Brichetto v. Plainfield Community Consolidated School District 202

2020 IL App (2d) 191124-UNo. 2-19-1124
Order filed October 13, 2020
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
SUSAN BRICHETTO, ) Appeal from the Circuit Court
) of Kendall County.
Plaintiff-Appellant, )
)
v. ) No. 17-L-3
)
PLAINFIELD COMMUNITY )
CONSOLIDATED SCHOOL )
DISTRICT #202, ) Honorable
) Stephen L. Krentz,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court.
Justices Hutchinson and Jorgensen concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in granting summary judgment on the plaintiff’s
complaint where the claims based on negligence were immunized under section 3-
106 of the Tort Immunity Act and the evidence was insufficient to establish willful
and wanton conduct as a matter of law.
¶2 This case arises from injuries the plaintiff, Susan Brichetto, suffered as a result of tripping
over a pole vault pole on the ground in the field house of the defendant, Plainfield Community
Consolidated School District #202. Following her injury, the plaintiff filed an amended two-count
complaint against the defendant, alleging a claim for negligence and a claim for willful and wanton
2020 IL App (2d) 191124-Uconduct. The defendant filed a motion for summary judgment, arguing that it was immune from
liability for the negligence claim and asserting that its alleged misconduct did not rise to the level
of willful and wanton conduct. Following a hearing, the trial court granted the defendant’s motion.
The plaintiff appeals from this order. We affirm.
¶3 I. BACKGROUND
¶4 On February 27, 2016, the defendant hosted a track meet at Plainfield South High School
(Plainfield). The event was held at the field house. A number of schools participated, including
Oswego East High School (Oswego). The 76-year-old plaintiff attended the track meet to watch
her granddaughter, Rebecca Staples, compete. Staples was a member of Oswego’s track team.
When the plaintiff arrived shortly before 9 a.m., she texted Staples to let her know she had arrived.
Staples met the plaintiff at the entrance of the field house. As she walked with Staples, the plaintiff
had one arm linked with her granddaughter and held a coffee cup in her other hand. While walking
with Staples arm-in-arm, the plaintiff tripped and fell over a pole vault pole laying in the field
house pedestrian walkway. The plaintiff was taken to a medical center and learned that she had
suffered a compound fracture of her femur above her right knee.
¶5 On October 23, 2017, the plaintiff filed an amended two-count complaint against the
defendant. Count 1, based on negligence, alleged that the defendant had a duty to maintain
pedestrian walkways so as to not negligently cause injuries. The plaintiff asserted that the
defendant negligently permitted a pole vault pole to obstruct the pedestrian walkway, failed to
warn of the dangerous condition, failed to provide a barrier between the pole vault area and the
walkway, failed to monitor the walkway and the use of equipment, failed to provide security
personnel to prevent dangerous conditions, and failed to design a safe entrance and exit for
spectators. The plaintiff alleged that the defendant’s negligence was the proximate cause of her
-2-
2020 IL App (2d) 191124-Uinjuries. Count II asserted a claim based on willful and wanton conduct, asserting that the
defendant’s alleged misconduct was also willful and wanton.
¶6 On August 28, 2019, the defendant filed a motion for summary judgment pursuant to
section 2-1005 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1005 (West 2018)). The
defendant argued that it was subject to immunity under section 3-106 of the Tort Immunity Act
(Immunity Act) (745 ILCS 10/3-106 (West 2018)), which provided immunity to a local public
entity where liability was based on the existence of a condition on property used for recreational
purposes. The defendant also argued that it was subject to immunity under section 3-108(a) of the
Immunity Act (id. § 3-108(a)), which provided immunity to a local public entity for acts of
negligent supervision. Finally, the defendant argued that there was no evidence of willful and
wanton conduct because there were no facts to support that it knew of a dangerous condition or
any previous injuries resulting from its design or layout of the event.
