Burlingame v. Chicago Park District
Annotate this Case
SECOND DIVISION
December 23, 1997
No. 1-96-1527
NANCY BURLINGAME and ROBERT BURLINGAME, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellants, ) Cook County.
)
v. )
)
CHICAGO PARK DISTRICT, ) Honorable
) Patrick E. McGann,
Defendant-Appellee. ) Judge Presiding.
PRESIDING JUSTICE MCNULTY delivered the opinion of the court:
In this case the court once again confronts the issue of the
distinction between negligence and willful and wanton misconduct.
We agree with the trial court that the evidence here cannot support
a finding of willful and wanton misconduct.
On April 19, 1991, Nancy Burlingame tripped and fell while
walking on a broken sidewalk that the Chicago Park District owned.
Nancy and her husband, Robert Burlingame, sued the park district for
willful and wanton misconduct which caused Nancy's injuries and
Robert's loss of consortium.
In response to defendant's motion for summary judgment,
plaintiffs presented the affidavit of Lynell Price, who swore that
in 1985 she tripped on a different break in the sidewalk, about 300
feet from the break on which Nancy tripped. Earsie Agnew swore that
in 1986 she injured herself in a fall caused by yet another crack,
hundreds of feet away from the sites of both Nancy's and Price's
falls. In 1989 Norma Turrill fell on a break about 75 feet from the
spot of Nancy's fall. Defendant learned of Price's and Agnew's
falls at latest when they sued defendant; plaintiffs presented a
letter from 1989 that informed defendant of Turrill's injury.
Plaintiffs found no other person who tripped on the same break that
caused Nancy's fall.
Plaintiffs alleged that more than 1 million people use this
stretch of sidewalk each year. An architect who examined the
sidewalk found about a three-inch change in the height of the
walking surface from the bottom of the break to the sidewalk. He
considered the sidewalk's condition unreasonably dangerous.
The trial court held that defendant's failure to repair the
entire stretch of sidewalk in light of the prior complaints might
constitute negligence, but it did not rise to the level of willful
and wanton misconduct. Plaintiffs appeal from the trial court's
decision to grant defendant summary judgment. The sole issue on
appeal is whether evidence that defendant failed to repair all
significant cracks in that stretch of the sidewalk, after three
people notified defendant they tripped on other cracks in that
stretch, could support a finding of willful and wanton misconduct.
Under the Local Governmental and Governmental Employees Tort
Immunity Act (the Act) (Ill. Rev. Stat. 1991, ch. 85, par. 1-101 et
seq.), the park district is not liable for injuries due to
conditions on its property used for recreation unless it is guilty
of "willful and wanton conduct." Ill. Rev. Stat. 1991, ch. 85, par.
3-106. The 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." Ill. Rev. Stat.
1991, ch. 85, par. 1-210.
Our supreme court has explained:
"[T]he label 'willful and wanton conduct' has
developed in this State as a hybrid between acts
considered negligent and behavior found to be
intentionally tortious. This hybrid character of willful
and wantonness is reflected in case law decisions of this
State, which have recognized that willful and wanton acts
share many similar characteristics with acts of ordinary
negligence. *** In view of the fact that it is a matter
of degree, a hard and thin line definition should not be
attempted[.] [Citation.] Under the facts of one case,
willful and wanton misconduct may be only degrees more
than ordinary negligence, while under the facts of
another case, willful and wanton acts may be only degrees
less than intentional wrongdoing." Ziarko v. Soo Line
R.R. Co., 161 Ill. 2d 267, 275-76, 641 N.E.2d 402 (1994).
Thus, for plaintiffs to recover here, they must present evidence
that could support a finding that defendant's failure to repair the
sidewalk constitutes misconduct some degrees more culpable than
ordinary negligence.
