*1 BIALEK, Plaintiff-Appellee, BRUCE v. MORAINE VALLEY COMMUNITY 524, Defendant-Appellant.
COLLEGE SCHOOL DISTRICT (1st Division) First District No. 1 — 92—2237 Opinion filed October 1994. (Jeff Desveaux, counsel), Chicago Goldberg,
Law Offices of James J. appellant. counsel) (Robert Jr., Cooney, Cooney Conway and Robert N. Wad- & J. *2 Chicago, appellee. ington, for both of opinion of the court:
JUSTICE O’CONNOR delivered Defendant, Community College Valley School District Moraine $73,069.12 (Moraine), judgment favor of appeals Bialek, engaged in and finding Moraine plaintiff, Bruce injuries Bialek. which caused wanton conduct 13, 1985, Bialek, goalpost ran on age into On October (broken face injuries to his property Moraine’s and suffered severe (lacerated nose) region). penis gash and in lower abdominal groin and friends, time, game in a with adult Bialek was football At the Donnelly. The men were not autho- including Zieman and Ed John game, they located their nor did premises on which rized to use the had onto game. Bialek and his friends driven supervise the Moraine Ridgeland and campus located at 115th Street Ridgeland Moraine’s play. The area Illinois, up a field on which to Alsip, and set Street a field field. It was between they was not a demarcated football chose size; however, play chose to Bialek and his friends acres in 2 and 15 goal- single, H-shaped steel contained a in a corner of the field which goalpost. upright of the protruded from one post. A metal bracket friends, goal- they did not use the and his According to both Bialek Rather, boundary marker. Al- they it as a used post as a running prior to seeing goalpost not recall though Bialek could it,” players and the other it, "must have seen testified that he into he play. field of post was in their they were aware testified that post. into the His during game, Bialek ran point At some to an hour and one hour the accident occurred friends stated Bialek, only minutes had However, according to game. half into the pass. running to catch a post while with the elapsed when he collided ball, his head toward he turned to receive prepared As he time, his lower At the same into it face-first. goal and crashed fell to the He caught on the metal bracket. groin were abdomen and arranged him and friends went to assist bleeding. Bialek’s ground, for a treatment he underwent nearby hospital, where transport to a penis, in his numerous 10 stitches also received nose. He broken the wound to forehead, to close clamp was used and in his stitches and stayed hospital days for three his abdomen. Bialek weeks. returned work three count
Subsequently, against filed suit Moraine. The first Bialek voluntarily alleging complaint, negligence, of his amended withdrawn because under section 3—106 of Local Governmental (Ill. Immunity Stat. Employees Governmental Tort Act Rev. and not par. seq.), governmental ch. 1—101 et local entities are negligence for alleged liable their recreational fields. Count II campus Moraine was willful and wanton in its maintenance of its (a) dangerous goalpost it failed to remove a condition —the (b) premises; presence bracket —from its it failed to warn of the (c) bracket; pad goalpost of the it failed jury theory this bracket. at trial was instructed on of the case. trial, Moraine, Summer, employees including Eugene At its groundskeeper, Peterson, public safety, chief Lester director of Joseph Farancak, time, campus manager operations its maintaining testified. Summer that he responsible testified surrounding campus. dangerous the field Moraine’s If a condition existed, it responsibility rectify was his He and it. his crew did and, therefore, the goalpost consider to be a reported never it. signs or fixed He also testified there were posted campus informing would-be users fields obtain college’s prior permission to use. Peterson testified that Moraine *3 employed security personnel people. to remove unauthorized Prior to plaintiff, no complained college one had ever goalpost to the that the presented it injury. or that had caused Farancak testified that at campus, Moraine’s main college maintained a football organized, for field, field supervised this goalposts football. On padded protect However, were players who ran into them. neither college, general, the football team Ridgeland nor the used the activities, campus although for athletic independent at least two organizations boys league Oak Lawn soccer and a church —the group purposes. softball the field used for athletic Because —had generally was not used purposes, field for athletic even if Farancak bracket, had been aware of the he not have ordered its removal or padding. case,
At the plaintiff’s close of Moraine moved for a directed finding argued duty its favor. Moraine it owed no and, goal post open furthermore, because the the evidence failed to wanton establish conduct any complaints the school prior injuries had not received about judge ruling. jury The trial suffered structure. reserved The responsible for 45% found Bialek but found that he was post-trial motions which judge Moraine’s injuries. The trial denied verdict. raised, in the motion for directed again, the issues granted its mo- argues trial court should have Moraine that the case because it plaintiff’s the close of the tion for directed verdict at remedy open and obvious condition duty Bialek a did not owe if it did owe Alternatively, contends that premises. the school on its in a willful and establish that it acted duty, such a Bialek failed to upkeep wanton manner its verdict, we view for a directed assessing the denial of a motion light in a inferences and make all reasonable presented
the evidence
the trial court’s
plaintiff. We will overturn
most favorable to the
overwhelmingly
the defendant
so
favored
ruling only if the evidence
La Salle
could stand.
