Murphy v. Springfield Park District , 2019 IL App (4th) 180662 ( 2020 )

Digitally signed
by Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2020.06.02
10:37:43 -05'00'
Murphy v. Springfield Park District, 2019 IL App (4th) 180662
Appellate Court JOHN E. MURPHY, Plaintiff-Appellant, v. THE SPRINGFIELD
Caption PARK DISTRICT, a Municipal Corporation, and DEREK HARMS,
Defendants-Appellees.
District & No. Fourth District
No. 4-18-0662
Filed October 4, 2019
Decision Under Appeal from the Circuit Court of Sangamon County, No. 16-L-178;
Review the Hon. John M. Madonia, Judge, presiding.
Judgment Affirmed.
Counsel on Nathan L. Wetzel, of Graham & Graham, Ltd., of Springfield, for
Appeal appellant.
Craig L. Unrath, of Heyl, Royster, Voelker & Allen, P.C., of Peoria,
and Gary S. Schwab, of Heyl, Royster, Voelker & Allen, P.C., of
Springfield, for appellees.
Panel JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Justices DeArmond and Harris concurred in the judgment and opinion.
OPINION
¶1 In January 2017, plaintiff, John E. Murphy, filed an amended complaint against defendants,
the Springfield Park District and Derek Harms, the executive director of the Springfield Park
District (collectively, the Park District), alleging that they willfully and wantonly permitted a
dangerous condition to exist on one of the Park District’s bike paths that caused a serious injury
to Murphy. Specifically, Murphy alleged that, in August 2015, he was riding his bike on a bike
path when he struck a round, metal collar designed to hold a steel bollard, which was in the
middle of the path. Murphy claimed the Park District had removed or permitted the removal
of the bollard, causing the dangerous condition.
¶2 In April 2018, the Park District filed a motion for summary judgment in which it argued
the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS
10/1-101 et seq. (West 2014)) barred liability for the action. The Park District contended there
was no genuine issue of material fact that (1) it did not have actual or constructive notice of an
unsafe condition (see id. § 3-102(a)) and (2) it did not engage in willful or wanton conduct (see
id. § 3-106). Murphy filed a response in which he argued the case should be presented to a
jury. In September 2018, the trial court agreed with both of the Park District’s arguments and
entered summary judgment in its favor.
¶3 Murphy appeals, arguing the trial court erred by entering summary judgment in favor of
the Park District. We disagree and affirm.
¶4 I. BACKGROUND
¶5 A. Murphy’s Claims
¶6 In January 2017, Murphy filed an amended complaint against the Park District. The
complaint alleged that, in August 2015, Murphy was riding his bicycle on the “Interurban
Trail,” a bike path on and along an abandoned railroad line maintained by the Park District that
runs through parts of Springfield, Illinois, and the surrounding area. At around 4 p.m., Murphy
rode under a railroad trestle and struck a hidden obstruction in the path. Murphy was thrown
from his bike and sustained a concussion, broken bones, and permanent injuries.
¶7 The complaint also alleged that the Park District “installed and maintained traffic
obstruction bollards” (essentially steel posts) at the location of the accident. One bollard had
been removed, “leaving a several inch obstruction in the center of the bike trail.” It was this
obstruction that Murphy hit.
¶8 Murphy alleged the Park District engaged in willful and wanton conduct by, among other
things, (1) intentionally removing or permitting the removal of the bollard and (2) knowing of
and permitting “the creation of the unreasonably dangerous condition of the bollard flange in
conscious disregard for the safety of Plaintiff.” Count II of the complaint alleged essentially
the same willful and wanton conduct against Derek Harms, the executive director of the Park
-2-
District who was responsible for maintenance of the trail.