When a plaintiff charges a landowner with ordinary negligence
in permitting unreasonably dangerous conditions on the land, the
court must balance the likelihood of injury and the gravity of the
threatened injury against the burden of guarding against the injury
and the consequences of placing that burden on the defendant. Ward
v. Community Unit School District No. 220, 243 Ill. App. 3d 968,
973, 614 N.E.2d 102 (1993); Resag v. Washington National Insurance
Co., 90 Ill. App. 3d 971, 414 N.E.2d 107 (1980). Our General
Assembly has explicitly required this kind of balancing for charges
of negligent failure to maintain public property in a reasonably
safe condition. 745 ILCS 10/3-102(b)(1) (West 1996). The Act
directs the court to consider whether the condition that caused
injury would be
"discovered by an inspection system that was reasonably
adequate considering the practicability and cost of
inspection weighed against the likelihood and magnitude
of the potential danger to which failure to inspect would
give rise." 745 ILCS 10/3-102(b)(1) (West 1996).
We find that this approach can provide useful guidance for
charges of willful and wanton misconduct: a failure to repair a
dangerous condition may constitute negligence whenever the
likelihood of severe injury outweighs the burden of preventing
injury, but the same failure constitutes willful and wanton
misconduct only if the balance is especially one-sided, as where the
likelihood of severe injury is particularly great or the burden of
preventing injury is patently small. Only in cases of such severe
imbalances could the failure to act shock the conscience in the
manner of willful and wanton misconduct. See Oravek v. Community
School District 146, 264 Ill. App. 3d 895, 900, 637 N.E.2d 554
(1994).
Here, plaintiffs showed three prior incidents involving a
stretch of sidewalk about one-quarter of a mile in length; they
found no evidence of an injury due to the same break. Considering
the amount of traffic, the proof of four injuries over a six year
period reflects a very small likelihood of injury to any given
individual, but the likelihood of some injury to at least one person
appears to be substantial. The injuries incurred at walking speed
and at ground level will generally be quite minor, although some
pedestrian may suffer relatively severe harm.
To prevent this injury, after receiving notice of the prior
injuries at other points on the stretch of sidewalk, defendant would
have needed to inspect the site of each injury and repair not only
the break that caused the injury but also any other substantial
defect within several hundred feet of the break. The cost of such
a program for all of the sidewalks the park district owns may be
quite substantial. Similarly, the cost of a regular inspection
program sufficient to discover any dangerous cracks in sidewalks the
park district owns, without any prior complaints or injuries, may
be prohibitive. Due to the burdensome cost, the law does not
require defendant to keep all sidewalks in perfect condition at all
times. Repinski v. Jubilee Oil Co., 85 Ill. App. 3d 15, 20, 405 N.E.2d 1383 (1980). Leaving breaks in a sidewalk with height
variances up to one inch may not even constitute negligence.
Repinski, 85 Ill. App. 3d at 20.
Plaintiffs suggest that the prior injuries show that the entire
stretch of sidewalk had degenerated and needed replacement. But
then the park district would need to incur the cost of placing an
entirely new sidewalk at least whenever three accidents occur in a
one-quarter mile stretch of sidewalk within a five-year period.
Again, the cost of such a program could be considerable,
discouraging the park district from adding sidewalks or other
improvements on park land for fear of incurring greater liability.
This is precisely the result the Act is designed to prevent. Ozuk
v. River Grove Board of Education, 281 Ill. App. 3d 239, 243, 666 N.E.2d 687 (1996).
We hold that the evidence in this case cannot support a finding
of willful and wanton conduct, because the balance of the burdens
does not demonstrate that the likelihood of severe injury clearly
outweighs by a large margin the burden of preventing injury. The
court should grant summary judgment on undisputed facts only if
reasonable persons would not draw divergent inferences from those
facts. Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 586 N.E.2d 1211 (1992). No reasonable person could find that
the failure to make repairs here, or replace the entire sidewalk,
constituted willful and wanton misconduct, even if some persons
might find the failure negligent. See Pomaro v. Community
Consolidated School District 21, 278 Ill. App. 3d 266, 268, 662 N.E.2d 438 (1995) (and cases discussed therein). The trial court's
decision granting defendant summary judgment is affirmed.
Affirmed.
