Dinelli v. County of Lake

No. 2--97--0288



IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

FRANK DINELLI and CAROL DINELLI, ) Appeal from the Circuit Court
) of Lake County.
Plaintiffs-Appellants, )
)
v. ) No. 95--L--448
)
)
COUNTY OF LAKE, ) Honorable
) Charles F. Scott,
Defendant-Appellee. ) Judge, Presiding.

PRESIDING JUSTICE GEIGER delivered the opinion of the court:
The plaintiffs, Frank Dinelli and Carol Dinelli, appeal from
the February 19, 1997, order of the circuit court of Lake County
dismissing their complaint against the defendant, County of Lake
(the County). The complaint alleged that the County was negligent
and willful and wanton in its design and maintenance of a midblock
bicycle trail crosswalk. Plaintiff Frank Dinelli was struck and
injured by a motor vehicle while walking his bicycle across the
crosswalk. The trial court found that the crosswalk had been
intended for recreational use and therefore concluded that the
County was immune from liability pursuant to section 3--106 of the
Local Governmental and Governmental Employees Tort Immunity Act
(the Act) (745 ILCS 10/3--106 (West 1996)). The trial court also
found that the plaintiffs allegations were insufficient to state
a cause of action for willful and wanton conduct. We affirm.
In their second amended complaint, the plaintiffs allege that,
on September 23, 1994, Frank Dinelli was riding his bicycle in an
easterly direction along the North Shore Bicycle Path (NSBP) in
Libertyville. The NSBP is a system of interconnected bicycle
pathways in Lake County which utilizes abandoned railroad right-of-
ways. In 1994, the NSBP included a midblock crosswalk across
Butterfield Road, approximately 240 feet south of the intersection
of Butterfield Road and Illinois Route 176. This crosswalk was
allegedly designed and maintained by the County. Street signs at
the crosswalk warn motorists on Butterfield Road where the NSBP
crosses the road.
As the plaintiff attempted to ride his bicycle across the
crosswalk, he was struck by a northbound vehicle being driven by
Louise Rejc. According to witness Albert Stannard, at the time
that the plaintiff attempted to cross the crosswalk, northbound
traffic on Butterfield Road was stopped for a red light at the
intersection of Illinois Route 176 and was backed up to a point
south of the crosswalk. Stannard testified that the plaintiff
entered the crosswalk and proceeded to cross Butterfield Road while
the northbound traffic remained stopped. As the plaintiff was
crossing the southbound lane, he was struck by Rejc s vehicle.
Rejc was allegedly traveling northbound in the southbound lane in
order to more quickly reach the left-turn lane at the intersection
with Illinois Route 176. As a result of the collision, the
plaintiff suffered a broken hip, a broken pelvis, three fractured
ribs, and other internal injuries requiring hospitalization for
over six weeks.
Counts I and II of the plaintiffs second amended complaint
alleged that the County was negligent in its design and maintenance
of the NSBP s midblock crosswalk on Butterfield Road. In counts
III and IV, the plaintiffs alleged that the County s conduct in
designing and maintaining the crosswalk had been willful and
wanton. Specifically, the plaintiffs alleged that the County (1)
failed to use traffic and pedestrian counts in deciding where to
place the crosswalk; (2) located the crosswalk in a high volume
area; (3) installed the crosswalk without the recommendation of the
county engineer; and (4) failed to design or plan the crosswalk in
accordance with guidelines set forth in the Manual of Uniform
Traffic Controls. In counts I and III, Frank Dinelli sought relief
for his personal injuries; in counts II and IV, Carol Dinelli
sought relief for the loss of her husband s services, society,
companionship, and conjugal relationship.
On July 17, 1996, the County filed a motion for summary
judgment as to counts I and II of the plaintiffs second amended
complaint. In its motion, the County asserted that the crosswalk
was part of the NSBP and intended for recreational use. As such,
the County argued that it was immune from liability pursuant to
section 3--106 of the Act (745 ILCS 10/3--106 (West 1996)).
Attached to the motion was the affidavit of Martin Buehler, the
county engineer for Lake County. In his affidavit, Buehler stated
that the NSBP included the crosswalk across Butterfield Road.
Buehler also averred that the NSBP, including the crosswalk, was
intended and permitted to be used by the citizens of Lake County
for recreational purposes.
On September 18, 1996, the trial court denied the County s
motion for summary judgment. On September 26, 1996, the County
filed a motion requesting the trial court to reconsider its ruling.