contrary judgment on the evidence
that no
(1984),
Chicago
City
Trust Co. v.
National Bank &
656,
Under section 3—106 Act) (Ill. (Tort Immunity Rev. Stat. Immunity Act Employees Tort tal ordinary 106), liable for 1985, 85, entities are not par. local ch. 3— and athletic fields. parks, playgrounds, negligence upkeep in the ordinary inAs willful and wanton conduct. They only are liable for before cases, duty must owe negligence a defendant was willful conduct allege that the defendant’s plaintiff can (1993), (Lerma Co. Blacktop Construction v. wanton. Rockford (1993), 531, 153 Ill. 2d 571, denied 567, appeal App. 3d 617 N.E.2d is one of the existence of 624 N.E.2d (Kirk Hospital & Michael Reese for this court to decide. law cert, denied Medical Center argues 236,108 Moraine S. Ct. 99 L. Ed. 2d 485 U.S. property on its remedy a condition no that it owed easily could obvious, dangers of which and the adults, child, group of alone a by a let appreciated and avoided that the doc Bialek counters 25-year-old Bialek. including the then v. K supreme court Ward distraction, by our as enunciated trine of conferred Ill. 2d Corp. mart upon Moraine. (136 142-55), negligence Ill. 2d at Corp. v. K mart
In Ward determina applicable to the the standards action, revisited the court ordinary duty of care owes an invitee a landowner of whether tion *4 The court condition. obvious remedy open an or to warn of is condition a that when long-standing rule rejected the protect warn or otherwise obvious, need never a landowner open Rather, held that the court condition. who encounter those arises and obvious condition remedy open an to duty to warn of or a
861
when,
case,
should
under the
"the defendant
facts
anticipate
generally
who are
injury
premises
to those entrants on his
safety,
may
exercising
for their
but who
reason
reasonable care
own
***
af
ably
expected
be
of the condition
to be distracted
Ward,
having momentarily encountered
Indeed, yet analysis no duty court has addressed whether adopted applies to a tort Ward situation in which the landowner’s liability is Although restricted to its willful and Bi- wanton conduct. prior Ward, alek’s to injuries pleadings occurred the decision case, in this as well if appeal, proceeded as briefs on have as pertained. Thus, question. we address this Illinois traditionally analysis courts applied have the same regarding duty remedy open to obvious when condition licensees, trespassers, opposed as to invitees and have been involved. obvious, When is the landowner to has owed (See trespasser duty remedy no to the condition. Good Hansen v. year (1990), Tire & Rubber App. Co. 194 Ill. 3d N.E.2d appeal 376; denied Sumner Hebenstreit our supreme has adopt exceptions court seen fit to rule to that implies
as to invitees exceptions same to the class of entrants land whom only is owed refrain willful and wanton conduct. only willful and wanton case than other this one in which
party
posited
conferring
has even
the doctrine of distraction as
duty Oropeza
v. Board
Education
park
conditions the failure to fill the trenches constituted wanton Oropeza willful and conduct. The emphasized imagine that duty "[w]e cannot that a breach of predicated on the can the doctrine of distraction overcome limitation public only conduct,” on liability entity of a to and wanton willful implying thus that Ward in a and wanton does case. 401.) believe, however, (Oropeza, 3d at that 238 We the law analysis requires duty simply a differ that the of whether exists not for a because the conduct wanton, which defendant is liable is willful and negligent. rather than