RAKOWSKI and TULLY, JJ., concur.
December 23, 1997
No. 1-96-1527
NANCY BURLINGAME and ROBERT BURLINGAME, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellants, ) Cook County.
)
v. )
)
CHICAGO PARK DISTRICT, ) Honorable
) Patrick E. McGann,
Defendant-Appellee. ) Judge Presiding.
PRESIDING JUSTICE MCNULTY delivered the opinion of the court:
In this case the court once again confronts the issue of the
distinction between negligence and willful and wanton misconduct.
We agree with the trial court that the evidence here cannot support
a finding of willful and wanton misconduct.
On April 19, 1991, Nancy Burlingame tripped and fell while
walking on a broken sidewalk that the Chicago Park District owned.
Nancy and her husband, Robert Burlingame, sued the park district for
willful and wanton misconduct which caused Nancy's injuries and
Robert's loss of consortium.
In response to defendant's motion for summary judgment,
plaintiffs presented the affidavit of Lynell Price, who swore that
in 1985 she tripped on a different break in the sidewalk, about 300
feet from the break on which Nancy tripped. Earsie Agnew swore that
in 1986 she injured herself in a fall caused by yet another crack,
hundreds of feet away from the sites of both Nancy's and Price's
falls. In 1989 Norma Turrill fell on a break about 75 feet from the
spot of Nancy's fall. Defendant learned of Price's and Agnew's
falls at latest when they sued defendant; plaintiffs presented a
letter from 1989 that informed defendant of Turrill's injury.
Plaintiffs found no other person who tripped on the same break that
caused Nancy's fall.
Plaintiffs alleged that more than 1 million people use this
stretch of sidewalk each year. An architect who examined the
sidewalk found about a three-inch change in the height of the
walking surface from the bottom of the break to the sidewalk. He
considered the sidewalk's condition unreasonably dangerous.
The trial court held that defendant's failure to repair the
entire stretch of sidewalk in light of the prior complaints might
constitute negligence, but it did not rise to the level of willful
and wanton misconduct. Plaintiffs appeal from the trial court's
decision to grant defendant summary judgment. The sole issue on
appeal is whether evidence that defendant failed to repair all
significant cracks in that stretch of the sidewalk, after three
people notified defendant they tripped on other cracks in that
stretch, could support a finding of willful and wanton misconduct.
Under the Local Governmental and Governmental Employees Tort
Immunity Act (the Act) (Ill. Rev. Stat. 1991, ch. 85, par. 1-101 et
seq.), the park district is not liable for injuries due to
conditions on its property used for recreation unless it is guilty
of "willful and wanton conduct." Ill. Rev. Stat. 1991, ch. 85, par.
3-106. The 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." Ill. Rev. Stat.
1991, ch. 85, par. 1-210.
Our supreme court has explained:
"[T]he label 'willful and wanton conduct' has
developed in this State as a hybrid between acts
considered negligent and behavior found to be
intentionally tortious. This hybrid character of willful
and wantonness is reflected in case law decisions of this
State, which have recognized that willful and wanton acts
share many similar characteristics with acts of ordinary
negligence. *** In view of the fact that it is a matter
of degree, a hard and thin line definition should not be
attempted[.] [Citation.] Under the facts of one case,
willful and wanton misconduct may be only degrees more
than ordinary negligence, while under the facts of
another case, willful and wanton acts may be only degrees
less than intentional wrongdoing." Ziarko v. Soo Line
R.R. Co., 161 Ill. 2d 267, 275-76, 641 N.E.2d 402 (1994).
Thus, for plaintiffs to recover here, they must present evidence
that could support a finding that defendant's failure to repair the
sidewalk constitutes misconduct some degrees more culpable than
ordinary negligence.