¶9 B. The Park District’s Motion for Summary Judgment
¶ 10 In April 2018, the Park District filed a motion for summary judgment in which it argued
various provisions of the Act barred liability for the action. Relevant to this appeal, the Park
District first contended that there was no genuine issue of material fact that it did not have
actual or constructive notice of a dangerous condition (the missing bollard) in reasonably
adequate time prior to Murphy’s accident. See id. § 3-102(a). Second, section 3-106 of the Act
provides that, if an injury occurs because of a condition on recreational property, a public entity
or its employee is liable only if it engaged in willful and wanton conduct. Id. § 3-106. The Park
District asserted that Murphy could not meet the willful and wanton standard.
¶ 11 1. The Undisputed Material Facts
¶ 12 In support of its motion, the Park District attached the depositions of Murphy and Park
District employees Jason Graham, Nicholas Blasko, Derek Harms, and Elliott McKinley. We
note that, in his response, Murphy relied upon the same depositions and did not provide any
additional depositions or affidavits.
¶ 13 a. Murphy’s Deposition
¶ 14 Murphy testified that he rode his bike on the Interurban Trail on August 24, 2015. At about
3:15 p.m., Murphy rode north under the railroad trestle, where the accident would later occur,
and did not notice anything was amiss. He had ridden the trail before and was aware that there
were three steel bollards near the railroad trestle. About 45 minutes later, when Murphy was
returning south, he passed under the same railroad trestle and suddenly saw the steel collar that
holds the bollard in place. Because the collar was 2 to 3 inches in front of his tire and Murphy
was travelling about 10 miles per hour, he could not avoid the collar.
¶ 15 Murphy testified he struck the collar and was thrown from his bike. The next thing he
remembered was waking up in the emergency room with a concussion, a broken nose, and two
broken teeth. He also suffered lacerations on his lips, one of which resulted in permanent nerve
damage and numbness to the left side of his mouth.
¶ 16 Murphy testified that he had ridden the trail for years and had never noticed a bollard being
down. He was also unaware of any accidents involving a missing bollard. Murphy admitted
that he did not know how long the bollard that caused his accident had been removed or who
removed it. Murphy agreed the bollard could have been removed just minutes before the
accident.
¶ 17 Murphy stated he recalled that, when he initially rode under the trestle heading north, the
grass on both sides of the trail had been mowed and he heard machinery, so he thought the
Park District could have been mowing and removed the bollard. However, Murphy agreed
(1) he never saw a work crew, (2) he did not know if the machinery he heard was a lawn
mower, and (3) he did not know what machinery was being used or who was using it.
Accordingly, Murphy agreed that “it would be a matter of guess and speculation to say that a
work crew member had removed the bollard and the location of [his] accident.”
-3-
¶ 18 b. Jason Graham
¶ 19 Jason Graham testified he was the assistant superintendent of park maintenance at the time
of the accident and had worked for the Park District since 2010. Graham oversaw about 35
employees, whom he split up into five-man maintenance crews with each assigned to a
geographic area. Graham would assign them daily tasks including mowing, checking trails to
make sure they are clear, and making repairs.
¶ 20 Graham stated there were 10 to 11 bollards on the Interurban Trail, usually in groups of 3
with the middle bollard being removable. The bollards were designed to prevent motor vehicles
from accessing the trail. Graham explained a removable bollard is held in place by a steel collar
and a large metal pin with a padlock on it. The pin has two holes, one on each end, and locks
are placed on each side to secure the pin. Graham stated the Park District uses one lock and a
different entity, such as the county or city, places the other lock. The removable bollard sits
inside the collar, which is “several inches” high. The bollards also have steel handles to assist
with removal and weigh about 15 pounds.
¶ 21 Graham further testified that occasionally maintenance crews need to remove a bollard to
get a piece of equipment on to the trail. They are taught to remove the bollard, drive the vehicle
through, and then immediately replace the bollard. Graham had never heard of or seen anyone
not follow this procedure. To his knowledge, a Park District employee did not remove the
bollard on the day in question, and he was never even told it was missing.