¶7 The defendant submitted multiple depositions in support of its motion for summary
judgment. In his deposition, Kenneth Bublitz attested that he was the defendant’s athletic director
at Plainfield. Prior to February 2016, he had been in charge of preparing for track meets at the
high school. This involved moving bleachers, taping off areas, and setting up the timing tower,
the high jump pits, the pole vault area, and the shot-put area. The set-up of the events in the field
house had been the same for many years. The preparation was done the night before.
¶8 Bublitz further stated that track meets were supervised by the athletic director or assistant
athletic director, the coaching staff, and any other person involved with timing or spotting. All the
defendant’s personnel that were present had the responsibility to maintain safety during an event.
Additionally, each team participating in a track meet provided one person to be responsible for
overseeing a specific event, such that one school oversaw hurdles, one school oversaw pole vault,
-3-
2020 IL App (2d) 191124-Uone school oversaw running, etc. Bublitz acknowledged that on February 27, 2016, there was a
pole vault pole stand and that any pole not being used should have been placed on the stand. He
was at the track meet when the plaintiff was injured and learned of it over his radio. He did not
see the fall, did not know who left the pole in the walkway and did not know who moved it after
the plaintiff’s fall.
¶9 In his deposition, Ryan Flanagan stated that he had been employed by the defendant since
2005. In 2016, he was a teacher and the assistant athletic director at Plainfield. As the assistant
athletic director, he was responsible to make sure the track meets were safe for participants and
spectators. As the host of the event, the high school staff decided where the events would be set
up in the field house, where the bleachers would be placed, and the general traffic flow of
pedestrians in the field house. He agreed that it was not safe for someone to place a pole vault
pole in the pedestrian walkway.
¶ 10 Flanagan arrived early for the February 27, 2016, track meet. There were also present
about four track coaches, the athletic trainer, admissions personnel, timers, janitorial staff, and
Bublitz. Flanagan did not see the plaintiff fall down but was informed by someone of the incident.
He completed an incident report at 9 a.m. on that day. The report stated that the fall was witnessed
by an Oswego coach, Conner Downs. Flanagan stated that the plaintiff fell in the area between
the entrance to the field house and the bleachers. She was within the pedestrian walkway. He did
not know who placed the pole vault pole in the walkway. Flanagan stated that he was aware that
there were video cameras throughout the school. He was not sure who maintained the video
system. He knew that video footage was stored for a certain amount of time and then deleted. He
watched the video of the plaintiff’s fall at some point. He stated that, prior to the plaintiff’s fall,
he was not aware of any unsafe condition.
-4-
2020 IL App (2d) 191124-U¶ 11 In her deposition, Janeen Carlberg stated that she was employed by the defendant at
Plainfield as a gym teacher and the head track and field coach. As one of the defendant’s
employees, she had the responsibility to make sure that the site of the track events was safe.
Carlberg identified a schematic of the how the field house should be set up for track and field
events. She did not know who created the schematic, but it had been followed since she became
head track and field coach in 2009. There was yellow caution tape set up to prevent spectators
from stepping onto the track when competitors were running. There was also caution tape set up
around the pole vault and pit area. She, the other coaches, and the student athletes set up for the
February 27, 2016, track invitational on the night before the event. After the set-up, and after the
student athletes left, she and the other coaches walked through the field house to make sure
everything was set up properly and that there were no unsafe conditions. They also did a walk
through on the morning before the invitational started. They did not notice anything unsafe.
¶ 12 On February 27, 2016, she was not in the field house when the plaintiff fell. She did not
learn about it until after the plaintiff was taken away by the paramedics. She stated that she had
recently watched the video that showed the plaintiff after her fall. The video did not show the
plaintiff actually falling. A pole vault pole was in the pedestrian walkway and was not where it
was supposed to be. There were stands in the pole vault area where the poles were to be placed
when not being used. She did not know who left the pole in the pedestrian walkway or who the
pole belonged to. However, she did not believe it was the defendant’s pole because the video
showed that all the defendant’s pole vaulters were standing with their poles in their hands.