Contrary implication Oropeza, in of the the exis duty necessarily legal independent preliminary tence of a of and Thus, application of that causation. theoretical of the distraction the plaintiff predicated doctrine in a case is unrelated to whether has the his or willful It is complaint negligence and wanton conduct. negligence in order plaintiff axiomatic that for a recover or conduct, the willful and wanton he must establish that defendant duty owes a he is that a breach permitted before establish of (Ward, duty injuries. proximate cause of his the 140; Blacktop Co. Lerma v. Construction Rockford appeal denied plaintiff may a jury A be able to convince instance, injury jury a here defendant "caused” his found —for of, pad, was hurt Moraine failed to warn or however, determines, question; in if as remove the this court law, regarding owed no to act matter of Moraine goalpost, injury, cause it be couched terms then the of the whether and wanton ordinary care or terms of willful breach conduct, is irrelevant. open and imposes remedy of care to obvious
Ward reasonably anticipate injury "the should conditions when defendant generally exercising are rea premises on his who those entrants may reasonably be safety, but who sonable care for own (Ward, Ill. 2d One who "should expected to be distracted.” may injury” someone "who be reasonably anticipate might acting be ignores danger expected to be distracted” and plaintiff. we hold that the disregard safety of a conscious alleging in actions analysis legal applies enunciated conduct. willful and wanton held, however, that the reject Bialek’s contention
Having so we Ward, shopper in this is satisfied case. distraction doctrine store, mart store. In order to exit the purchased large mirror at a K glass through doors. outside plaintiff carry had to the mirror Just he was posts. doors stood concrete Because mirror two carrying exited, posts did not see the blocked his view as he he them, acknowledged injuring walked into one of himself. The "subconsciously” having posts way seen into the store 136-37.) (Ward, duty, they finding knew were there. 136 Ill. 2d at circumstances, in such supreme court reasoned that a defendant having premises, essentially shopper onto its should foresee lured from, of, distracted that he be subconsciously only momentarily perhaps which he Conversely, plaintiff voluntarily encountered. Oropeza, carelessly injury. precisely encountered resulted circumstances, In these that a will not heard to claim *6 making duty imposes distraction of his own As a defendant. Oropeza example, aptly by way "[p]laintiff the stated of was not *** in a situation was required where he to encounter risks when he *** injuries.” App. sustained the Oropeza, 238 Ill. 3d at 401. (1993), Lerma v. Blacktop Construction Co. 247 Ill. Rockford 567, 531, App. (1993), 560, 3d appeal 617 N.E.2d 624 denied Ill. 2d 808, boy by a in City drowned a river the leased of Rockford. alleged Plaintiff dumped by that hidden debris into the de river the company, aware, fendant construction the city and of which was dangerous swept boy caused undercurrents to his death. The court held that the distraction was not doctrine satisfied: person generally
"A exercising who is own reasonable care for his safety body recreation, either not enter a does of water for once or it, does not drown because he has become distracted or danger. reasonably of the otherwise obvious it is We believe not entering or occupier person foreseeable to an owner of land that a body of water for recreation would somehowbe distracted Lerma, the fact that he in the App. is water.” 3d at 576. Here, play Bialek and his friends to on decided football field, permission, goalpost Moraine’s without its near the which was by held part not out Moraine as of a football field. Bialek and his up knowledge friends set full that an field with Indeed, danger, all, goalpost, play. bracket and in the field of was part his friends wanted the condition to be Furthermore, game. misleading by Bi contrary their assertion brief, game goalpost. alek around the not "centered” players they as a did not even use the Had Rather, so, they injury might done to Bialek not have occurred. Lerma, the goalpost boundary used as a as well as this court’s marker. 3d Chicago decision Helms v. Park District goal- that Bialek run into 630 N.E.2d instruct did not post, aware, of which he was because he distracted.
