different standard of
care for tort liability in snowmobile accidents due to the inherent
danger of snowmobile operation on private and public property.
Ostergren, 104 Ill. 2d at 133. The court pointed out that the
statute restricts the liability of landowners who would otherwise
have to undertake massive repairs to make the property safe for
snowmobiling and that forest preserves and parks would otherwise
have to be devoid of various common objects and equipment that could
upset a speeding snowmobile. Ostergren, 104 Ill. 2d at 134.
We believe the legislature may properly allocate tort liability
based on its determination that some parties are more capable than
others of assuming the financial risks involved in providing
premises for recreational purposes--such as those who profit
directly from the recreational use of the premises or have financial
incentives to improve the property for that purpose. The payment
of a fee to engage in snowmobiling changes the legal relationship
of the parties in connection with the premises. See Moon v. Smith,
276 Ill. App. 3d 958, 963 (1995); Garfield v. United States, 297 F. Supp. 891, 899 (W.D. Wis. 1969) (discussing common-law
classifications of those entering premises).
In this case, the legislature has properly determined that the
gratuitous use of the premises for the inherently dangerous sport
of snowmobiling should not expose an owner, lessor, or occupant to
expansive liability. The dangers of snowmobiling are common
knowledge. We do not concur with the Phillips court's reservations
concerning the wisdom of the legislature in this regard, where the
court stated: "We do not believe there is any legislative purpose
or public policy to be served by making a distinction between paying
and nonpaying users of the defendant's property." Phillips, 238
Ill. App. 3d at 517. We decline to follow Phillips on this point.
Section 5--1(I) of the Snowmobile Act clearly excuses the
landowner's or the occupants's duty to remove artificially created
conditions such as ice and snow from the property and eliminates the
duty to warn snowmobilers about anything on the land--subject of
course to the stated exceptions. See Moon, 276 Ill. App. 3d at 963.
Plaintiff did not pay any fee to use the property that defendants
had prepared for snowmobiling. As the use of the area was
gratuitous, the clear language of the statute immunizes defendants
from an action sounding in negligence. Moon, 276 Ill. App. 3d at
965, 970; see Garfield, 297 F. Supp. at 902 (under analogous
Wisconsin recreational use statute, defendant was not liable for
injury to plaintiff who had entered military reservation without
paying valuable consideration).
The parties have presented no genuine issues of triable fact,
and we conclude that defendants were entitled to judgment as a
matter of law. See Purtill v. Hess, 111 Ill. 2d 229, 240 (1986).
We see no basis to create judicially an exception to the
snowmobiling immunity provision for situations where a plaintiff
might have but did not pay valuable consideration. See Moon, 276
Ill. App. 3d at 970. As this statutory immunity, granted
specifically with respect to snowmobiling, was sufficient in itself
to bar the plaintiff's suit against defendants, we need not decide
whether defendants were also shielded under the broader provisions
of the Recreational Use Act.
The judgment of the circuit court of Lake County is affirmed.
Affirmed.
GEIGER, P.J., and RATHJE, J., concur.