¶ 22 Graham testified that, for a busy time such as August, his crews would be out on the trail
several times a week. They are trained to look for missing bollards and to make sure bollards
have working pins and locks. If a pin was missing, the crew often had a replacement on the
truck, or they would get one fabricated as soon as possible, usually “in an hour or two,” but
they “would never let a pin sit out of it for three or four days.” Graham estimated that crews
encountered a bollard that had been removed and not put back between 1 and 10 times a year.
He estimated cut locks were found three to five times per year, and the same was likely true
for pins. Crews were trained to immediately locate, replace, and secure a missing bollard.
Graham had never heard a complaint about the bollards or of an accident involving the bollards.
Graham stated that other persons accessed the trails and removed the bollards, including
“emergency service[s],” “Wright Tree Service, Nelson, Ameren, those type of bodies have
been on the trail.”
¶ 23 c. Nicholas Blasko
¶ 24 Nicholas Blasko testified he was the maintenance foreman in charge of “area three,” where
the accident occurred, and had been in that position for five years. With regard to the Interurban
Trail, Blasko had a four- to five-man crew during the summer, and the crew would perform
duties such as mowing, weeding, tree trimming, blowing off the trail, painting, checking for
damage, and inspecting bollards. Blasko stated they mowed the trail “[a]t least once a week.”
¶ 25 When Blasko encountered a bollard with a missing pin or lock, he would immediately
replace it. Blasko stated he had a large supply of pins and locks in his truck. Blasko stated that,
if he needed to get his vehicle or equipment on the trail, he was trained to remove the bollard,
drive his vehicle through, and replace the bollard before proceeding any further. Blasko had
never seen anyone on his crew fail to follow the described procedure or not replace a bollard
immediately.
-4-
¶ 26 Blasko testified he encountered a missing bollard two to three times a year. He was always
able to locate the bollard and properly secure it in place with a new pin or lock if needed.
Blasko stated some pins have two holes while others have one. If he ever did not have a lock,
he would place a bolt, secured with a nut and lock washer, in the other side of the pin to prevent
its removal. He would later replace that bolt with a lock.
¶ 27 Blasko agreed that any person with a wrench and ratchet set could remove the nut and bolt.
Three or four times a year, Blasko would see a pin that had been removed that had previously
been held in place with a bolt instead of a lock.
¶ 28 Other people who removed the bollards included Nelson Tree Service, the City of
Springfield, Ameren, AT&T, EMS, and the railroad. Blasko also agreed that vandals could
snap off the locks. Blasko stated the railroad cut the locks to gain access. He did not know how
other parties gained access. When secured with the pin, bollards can only be put in one way—
that is, with the handles parallel to bike traffic. If the pin is removed, the bollard can be moved.
If the handles on a bollard are not parallel to the path, it is not secured by a pin. Blasko stated
he had replaced the pin on the bollard in question fewer than five times.
¶ 29 Blasko testified that, other than Murphy’s case, he had never heard any complaints about
any of the bollards or accidents caused by their removal. He had heard of one accident
involving a woman hitting a bollard that was in place but did not know any other details. Blasko
stated he did not know who removed the bollard on the day of the accident and to his
knowledge no one at the Park District removed it.
¶ 30 d. Derek Harms
¶ 31 Harms was the executive director of the Park District. He testified that the Park District
had five bike trails, containing about 20 miles of trails, with “multiple, multiple bollards.”
Harms explained that the bollards are a safety feature designed to prevent vehicular traffic from
accessing the trail. Harms stated that he believed utilities or emergency services could gain
access by cutting locks and that vandals had done so in the past. Harms stated the Park District
does not permit people to remove bollards and gain access to the trails. He had never received
a phone call about permitting access. The Park District does not give anyone other than its
employees keys to the locks on the bollards.