¶ 13 Connor Downs stated that he had been employed by Oswego since 2014 as a teacher and
coach. He was at the defendant’s track invitational on February 27, 2016. He had been there for
indoor track meets about 24 times. He did not notice anything unusual about the set up or any
-5-
2020 IL App (2d) 191124-Uunsafe conditions on the day of the plaintiff’s fall. He acknowledged that all coaches from all
teams had the responsibility to maintain safe conditions and that each school was responsible for
keeping track of its own equipment.
¶ 14 On February 27, 2016, he saw the plaintiff meet with Staples at the entrance of the field
house. The plaintiff was holding a cup of coffee with one hand and Staples arm with the other.
The two started walking toward the bleachers. He observed them for about 30 to 40 seconds, and
then saw the plaintiff fall. The fall occurred about 8:40 a.m. The plaintiff’s left foot got caught
on a pole vault pole, which set her off balance. Staples did not fall. After he saw the plaintiff fall,
he went to see if she was okay. Someone else called the paramedics. Other people started clearing
out the area, moving bleachers and the pole vault poles out of the way. He did not know who
moved things.
¶ 15 On October 4, 2019, the plaintiff filed a response to the motion for summary judgment.
The plaintiff argued that the immunity provided in section 3-106 of the Immunity Act was not
applicable for two reasons. First, section 3-106 only immunized against injury that occurred in a
recreational facility and the defendant’s field house was an educational facility, not a recreational
facility. Second, section 3-106 only immunized against injury from a “condition of the property”
and the failure to create a safe pedestrian walkway through the field house was not such a
condition. The plaintiff also argued that the immunity provided in section 3-108 of the Immunity
Act was not applicable. The plaintiff noted that section 3-108 provided immunity for a failure to
properly supervise an activity. The plaintiff argued that the defendant’s negligence was not based
on a failure to supervise, but on the failure to properly prepare the field house for the track meet
by providing a safe pedestrian walkway.
-6-
2020 IL App (2d) 191124-U¶ 16 The plaintiff further argued that the defendant’s attempt to relieve itself of liability for
willful and wanton conduct because it did not have notice of an unsafe condition was disingenuous
because it was withholding evidence in the case. The plaintiff argued that the defendant had video
footage that would show when the pole vault pole was placed in the walkway and how long it had
been there before the plaintiff tripped over it. The failure to produce this evidence created a
question of fact as to whether the defendant should have known of the dangerous condition.
Finally, the plaintiff argued that the defendant’s failure to provide a safe ingress and egress for
spectators at the track meet was willful and wanton and its failure to provide surveillance video
footage created a question of fact as to the recklessness of its conduct.
¶ 17 On October 24, 2019, the defendant filed a reply. The defendant noted that, in her response,
the plaintiff argued that section 3-108 did not bar her claim because it was based on a failure to
properly prepare the field house for the track meet and not on a failure to supervise. The defendant
argued that any claim based on the alleged failure to properly prepare the field house would be
barred by sections 2-109 and 2-201 of the Immunity Act (745 ILCS 10/2-109, 201 (West 2018)),
which provided absolute immunity, for both negligence and willful and wanton conduct, to public
entities in their performance of policy-making and discretionary functions.
¶ 18 The plaintiff filed a motion to strike the argument related to sections 2-109 and 2-201 of
the Immunity Act because it was not raised in the defendant’s motion for summary judgment. The
trial court denied the motion to strike and granted the plaintiff an opportunity to file a sur-response.
In her sur-response, the plaintiff argued that sections 2-109 and 2-201 were not applicable because
setting up the field house for the track meet was not a policy-making decision or a discretionary
act.
-7-
2020 IL App (2d) 191124-U¶ 19 On October 28, 2019, the plaintiff filed a motion to compel the defendant to produce all
relevant video surveillance footage taken at the field house on the morning of February 27, 2016.