The County also filed a motion to dismiss counts III and IV of the
second amended complaint on the ground that the allegations were
insufficient to support an action for willful and wanton conduct.
On October 23, 1996, the trial court granted the motion to
reconsider and entered summary judgment on behalf of the County as
to counts I and II. On the same date, the trial court also granted
the County s motion to dismiss counts III and IV. In granting the
motion to dismiss, the trial court gave the plaintiffs leave to
file an amended complaint.
On January 9, 1997, the trial court granted the plaintiffs
leave to file a fourth amended complaint. Counts I and II
contained the same negligence allegations that were the basis of
the earlier motion for summary judgment. Counts III and IV again
alleged willful and wanton conduct and contained the following
additional allegations: (1) that the County encouraged pedestrians
to use the midblock crosswalk without the use of active traffic
control devices on a roadway where the average daily traffic volume
exceeded 20,000; (2) that the County failed to exclusively utilize
the pedestrian crosswalks with active traffic control devices at
the intersection of Butterfield Road and Illinois Route 176; and
(3) that the County failed to remove the crosswalk after becoming
aware of another incident in which a user of the crosswalk was
struck by a motorist on Butterfield Road.
On January 22, 1997, the County filed a motion to dismiss the
fourth amended complaint. The County argued that counts I and II
had already been ruled upon and were barred under the doctrine of
res judicata. As to counts III and IV, the County again argued
that the allegations were insufficient to demonstrate willful and
wanton conduct.
On February 19, 1997, following a hearing, the trial court
dismissed the plaintiffs fourth amended complaint. Following the
plaintiffs election to stand upon their fourth amended complaint,
they filed a timely notice of appeal.
The plaintiffs first contention on appeal is that the trial
court erred in entering summary judgment on behalf of the County as
to counts I and II. The plaintiffs argue that the County was not
immunized under section 3--106 of the Act as the crosswalk was not
intended to be used recreationally. Rather, the plaintiffs argue
that the crosswalk was intended as a traffic control device for the
protection of pedestrians crossing Butterfield Road. As such, the
plaintiffs conclude that the County owed them a duty of ordinary
care in designing and maintaining the crosswalk.
Summary judgment is proper if "the pleadings, depositions, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law." 735
ILCS 5/2--1005(c) (West 1996). An order granting summary judgment
should be reversed if the evidence shows that a genuine issue of
material fact exists or if the judgment was incorrect as a matter
of law. In re Estate of Herwig, 237 Ill. App. 3d 737, 741 (1992).
The disposition of a summary judgment motion is not discretionary,
and the standard of review is de novo. Quinton v. Kuffer, 221 Ill.
App. 3d 466, 471 (1991).
Section 3--106 of the Act provides as follows:
Neither a local public entity nor a public employee is
liable for an injury where the liability is based on the
existence of a condition of any public property intended or
permitted to be used for recreational purposes, including but
not limited to parks, playgrounds, open areas, buildings or
other enclosed recreational facilities, unless such local
entity or public employee is guilty of willful and wanton
conduct proximately causing such injury. 745 ILCS 10/3--106
(West 1996).
Pursuant to this language, Illinois courts have held that
municipalities are immune from liability for injuries occurring on
public property that is intended or permitted to be used for
recreational purposes, regardless of the primary purpose of the
property. See Bubb v. Springfield School District 186, 167 Ill. 2d 372, 380-81 (1995). The applicability of section 3--106 is not
solely dependent on whether the plaintiff was actively engaged in
recreational activity at the time of the injury. Annen v. Village
of McNabb, 192 Ill. App. 3d 711, 713 (1990). Moreover, section 3--
106 may apply to injuries occurring upon nonrecreational facilities
or structures that increase the usefulness of public property
intended or permitted to be used for recreational purposes.
Sylvester v. Chicago Park District, No. 81138, slip op. at 7 (Ill.
December 4, 1997).
In Sylvester v. Chicago Park District, No. 81138 (Ill.
December 4, 1997), our supreme court considered whether section 3--
106 immunized the Chicago Park District from liability for injuries
suffered by a pedestrian who tripped over a concrete parking
abutment in a Chicago Park District parking lot. At the time of
her fall, the pedestrian was walking through the parking lot en
route to a Bears game at Soldier Field. Sylvester, slip op. at 2.