¶ 32 Harms testified the Park District was aware of two other incidents involving bollards. He
received an e-mail from a woman in 2013 who stated she ran into a bollard with her bike and
had significant injuries. There was no indication that the bollard was out of place or not
functioning as intended. In 2005, a man e-mailed the Park District to warn that the handles of
the bollards were perpendicular to the flow of traffic and riders could hit them. The man
suggested simply rotating the handles 90 degrees. Harms testified that “there was somebody
that had a good idea to put [the handles] parallel. It is my understanding that that’s what
happened.” Harms was not aware of any other accidents involving bollards and was not aware
of any accidents similar to Murphy’s. Harms stated that staff is trained to routinely inspect
bollards any time they encounter them. Harms denied that the Park District or any of its
employees removed the bollard and stated he did not know who did.
-5-
¶ 33 e. Elliot McKinley
¶ 34 Elliot McKinley testified he was the director of parks and planning with the Park District,
where he oversaw maintenance operations. He had been in that position for 12 years. He stated
the Park District had verbal agreements with some utilities in the past to access trails when
necessary. He stated none were in place in August 2015. McKinley also stated the Park District
investigated Murphy’s accident and could not determine who removed the bollard. McKinley
was aware of just one other accident involving bollards—the September 2013 incident Harms
described—and no accidents similar to Murphy’s.
¶ 35 2. The Park District’s Arguments
¶ 36 The Park District argued section 3-102 of the Act required Murphy to prove that it had
actual or constructive notice of a dangerous condition “in reasonably adequate time prior to an
injury to have taken measures to remedy or protect against such condition.” Id. § 3-102(a). The
Park District argued Murphy could not demonstrate that it had actual or constructive notice
that the bollard at issue had been removed. The Park District contended that none of its
employees removed the bollard or permitted someone else to do so. Further, the Park District
did not have notice that the bollard was removed, and Murphy admitted the bollard could have
been removed mere minutes before the accident, well before the Park District could have
remedied the problem.
¶ 37 Alternatively, the Park District argued that Murphy could not demonstrate it engaged in
willful and wanton conduct as required by section 3-106 of the Act. Id. § 3-106. The Park
District asserted that it was never made aware of a dangerous condition and had no knowledge
of any previous accidents or injuries caused by the bollard’s being removed. Therefore,
according to the Park District, no genuine issue of material fact existed that the Park District
did not act in conscious disregard of the safety of others.
¶ 38 3. Murphy’s Arguments
¶ 39 Murphy argued that the collar itself was the dangerous condition and all of the Park
District’s employees testified that they were aware (1) the collar stuck up four to five inches
in the middle of the path, (2) third parties repeatedly removed bollards and did not replace
them, and (3) vandals could snap the locks off. Murphy also noted that two other people had
written to the Park District informing them of accidents with the bollards or other dangerous
conditions of the bollards. Murphy contended that the repeated vandalism gave the Park
District constructive notice of the dangerous condition. Murphy further asserted that, because
the Park District failed to warn of or prevent the vandalism, it had acted with deliberate
indifference to others’ safety.
¶ 40 C. The Trial Court’s Ruling
¶ 41 In September 2018, the trial court made a lengthy docket entry setting forth its ruling. The
court granted summary judgment in favor of the Park District on multiple grounds. First, the
court found Murphy failed to establish a genuine issue of material fact as to actual or
constructive notice. The court stated “no evidence has been presented to show that the
Springfield Park District had any knowledge of injuries incurred by bicycle trail users that had
resulted from the removal of any bollards anywhere on the park district’s 20 miles of biking
-6-
trails.” The court noted that, “at best,” Murphy had demonstrated that the Park District was on
notice that bollards were sometimes removed by third parties, but it was never informed of any
inherent risks or injuries relating to such conduct. The court found that the Park District was
entitled to summary judgment because Murphy had not demonstrated the notice required by
section 3-102 of the Act.
¶ 42 Second, the trial court found Murphy also failed to demonstrate a genuine issue of material
fact concerning willful and wanton conduct. The court explained that Murphy’s claims were
covered by section 3-106 of the Act because the bike path was recreational property. However,
because the Park District had no knowledge of a dangerous condition or prior accidents, no
jury could conclude it acted in a willful or wanton manner.