When a plaintiff charges a landowner with ordinary negligence
in permitting unreasonably dangerous conditions on the land, the
court must balance the likelihood of injury and the gravity of the
threatened injury against the burden of guarding against the injury
and the consequences of placing that burden on the defendant. Ward
v. Community Unit School District No. 220, 243 Ill. App. 3d 968,
973, 614 N.E.2d 102 (1993); Resag v. Washington National Insurance
Co., 90 Ill. App. 3d 971, 414 N.E.2d 107 (1980). Our General
Assembly has explicitly required this kind of balancing for charges
of negligent failure to maintain public property in a reasonably
safe condition. 745 ILCS 10/3-102(b)(1) (West 1996). The Act
directs the court to consider whether the condition that caused
injury would be
"discovered by an inspection system that was reasonably
adequate considering the practicability and cost of
inspection weighed against the likelihood and magnitude
of the potential danger to which failure to inspect would
give rise." 745 ILCS 10/3-102(b)(1) (West 1996).
We find that this approach can provide useful guidance for
charges of willful and wanton misconduct: a failure to repair a
dangerous condition may constitute negligence whenever the
likelihood of severe injury outweighs the burden of preventing
injury, but the same failure constitutes willful and wanton
misconduct only if the balance is especially one-sided, as where the
likelihood of severe injury is particularly great or the burden of
preventing injury is patently small. Only in cases of such severe
imbalances could the failure to act shock the conscience in the
manner of willful and wanton misconduct. See Oravek v. Community
School District 146, 264 Ill. App. 3d 895, 900, 637 N.E.2d 554
(1994).
Here, plaintiffs showed three prior incidents involving a
stretch of sidewalk about one-quarter of a mile in length; they
found no evidence of an injury due to the same break. Considering
the amount of traffic, the proof of four injuries over a six year
period reflects a very small likelihood of injury to any given
individual, but the likelihood of some injury to at least one person
appears to be substantial. The injuries incurred at walking speed
and at ground level will generally be quite minor, although some
pedestrian may suffer relatively severe harm.
To prevent this injury, after receiving notice of the prior
injuries at other points on the stretch of sidewalk, defendant would
have needed to inspect the site of each injury and repair not only
the break that caused the injury but also any other substantial
defect within several hundred feet of the break. The cost of such
a program for all of the sidewalks the park district owns may be
quite substantial. Similarly, the cost of a regular inspection
program sufficient to discover any dangerous cracks in sidewalks the
park district owns, without any prior complaints or injuries, may
be prohibitive. Due to the burdensome cost, the law does not
require defendant to keep all sidewalks in perfect condition at all
times. Repinski v. Jubilee Oil Co., 85 Ill. App. 3d 15, 20, 405 N.E.2d 1383 (1980). Leaving breaks in a sidewalk with height
variances up to one inch may not even constitute negligence.
Repinski, 85 Ill. App. 3d at 20.
Plaintiffs suggest that the prior injuries show that the entire
stretch of sidewalk had degenerated and needed replacement. But
then the park district would need to incur the cost of placing an
entirely new sidewalk at least whenever three accidents occur in a
one-quarter mile stretch of sidewalk within a five-year period.
Again, the cost of such a program could be considerable,
discouraging the park district from adding sidewalks or other
improvements on park land for fear of incurring greater liability.
This is precisely the result the Act is designed to prevent. Ozuk
v. River Grove Board of Education, 281 Ill. App. 3d 239, 243, 666 N.E.2d 687 (1996).
We hold that the evidence in this case cannot support a finding
of willful and wanton conduct, because the balance of the burdens
does not demonstrate that the likelihood of severe injury clearly
outweighs by a large margin the burden of preventing injury. The
court should grant summary judgment on undisputed facts only if
reasonable persons would not draw divergent inferences from those
facts. Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 586 N.E.2d 1211 (1992). No reasonable person could find that
the failure to make repairs here, or replace the entire sidewalk,
constituted willful and wanton misconduct, even if some persons
might find the failure negligent. See Pomaro v. Community
Consolidated School District 21, 278 Ill. App. 3d 266, 268, 662 N.E.2d 438 (1995) (and cases discussed therein). The trial court's
decision granting defendant summary judgment is affirmed.
Affirmed.
RAKOWSKI and TULLY, JJ., concur.
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