Most instructive on the issue of distraction is the court’s reason
ing Vaughn
Richardson
appeal
denied
son, plaintiff picnic property was at on owned defendants. A wa fight approach ter two him ensued. Plaintiff saw friends with balloqn him, balloons, began water and he to Ahead of he saw rose run. stretched, feet, height boundary a cable at a to across a of two three cable, poorly injured of the field. Plaintiff vaulted the but landed his knee. doctrine,
In rejecting plaintiff’s assertion distraction court stressed that doctrine did not situations where plaintiff’s voluntary recreational activities cause him to blind himself dangers that surround him: charge possessors not of land
"The Ward doctrine does with anticipate harm that result from [one’s] Instead, to a or defendants’ inattention known obvious condition. anticipate person’s] they reasonably [a arises where could forgetfulness. Although momentary drawing distraction foreseeable line between mere inattention susceptible precision distraction is mathematical hand, particular a careful facts at the fail requires focus expand a impermissibly make this ure to distinction would liability scope potential unforeseeable dimen Moreover, possessors of land that is imposing sions. plaintiff’s place a burden on premised on inattentiveness would requiring them to insure the possessors of land tantamount 408-09.) (Richardson, safety invitees.” doctrine, Ward, *7 forgetfulness enunciated distraction as mindlessly using an simply plaintiff begins not satisfied (See, v. dangerous Auguste Montgom open e.g., condition. 535.) Thus, 865, 3d N.E.2d ery Ward & Co. 257 Ill. Bialek was football not evidence he was the fact that circumstances, say we cannot that Bialek was Under the distracted. to safety required his own invoke exercising the reasonable care for remedy no had the distraction doctrine.1 Moraine presented by obvious v. 12 holding, are in Burke Roths 1In we caution that we aware that so 429, 522, Mart, supreme Inc. 148 Ill. 2d 593 N.E.2d Liquor child’s negligence comparative to willful wanton comparison of court forbade duty, However, stage case is one at this this conduct. holding in here. part Burke does not causation. Even if Moraine owed a protect plaintiff warn or the goalpost, presented we hold that the evidence Bialek to establish overwhelmingly willful and wanton conduct so favored Moraine that it was entitled to a directed verdict. Defendant’s conduct this case was, worst, at negligent remotely approach does not the level required wanton, Illinois courts have constitute willful as matter of law. Immunity
The Tort Act defines willful and wanton conduct as "a course of action which shows an actual or deliberate intention which, to cause intentional, harm or if not shows an utter disregard indifference to or conscious safety for the of others or (Ill. property.” 85, par. Rev. Stat. ch. 1— conduct, Willful and wanton contemplated as in section 1—210 of the Act, Tort Immunity inadvertence, consists of more than mere incom petence, unskillfulness, or a precautions failure to take to enable the (Burke adequately actor cope possible with a emergency. future Mart, Liquor Rothschild’s Inc. " 522.) Thus, willful and requires wanton conduct a 'conscious action, choice of a course of knowledge either with of the serious danger to others involved in knowledge it or with of facts which ” disclose this any Burke, reasonable man.’ 148 Ill. (Second) quoting Restatement of Torts g, Comment § (1965). at 590 In Dunbar v. Latting (1993), synthesized
the court analyzing recent case law quantum of evi necessary dence to establish willful and wanton conduct: may
"Willful and wanton conduct be found to exist where the public entity local takes no action to correct condition even though it dangerous was informed about the condition and knew persons other previously injured had been because of the Also, condition. public entity may [Citation.] a local engaged found to have in willful and wanton conduct when it intentionally safety removes a prop feature from its recreational erty. However, [Citation.] allegations where there are no facts or to show public entity engaged any that the local intentional act injuries or knew of allegedly other or accidents caused dangerous condition, the public entity conduct of the local does not rise added.) (Emphasis to the level of willful and wanton conduct.”