Although the supreme court acknowledged that the walkways and
parking lots adjacent to Soldier Field were not primarily
recreational, it noted that Soldier Field had a recreational
purpose and that such facilities increased its usefulness.
Sylvester, slip op. at 7. The court explained:
Thus, under section 3--106 as amended, it is the
character of the property as a whole that determines whether
immunity applies. [Citation.] In this case, an examination of
the property as a whole indicates that the parking lot in
which plaintiff fell was an integral part of the Soldier Field
recreational facility. Sylvester, slip op. at 8.
The supreme court therefore concluded that the Chicago Park
District was immune from the plaintiff s suit pursuant to section
3--106. Sylvester, slip op. at 11.
Numerous other appellate opinions have reached similar
conclusions. In Annen v. Village of McNabb, 192 Ill. App. 3d 711,
712 (1990), the plaintiff was injured when a sink fell from the
wall in a park restroom. The reviewing court held that, even
though the restroom facility was not intended to be used for
recreational purposes, it increased the usefulness of the park.
Annen, 192 Ill. App. 3d at 713. The court therefore concluded that
section 3--106 immunized the municipality from liability. Annen,
192 Ill. App. 3d at 713; see also Conoway v. Hanover Park Park
District, 277 Ill. App. 3d 896, 900 (1996) (plaintiff was barred
from recovery when injured as a result of falling into a drainage
ditch in a park); Lewis v. Jasper County Community Unit School
District No. 1, 258 Ill. App. 3d 419, 423 (1994) (plaintiff was
barred from recovery when injured as a result of falling against
a pumphouse located on a school playground); Kirnbauer v. Cook
County Forest Preserve District, 215 Ill. App. 3d 1013, 1022-23
(1991) (plaintiff was barred from recovery when injured by a cable
barricade restricting entry to a forest preserve access road).
On the basis of such authorities, as well as the evidence
presented in the instant case, we conclude that the crosswalk was
part of the NSBP system which was designed and implemented for
recreational purposes. In his affidavit, County Engineer Martin
Buehler testified that the crosswalk was part of the NSBP and that
the NSBP was intended and permitted to be used by the citizens of
Lake County for recreational uses. Even if the crosswalk itself
was not intended for recreational use, it was nonetheless intended
as a means to cross Butterfield Road for bicyclists and other
pedestrians using the NSBP. As such, the crosswalk certainly
increased the usefulness of the NSBP. See Sylvester, slip op. at
7. We therefore conclude that the crosswalk falls within the
immunity provided by section 3--106.
In so ruling, we find Wojdyla v. City of Park Ridge, 148 Ill. 2d 417 (1992) distinguishable. In that case, our supreme court
held that municipalities could be charged with liability for
pedestrian injuries occurring in marked crosswalks. Wojdyla, 148 Ill. 2d at 426. The court noted that, for purposes of section 3--
102(a) of the Act, pedestrians were owed a duty of care as intended
users of the crosswalk. Wojdyla, 148 Ill. 2d at 426. Unlike
Wojdyla, however, the instant case concerns the applicability of
section 3--106 rather than section 3--102(a). The crosswalk herein
does not connect two pedestrian sidewalks but instead connects a
contiguous bike path. Unlike a normal crosswalk, which is simply
intended to aid pedestrians in crossing a roadway, this particular
crosswalk permits users of the NSBP to continue to engage in
recreational activity. We therefore conclude that Sylvester,
rather than Wojdyla, controls our resolution of the instant case,
and we hold that the trial court properly entered judgment in favor
of the County as to counts I and II of the plaintiffs second
amended complaint. As these counts were subsequently realleged in
the plaintiffs fourth amended complaint, it was proper for the
trial court to dismiss them.
The plaintiffs second contention on appeal is that the trial
court erred in dismissing counts III and IV of their fourth amended
complaint alleging willful and wanton conduct. The plaintiffs
argue that these counts alleged sufficient facts to demonstrate
that the County was aware of the dangerous condition posed by the
midblock crosswalk and subsequently failed to exercise ordinary
care to remedy the danger. Specifically, the plaintiffs alleged
that the County failed to remove the crosswalk after becoming aware
of a prior pedestrian-vehicle collision occurring in the crosswalk.
The plaintiffs conclude that such conduct constitutes an utter
indifference for the safety of others.