¶ 43 This appeal followed.
¶ 44 II. ANALYSIS
¶ 45 Murphy appeals, arguing the trial court erred by entering summary judgment in favor of
the Park District. We disagree and affirm.
¶ 46 A. Section 3-102 of the Act Does Not Apply in This Case
¶ 47 We note that the parties devote much of their briefs to the issue of whether the Park District
had actual or constructive notice of a dangerous condition on the bike path. Presumably, the
parties do so because they believe section 3-102 of the Act plays a role in this case. See id. § 3-
102(a); see also Monson v. City of Danville, 2018 IL 122486, ¶ 24, 115 N.E.3d 81 (“[S]ection
3-102(a) *** codifies the common-law duty of a local public entity to maintain its property in
a reasonably safe condition.”). Thus, Murphy argues that the raised collar was itself a
dangerous condition and the Park District was on notice of the defect. Further, Murphy
contends the Park District was on notice of the repeated vandalism that resulted in missing or
unsecured bollards.
¶ 48 In response, the Park District focuses on the specific bollard in this case and asserts that it
had no notice that the bollard was missing or unsecured prior to Murphy’s accident. The Park
District also notes that Murphy conceded in his deposition that the bollard could have been
removed mere minutes before his accident.
¶ 49 However, Murphy’s contentions regarding section 3-102 of the Act (as well as the Park
District’s response) are beside the point because that section does not apply under the facts of
this case. Section 3-102(a) provides, “Except as otherwise provided in this Article, a local
public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe
condition ***.” (Emphasis added.) 745 ILCS 10/3-102(a) (West 2014). Section 3-106 provides
otherwise when the property in question is recreational property. A public entity is liable for
injuries occurring on its recreational property only if it is guilty of willful and wanton conduct
proximately causing such injuries. Id. § 3-106. Accordingly, when no dispute exists concerning
the recreational nature of the property, section 3-106, and not section 3-102, governs whether
the public entity is liable. See Dunbar v. Latting, 250 Ill. App. 3d 786, 791-92, 621 N.E.2d
232, 236-37 (1993).
¶ 50 We note that Murphy specifically pleaded the Park District acted willfully and wantonly in
both counts of his complaint, and he does not argue that the bike path at issue was anything
other than recreational property. Indeed, at oral argument, Murphy conceded the bike path was
-7-
recreational property. Because the parties agree that the injury occurred on recreational
property, section 3-106 governs whether the Park District may be liable, and section 3-102 is
not relevant to the analysis. Thus, we need not address the issue of notice under section 3-102.
¶ 51 Because section 3-106 applies to Murphy’s claims, regardless of any issue of notice under
section 3-102, Murphy was required to demonstrate that a jury could find the Park District
acted in a willful and wanton manner to withstand summary judgment. (As we later explain,
under section 3-106, the issue of notice is relevant only as it relates to whether the public entity
engaged in willful and wanton conduct.) Because we conclude that the trial court, when
granting summary judgment for the Park District, correctly found no genuine issue of material
fact as to willful and wanton conduct, we need address only this ground.
¶ 52 B. Section 3-106 of the Act Does Apply in This Case
¶ 53 1. Standard of Review: Motions for Summary Judgment
¶ 54 Summary judgment is appropriate when “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 2016). “A genuine issue of material fact precluding summary judgment exists
where the material facts are disputed, or, if the material facts are undisputed, reasonable
persons might draw different inferences from the undisputed facts.” (Internal quotation marks
omitted.) Monson, 2018 IL 122486, ¶ 12. When examining whether a genuine issue of material
fact exists, a court construes the evidence in the light most favorable to the nonmoving party
and strictly against the moving party. Beaman v. Freesmeyer, 2019 IL 122654, ¶ 22.
¶ 55 “Summary judgment is a drastic means of disposing of litigation and ‘should be allowed
only when the right of the moving party is clear and free from doubt.’ ” Id. (quoting Adams v.