(Dunbar, The evidence in satisfy synthesized this case does not as standards by the Dunbar court. prior injuries Moraine had no notice of structure, had as a occurred result of the noi did it remove safety Furthermore, features that had been attached to the structure. padded goalposts Moraine on its official football field *8 866 little, anything, in the campus establishes if
located on a different allegation willful and wanton conduct. context of an which, act case, guilty of an omission to In this Moraine was worst, evidence, constituted, negligent conduct for which given (1994), 146 Community v. School District it is not liable. See Oravek (school’s 554 failure to remove 264 Ill. 3d 637 N.E.2d injured may negligent, ramp plaintiff was skateboard on which wanton); City La Salle Foley v. but not willful failing in (city not willful and wanton App. 3d 608 N.E.2d aware and field of which it was repair a rut-filled softball warn of or playing injured his knee while tripped and over which softball). urged that this court’s decision
During argument, plaintiff oral 233 Ill. Chicago v. Park District Muellman in a Moraine acted his contention that supports Muellman, had disagree. and wanton manner. We measuring drainage pipe on a tripped and broken her ankle 3½ removed. diameter, the cover had been from which inches safety had been Furthermore, that cover defendant knew area, replace did not many pipes in the but from removed accident, hidden four to five pipe At the time of the them. mowed however, showed that defendant grass; the evidence inches of would not be pipes to a level which grass around the posed a acknowledging pipes thus gardening equipment, its intentionally presence of their to those unaware hidden risk from this distinguish Muellman facts disregarding the risk. These case. Park Chicago
Indeed, Majewski more akin to this case is much Majewski, 409. In District football on field glass while fallen on plaintiff had broken affirming trial court’s dismissal by the defendant. operated Moraine, which, like action, the defendant the court held debris from staff to remove groundskeeping maintained simply and wanton was not willful care the field otherwise glass of or remove presence warn of the it failed to negligence, noted, alleged mere "plaintiff aptly the field. As the App. (Majewski, and wanton.” labelled it as willful but no more. Here, established the evidence Reversed.
MANNING, J„ concurs. BUCKLEY, concurring part dissenting part:
JUSTICE "open was an agree majority I with doctrine danger, obvious” the "distraction” enunciated Ward conduct, applies alleging and wanton and that *9 actions however, agree, to a verdict. I cannot Moraine was entitled directed coming In its duty. did plaintiff that defendant not owe apply, major- doctrine does the conclusion that the "distraction” not Lerma, ity I do not heavily relies and Richardson. Oropeza, agree ma- propositions that cases stand for broad that the these Additionally, jority majority’s draws them. I find the rationale from distinguishing facially unconvincing. for to be
In order for a landowner to have to warn of or otherwise an protect people "open obvious” on his property, from reasonably expected premises it must be a person that iswho generally exercising safety may care for be reasonable his own forgetful having momentarily distracted or of the condition after (Ward encountered v. K Corp. it. mart 223.) Richardson, plaintiff picnic was at property when, during a fight, jumped water balloon an he over outstretched upon landing. assuming cable hurt knee Even his majority drawing correct this case broad rule that apply "distraction” doctrine not does "in situations where voluntary plaintiff’s recreational activities cause him blind himself (267 dangers 864), that him” prop surround Ill. such a osition apply presented does not under the facts here. plaintiff
The Richardson running speed was at full in the "open direction of an looking and obvious” outstretched cable while instant, behind him. At last he observed the cable decided jump over it. The Richardson plaintiff court determined that was not forgetful "inattentive” and distracted or of a condition of which he had been plaintiff aware because the that evidence showed had prior not observed the cable to the moment of the accident. The court logic reasoned that "it would that offend to contend one could (Rich prior knowledge.” of a condition of which had no he ardson, held, therefore, 251 App. The Richardson court plaintiff that the not apply "distraction” doctrine did because was exercising not safety, reasonable care his own but had "blind[ed] for himself probable of consequences actions.” 251 Ill. own App. 3d at 408. way
The dependent upon Richardson court’s was in no conclusion plaintiff "voluntary engaged recreational fact, activities.” In the court stated "defendants could reason- ably anticipate patrons facility might engage vigorous physical type ordinarily of the with an activities associated outdoor (251 though plaintiff App. 3d at even picnic.” activities,” had plaintiff if been "voluntary recreational engaged safety and had been aware care for his own exercising reasonable cable, been different. Addition court’s conclusion would have in this case plaintiff here because ally, apply does not Richardson knew of shows that of the condition. The record was aware Richardson, Therefore, it can unlike presence "open here blinded himself that the not be said obvious” condition. majority’s conclusion support not Oropeza also do