Although the County failed to designate whether its motion to
dismiss was brought pursuant to section 2--615 or section 2--619 of
the Code of Civil Procedure (735 ILCS 5/2--615, 2--619 (West
1996)), it is clear from the record that the parties proceeded as
if the motion was brought pursuant to section 2--615. A motion to
dismiss under section 2--615 attacks only the legal sufficiency of
the complaint. Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458,
475 (1991). In ruling on a section 2--615 motion to dismiss, the
trial court should deny the motion unless it appears that no set of
facts can be proved which would entitle the plaintiff to recover.
McGrath v. Fahey, 126 Ill. 2d 78, 90 (1988). In making this
determination, the trial court is to interpret the allegations of
the complaint in the light most favorable to the plaintiff.
McGrath, 126 Ill. 2d at 90.
As noted above, a municipality may be held liable for injuries
occurring on property used for recreational purposes when the
injury is the proximate result of the municipality s willful and
wanton conduct. 745 ILCS 10/3--106 (West 1996). Section 1--210 of
the Act defines willful and wanton conduct as follows:
Willful and wanton conduct *** means 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. 745 ILCS 10/1--210 (West 1996).
In order to sufficiently plead a cause of action for willful
and wanton conduct a plaintiff must allege that a defendant engaged
in a course of action that proximately caused the injury. Lerma
v. Rockford Blacktop Construction Co., 247 Ill. App. 3d 567, 572-73
(1993). A public entity may be found to have engaged in willful
and wanton conduct only if it has been informed of a dangerous
condition, knew others had been injured because of the condition,
or if it intentionally removed a safety device or feature from
property used for recreational purposes. Koltes v. St. Charles Park
District, 293 Ill. App. 3d 171, 178 (1997).
In Lerma v. Rockford Blacktop Construction Co., 247 Ill. App.
3d 567, 568-69 (1993), two children drowned in a river which was
crossed by a dam operated by a park district. The administrator of
the children s estate brought an action against the park district
predicated upon willful and wanton conduct, alleging that the park
district knew of the hazards of the dam and failed to provide
adequate warning or prohibit entry to those entering the river.
Lerma, 247 Ill. App. 3d at 569. This court held that such
allegations were insufficient as they failed to demonstrate a
course of action by the park district showing a deliberate
intention to cause harm. Lerma, 247 Ill. App. 3d at 573. In so
ruling, we noted that the park district s failure to act
constituted nonaction or an omission which did not rise to the
level of willful or wanton conduct. Lerma, 247 Ill. App. 3d at
573.
More recently, in Koltes v. St. Charles Park District, 293
Ill. App. 3d 171, 178-79 (1997), this court again found that a park
district s nonaction did not rise to the level of willful and
wanton conduct. In that case, the plaintiff was injured when she
was struck by an errant golf ball while waiting in a standing
area near the first tee of a golf course owned by a park district.
Koltes, 293 Ill. App. 3d at 173. As in the instant case, the
plaintiff in Koltes alleged that the park district had knowledge of
a prior injury in which another person was struck by an errant golf
ball while standing in the same general area. Koltes, 293 Ill.
App. 3d at 177. We held that the park district s failure to alter
the design of the golf tee or to provide warnings and fencing after
the first incident did not constitute a course of action
showing deliberate intention to cause harm to others or an utter
indifference to the safety of others. Koltes, 293 Ill. App. 3d at
179.
In light of these authorities, we conclude that the County s
alleged misconduct in the instant case did not rise to the level of
willful and wanton. Although the plaintiffs complaint alleges a
prior injury occurring in the crosswalk, it does not plead facts
demonstrating that it had any similarity to the injury suffered
herein; nor was there any allegation that this prior incident was
in any way related to the crosswalk s location or design. The
plaintiffs did not plead facts demonstrating that the County knew
of any other complaints relating to the crosswalk. We conclude
that the County s nonaction did not rise to the level of willful
and wanton conduct showing an utter indifference to the safety of
others. See Lerma, 247 Ill. App. 3d at 573. Additionally, we find
that the plaintiffs remaining allegations relating to the County s
failure to conduct traffic studies or utilize traffic control
devices did not rise to the level of willful and wanton conduct.
Moreover, we find that the plaintiffs authorities are
distinguishable from the case at bar. Unlike the instant case, in
both Scarano v. Town of Ela, 166 Ill. App. 3d 184, 191 (1988) and
Carter v. New Trier East High School, 272 Ill. App. 3d 551, 557
(1995), the plaintiffs alleged multiple prior injuries that
occurred in the same precise manner and as a result of the same
defective condition; the defendants in these cases had also
allegedly received numerous complaints of the dangerous conditions.