Northern Illinois Gas Co., 211 Ill. 2d 32, 43, 809 N.E.2d 1248, 1256 (2004)). Although a
nonmoving party “is not required to prove his or her case, the nonmovant must present a factual
basis arguably entitling that party to a judgment.” Horwitz v. Holabird & Root, 212 Ill. 2d 1,
8, 816 N.E.2d 272, 276 (2004). “A party opposing a motion for summary judgment cannot rest
on its pleadings if the other side has supplied uncontradicted facts that would warrant judgment
in its favor [citation], and unsupported conclusions, opinions, or speculation are insufficient to
raise a genuine issue of material fact [citation].” Valfer v. Evanston Northwestern Healthcare,
2016 IL 119220, ¶ 20, 52 N.E.3d 319. A trial court’s entry of summary judgment is reviewed
de novo. Monson, 2018 IL 122486, ¶ 12.
¶ 56 2. Claims Involving Recreational Property: Willful and Wanton Conduct
¶ 57 Section 3-106 of the Act states 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, ***
unless such local entity or public employee is guilty of willful and wanton conduct
proximately causing such injury.” 745 ILCS 10/3-106 (West 2014).
¶ 58 Willful and wanton conduct is defined 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.” Id. § 1-210. “Willful and
-8-
wanton misconduct approaches the degree of moral blame attached to intentional harm, since
the defendant deliberately inflicts a highly unreasonable risk of harm upon others in conscious
disregard of it.” (Internal quotation marks omitted.) Burke v. 12 Rothschild’s Liquor Mart, Inc.,
148 Ill. 2d 429, 448, 593 N.E.2d 522, 530 (1992).
¶ 59 The Third District eloquently explained when a public entity may be found to have engaged
in willful and wanton conduct as follows:
“Willful and wanton conduct may be found to exist where the local public entity
takes no action to correct a condition even though it was informed about the dangerous
condition and knew that other persons had previously been injured because of the
dangerous condition. [See Straub v. City of Mt. Olive, 240 Ill. App. 3d 967, 979-80,
607 N.E.2d 672, 680-81(1993).] Also, a local public entity may be found to have
engaged in willful and wanton conduct when it intentionally removes a safety feature
from its recreational property. [See Benhart v. Rockford Park District, 218 Ill. App. 3d
554, 559-60, 578 N.E.2d 600, 603-04 (1991).] However, where there are no facts or
allegations to show that the local public entity engaged in any intentional act or knew
of other injuries or accidents caused by the allegedly dangerous condition, the conduct
of the local public entity does not rise to the level of willful and wanton conduct. [See
Brown v. Chicago Park District, 220 Ill. App. 3d 940, 944-45, 581 N.E.2d 355, 359
(1991)].” Dunbar, 250 Ill. App. 3d at 792.
¶ 60 Whether conduct qualifies as willful and wanton is generally an issue of fact for the jury.
Cohen v. Chicago Park District, 2017 IL 121800, ¶ 27, 104 N.E.3d 436. “However, where ***
discovery has been completed and what is contained in the pleadings and affidavits would have
constituted all of the evidence before the court and upon such evidence there would be nothing
left to go to a jury, and the court would be required to direct a verdict, then a summary judgment
should be entered.” (Internal quotation marks omitted.) Id.
¶ 61 C. This Case
¶ 62 1. Intentional Removal of a Safety Feature
¶ 63 As an initial matter, we conclude no evidence in the record exists to demonstrate the Park
District removed or gave permission to a third party to remove the bollard that caused
Murphy’s accident. Murphy argues there is “ample evidence” from which a reasonable jury
could infer that the Park District was responsible for removing the bollard. Murphy relies on
the following facts: (1) he had noticed the grass along the trail had been mowed, (2) he heard
machinery that could have been lawn mowers, and (3) the Park District admitted it mowed the
grass and sometimes needed to remove a bollard to do so. Murphy also argues that the Park
District gave keys to its locks only to its employees.