Lerma Lerma, plaintiff’s apply. does not the "distraction” doctrine City The of Rockford. in a river leased drowned decedent "open and obvi body per water is se that a Lerma court found therefore, held, the "distraction” The Lerma court ous” risk. to an foreseeable "it is did not doctrine entering body of water person that a occupier of land owner or fact that he is from the somehow be distracted recreation would Lerma, App. 3d at 576. the water.” not satisfied "distraction” doctrine court found the Oropeza *10 which court injured playing on basketball plaintiff was while where deep inch that were about one "clearly trenches visible contained 400.) is Oropeza 3d at (Oropeza, inches wide.” and four was because, Lerma, plaintiff Oropeza as in the analogous Lerma obvious, the open and Although "trenches” were the "in the water.” danger because of and obvious” "open was an court itself basketball that the Lerma, reasonably foreseeable it not was the trenches. As play he was from the fact that distracted somehow be plaintiff would ing on the court. It "in the water.” case, however, not plaintiff was instant
In the which was was plaintiff the field was not side of the condition; goalpost on the it was the obvious” "open and Oropeza Lerma and drawing from incorrect majority The is field. claim be heard to will not plaintiff that "a general proposition defen making imposes of his own that a distraction 863.) (267 contrary to the is a broad rule 3d at Such dant.” inquiry. The proper changes the focus of rationale Ward anticipated reasonably have should whether the defendant question is If a distraction condition. despite the obviousness a distraction foreseeable, defendant then making is plaintiff’s own of could defendant seriously argued cannot be duty. It him a owes play football people would anticipated reasonably have not game by their so, might be distracted that, doing while its field or the fact from clearly evident This is and run into goalposts padded anticipation just football are such an occurrence. majority distinguishes
The by asserting also Ward that Ward "essentially shopper defendant premises,” lured the onto its whereas "[c]onversely, Oropeza, plaintiff voluntarily carelessly *** precisely
encountered injury. which resulted in As Oropeza aptly by way example, '[p]laintiff stated was *** not in a required situation where he was to encounter risks ” *** (267 injuries.’ when he sustained the inescapable reasoning that, conclusion to be drawn from this is Ward, unlike in plaintiff where premises, was "lured” onto the majority views this situation as one plaintiff required where was not to encounter voluntarily condition and carelessly did so. According to the reasoning, however, Ward court’s plaintiff was invited to the merely supported store the conclusion that defendant had a duty plaintiff because it "reasonably was foreseeable that carrying large customer item which he had purchased in the store be and fail post distracted to see the upon exiting.” (Ward, 136 Ill. 2d at The mere fact that plaintiff may have been premises "lured” onto the does not mean that he did voluntarily not carelessly encounter the risk. fact, it could be said that in every almost situation person where a injured is being after distracted or of an condition, person has voluntarily and carelessly encountered the condition. determination, Such a however, goes plaintiff’s degree fault and factor; damage-reducing it does not address the rele vant of whether plaintiff defendant duty. owed Moreover, the fact that was a situation where he required to encounter the risk does not mean that defendant duty. owed no Whether required to encounter the risk goes to foreseeability. reasonable As the quote full Oropeza shows, only person situation where a truly required encounter risks is when required "he [is] to encounter perform risks to added.) duties associated employment.” with (Emphasis (Oropeza v. *11 Board Education 484.) It cannot be said that plaintiff Ward required was Thus, encounter the risk. majority distinguish has failed to at all.
In determining applicability doctrine, of the "distraction” proper inquiry First, is two-pronged. the court must determine if the condition "open Second, is and obvious.” open obvious, if it is question is whether it reasonably was person foreseeable that a who safety might for his own be distracted exercising reasonable care momentarily encountering The after it. forgetful of the condition however, intermediary which asks inquiry majority, has added himself, engaged in vol- was plaintiff whether created the distraction risks. required to encounter the untary recreational activities or foreseeability of the merely go to the reasonable questions Such plaintiff required if a is not to encounter Even distraction. during voluntary by games and is distracted own. activities, may him a if such a a defendant still owe recreational majority’s reasoning, reasonably foreseeable. distraction is dispositive of the exis- however, questions these makes the answer to foreseeability. reasonable ignores tence of a an athletic case, and maintained field defendant owned this the field for athletic people knew used goalpost. with a Defendant premises, people enter the and it was foreseeable that purposes Contrary majori- play football. permission, and even without football is evidence assertion, ty’s seriously be contested my opinion, it cannot was distracted. that he playing football on persons that it was foreseeable game and run into distracted premises could be did owe find that defendant I would him from the obvious protect or otherwise to warn of premises. condition on its ILLINOIS, Plaintiff-Appellee, v. KEITH THE STATE OF
THE PEOPLE OF WILLIAMS, Defendant-Appellant. Division) (1st No. 1 — 92—3509 District
First Opinion 1994. filed October