In the instant case, the plaintiffs have vaguely alleged only one
prior injury that may or may not have any similarity to Frank
Dinelli s accident. We conclude that such allegations simply do
not demonstrate a course of action by the County and decline to
disturb the trial court s rulings as to these counts.
For the foregoing reasons, the judgment of the circuit court
of Lake County is affirmed.
Affirmed.
INGLIS, J., concurs.
JUSTICE RATHJE, concurring in part and dissenting in part:
While I concur in the majority s affirmance of the trial
court s granting of summary judgment on counts I and II, I must
respectfully dissent from the majority s affirmance of the motion
to dismiss regarding counts III and IV which, in my view,
sufficiently allege willful and wanton misconduct against defendant
regarding the design and maintenance of the subject midblock
crosswalk.
As the majority notes, to successfully allege willful and
wanton misconduct, a plaintiff must allege that the defendant
engaged in a course of action that proximately caused the injury.
Neither the Act nor the cases cited by the majority define course
of action, which apparently is a term of art. Black s Law
Dictionary, Abridged Fifth Edition, and Webster s Third New
International do not list the term course of action. Indeed, the
dissent in Benhart v. Rockford Park District, 218 Ill. App. 3d 554,
560 (1991) referred to the term, using quotation marks.
Here, plaintiffs allege that defendant acted willfully and
wantonly in the following respects:
a. Installed the crosswalk without utilizing pedestrian
volume counts or average daily traffic volume counts;
b. failed to utilize the controlled intersection of
Butterfield Road and 176 and encouraged pedestrians to
cross without the use of active traffic control devices
on the roadway where the average daily traffic volume
exceeded 20,000;
c. encouraged users of the crosswalk to traverse Butterfield
Road at an unsafe location;
d. failed to remove the mid-block crosswalk after becoming
aware of another incident where a user of the crosswalk
was struck by a motorist on Butterfield Road;
e. failed to exclusively utilize the pedestrian crosswalks
with active control devices less than 240 feet from the
mid-block cross.
In essence plaintiffs allege that defendant created an
inherently dangerous situation by designing and maintaining the
crosswalk and did nothing to alter it after becoming aware of an
injury to a person using the crosswalk. These allegations set out
a reckless course of action taken by defendant which, if proved,
would result in defendant s liability to plaintiffs.
The majority takes plaintiffs to task for not more explicitly
describing the alleged incident in which a prior user of the
crosswalk was struck by an automobile. It would appear that the
majority is essentially requiring plaintiffs to prove their case in
the pleadings. The exact nature of the alleged prior accident and
the identity of the person injured are proper subjects for
discovery and are not essential in the pleadings.
Further, the cases cited by the majority are readily
distinguished from the appeal at bar. In Lerma v. Rockford
Blacktop Construction Co., 247 Ill. App. 3d 567 (1993), this court
characterized the defendant park district s conduct as a
nonaction or omission. Lerma, 247 Ill. App. 3d at 573. The
Lerma court concluded that the park district s failure to act upon
alleged knowledge of dangers did not demonstrate a course of
action showing deliberate intention to cause harm or conscious
disregard for the safety of others. Lerma, 247 Ill. App. 3d at
573.
In contrast, the alleged tortious conduct in the instant
appeal involved, in part, actions or commissions on defendant s
part. Most importantly, defendant created and maintained the
allegedly dangerous crosswalk. Moreover, Lerma did not involve
allegations of prior injuries/deaths at the subject location in the
river. Here, defendant was allegedly aware of an accident
involving a motor vehicle and a person using the crosswalk.
In Koltes v. St. Charles Park District, 293 Ill. App. 3d 171
(1997), a case in which defendant s motion for summary judgment had
been granted, this court found that the defendant park district s
nonaction did not rise to the level of willful and wanton conduct.
As discussed above, the instant defendant is alleged to have acted
in willful and wanton manner. Thus, Koltes is distinguishable in
that regard. Further, the Koltes court also focused on the lack of
evidence that the standing area in which plaintiff was situated
subjected her to any more danger than any other area of the golf
course. In the instant appeal, the complaint s allegations
indicate that, if plaintiff was to utilize the bike trail as
intended, he had to use the midblock crosswalk, a circumstance
which presumably subjected him to far greater danger than was
present at other locations on the trail.
If section 1--210 of the Act is to be at all viable, then
causes of action, such as the instant one, must be permitted to
make their way past the pleading stage.