¶ 64 However, no person testified when the grass was cut or that the machinery Murphy heard
was actually a lawn mower, much less that it was the Park District using the machinery. And
although the Park District had the only keys to its locks, the uncontradicted testimony was that
other entities or persons placed their own locks on some pins or otherwise gained access
through other means, including vandalism. All of the Park District employees denied that the
Park District removed the bollard and denied ever giving another entity permission to do the
same. At his deposition, Murphy admitted it would be speculation to say that Park District
employees removed the bollard, and we agree. “[U]nsupported conclusions, opinions, or
speculation are insufficient to raise a genuine issue of material fact [citation].” Valfer, 2016 IL
-9-
 119220, ¶ 20.
¶ 65 2. Utter Indifference to or Conscious Disregard for the Safety of Others
¶ 66 Because there is no evidence the Park District removed the bollard, Murphy may recover
only if he can establish that the Park District (1) knew the removal (without replacing) of
bollards created a dangerous condition, (2) knew previous accidents or injuries occurred
because bollards were removed and not replaced, and (3) did not act to prevent their removal.
See Dunbar, 250 Ill. App. 3d at 792.
¶ 67 Murphy argues the collar that held the bollard in place was inherently dangerous because
it was a raised obstacle in the middle of the bike path. The Park District responds that the collar
was dangerous only if the bollard was missing. The Park District contends that, because there
is no evidence it was responsible for removing the bollard and no evidence that it was aware
anyone had been injured by a removed bollard, it cannot be guilty of willful and wanton
conduct.
¶ 68 Murphy counters that the Park District was aware that third parties routinely broke the
locks and removed the bollards without replacing them. Indeed, Park District employees
testified that they found bollards missing up to 10 times per year. Accordingly, Murphy claims
the Park District was aware of a recurring dangerous condition and was willful and wanton by
failing to address it. We disagree.
¶ 69 In support of his argument that the Park District was aware of the danger, Murphy relies
upon Buford v. Chicago Housing Authority, 131 Ill. App. 3d 235, 237-38, 476 N.E.2d 427, 430
(1985), a case in which a nine-year-old girl fell down an elevator shaft when she was pushed
into the exterior doors and the bottom gave way. Testimony at trial revealed that metal clips
held the bottom of the doors in place, and defendants were aware that these clips were routinely
and repeatedly disengaged from their sills and damaged by vandalism. Id. at 238, 241.
Repairmen would bend the clips back to repair them, but this weakened the clips; they would
eventually replace the clips when they became too worn. Id. at 238, 240. The jury found for
the plaintiff, and the defendants appealed. Id. at 241.
¶ 70 On appeal, the defendants argued they lacked notice of the dangerous condition. Id. at 245.
The First District held “the regular recurrence of the same type of vandalism involving the
same elevator rendered subsequent such acts foreseeable and imposed a duty on [the housing
authority] to take steps to prevent or control the vandalism, or at least to warn of the dangerous
situation such acts potentially created.” Id. at 247.
¶ 71 The problem for Murphy is that, even if we were to accept that the missing bollards in the
instant case were the same as the damaged clips in Buford (a proposition that is not entirely
convincing), Buford dealt with ordinary negligence. At most, the Park District’s conduct in
this case with respect to the bollards would be negligent, which is not enough to support the
willful and wanton standard. See Burke, 148 Ill. 2d at 450 (“[T]here is a qualitative difference
between negligence and willful and wanton conduct.”).
¶ 72 We recognize that Murphy relies on Buford to demonstrate that the Park District had
constructive notice of a dangerous condition. But he fares no better under the cases he relies
upon for the willful and wanton issue.
¶ 73 In Cohen, the Illinois Supreme Court recently addressed the willful and wanton standard
in the context of a bike path. Cohen, 2017 IL 121800, ¶ 1. There, someone notified the Chicago
- 10 -
Park District there was a crack in the pavement of a lakefront bike path. Id. ¶ 11. The park
district inspected the crack and slated it for an expedited repair but took no further action at
that time, such as barricading the path or marking the crack. Id. ¶¶ 11-12. The plaintiff sued
after the crack caused him to fall off his bike (id. ¶ 1), but the supreme court concluded that
summary judgment was properly entered in favor of the park district because it did not engage
in willful or wanton misconduct (id. ¶ 34).
¶ 74 Relevant here, the court in Cohen concluded the risk of injury from the crack was “nothing
like the extraordinary and unusual risk *** in Palmer [v. Chicago Park District, 277 Ill. App.
3d 282, 660 N.E.2d 146 (1995) (holding park district potentially liable for failing to correct or
warn about 30-foot section of fence that was laying in park for three months)].” Id. ¶ 31.
“Moreover, there were no prior injuries involving the crack, which would have alerted
defendant to any extraordinary risk or danger to the users of the path.” (Emphasis added.) Id.
The court held that “to equate defendant’s actions in this case with willful and wanton conduct
would render that standard synonymous with ordinary negligence.” (Internal quotation marks
omitted.) Id. ¶ 33.
¶ 75 The same is true here. Nothing in this case indicates that the bollard was exceptionally
dangerous, either in place or on the rare occasions it was missing. No injury had ever occurred
as a result of the bollard being down. The only injury related to a bollard at all occurred when
a woman hit one that was in place and functioning as designed. Further, the Park District
trained its employees to routinely inspect bollards to make sure they were present and locked
in place. Employees immediately replaced any missing bollards when observed or notified.
Even when viewed in the light most favorable to Murphy, the facts of this case do not even
suggest that the Park District acted in conscious disregard of a “highly unreasonable risk of
harm.” (Internal quotation marks omitted.) Burke, 148 Ill. 2d at 448.
¶ 76 We view Fennerty v. City of Chicago, 2015 IL App (1st) 140679, 33 N.E.3d 737, as
particularly instructive, analogous, and well reasoned. In Fennerty, a woman walked her dog
in a large grassy area between lanes of a boulevard in Chicago. Id. ¶ 5. She tripped over an
electrical box that was raised about three inches above the ground. Id. The appellate court
affirmed the entry of summary judgment in favor of the city on the issue of willful and wanton
conduct. Id. ¶ 23.
¶ 77 The record demonstrated the city inspector knew about the specific box at issue but did not
consider it dangerous. Id. The settling of ground around the boxes happened naturally over
time and to all electrical boxes. Id. There was no evidence that the city was aware of any prior
injuries involving the box the plaintiff tripped over. Id. The First District concluded as follows:
“Although the city’s conduct could arguably be characterized as negligent, it did not show an
actual or deliberate intention to cause harm or an utter indifference to, or conscious disregard
for, the safety of others.” Id.
¶ 78 Likewise, in this case, the Park District was aware that bollards on rare occasions had been
removed in the past, but it was not aware that this particular bollard had been removed, and it
was not aware that the removal of any bollard had ever caused any injury to a visitor. See A.D.
v. Forest Preserve District, 313 Ill. App. 3d 919, 924-25, 731 N.E.2d 955, 960 (2000)
(reversing jury verdict in favor of child who ran into a thorny tree while playing tag in a picnic
area and concluding the defendant was not willful and wanton for leaving the tree in place
because it was not “unreasonably dangerous” and there was no evidence that any one else had
- 11 -
been injured by it). Based on our review of the record, we agree with the trial court’s conclusion
that no reasonable jury could find that the Park District acted in a willful and wanton manner.
¶ 79 In closing, we thank the trial court for its lengthy docket entry explaining its decision,
which this court found helpful to the resolution of this case.
¶ 80 III. CONCLUSION
¶ 81 For the reasons stated, we affirm the trial court’s judgment.
¶ 82 Affirmed.
- 12 -