The plaintiff stated that the defendant had only produced video surveillance footage starting at
8:39:12 a.m. on that date. The plaintiff acknowledged that, at a discovery deposition, the defendant
indicated that it was no longer in possession of any other video surveillance footage from that date.
The plaintiff argued that the defendant’s failure to produce the requested video had prejudiced her
in the prosecution of her case. The plaintiff requested an order that the defendant produce the
complete unaltered video surveillance footage from the morning of the plaintiff’s fall or produce
an affidavit that such video footage was destroyed.
¶ 20 On November 15, 2019, following a hearing on the motion to compel, the trial court granted
the plaintiff’s motion. The trial court ordered the defendant to produce, by December 6, 2019, a
sworn verification identifying the specific time stamps on the video surveillance footage produced
and stating that the video already produced was the only surveillance footage in its possession.
Thereafter, on that same day, a hearing proceeded on the defendant’s motion for summary
judgment. Following argument, the trial court stated that it would take the matter under
advisement and issue a written ruling at a later time.
¶ 21 On November 27, 2019, the trial court entered a written ruling granting the defendant’s
motion for summary judgment. The trial court stated that section 3-106 provided the defendant
immunity from liability for the plaintiff’s injury. The trial court found that at the time of the injury
the field house was being used for recreational purposes and the misplacement of the pole vault
pole was a condition of the property within the meaning of section 3-106. Further, the trial court
found that section 3-108 and sections 2-109 and 2-201 also immunized the defendant from liability
for its alleged negligence.
-8-
2020 IL App (2d) 191124-U¶ 22 In addition, the trial court found that there was no evidence to suggest that the defendant
was guilty of willful and wanton conduct. The trial court noted that willful and wanton conduct
was defined as a course of action which showed an actual or deliberate intention to cause harm or
an utter indifference or conscious disregard for the safety of others. The trial court found that there
was no evidence that the defendant knew of the dangerous condition, that prior injuries occurred,
or that relevant safety features were ignored or removed. Accordingly, because the Immunity Act
provided immunity on the claim for negligence, and there was no evidence to support a finding of
willful and wanton conduct, the trial court granted summary judgment in favor of the defendant
on both counts of the plaintiff’s complaint. Thereafter, the plaintiff filed a timely notice of appeal.
¶ 23 II. ANALYSIS
¶ 24 On appeal, the plaintiff argues that the trial court erred in granting summary judgment in
favor of the defendant. Summary judgment is proper when the pleadings, depositions, affidavits,
and other matters on file establish that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2018). A court must
construe the pleadings, depositions, admissions, and affidavits strictly against the movant and
liberally in favor of the opponent. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154
Ill. 2d 90, 102 (1992). Although a plaintiff is not required to prove his or her case at the summary
judgment stage, in order to survive a motion for summary judgment, the nonmoving party must
present a factual basis that would arguably entitle him or her to a judgment. Oliveira-Brooks v.
Re/Max International, Inc., 372 Ill. App. 3d 127, 134 (2007). Our review is de novo. People ex
rel. Director of Corrections v. Booth, 215 Ill. 2d 416, 423 (2005).
¶ 25 A. Motion to Compel
-9-
2020 IL App (2d) 191124-U¶ 26 The plaintiff first argues that summary judgment was premature because the defendant had
not yet complied with the motion to compel. The plaintiff asserts that Flanagan’s deposition
testimony established that there was additional video from the morning of the incident. Thus, the
plaintiff argues that if the defendant had provided verification that the video footage it had
produced in discovery was the only footage in its possession, she could present an adverse
inference instruction to the jury at trial and she could add a claim for negligent spoliation of
evidence. Alternatively, the plaintiff argues that, if the defendant produced additional video
footage from earlier on the morning of the track meet, it could show that the pole was lying in the
walkway for an unreasonable period of time and help establish her claim for willful and wanton
conduct.
¶ 27 The plaintiff’s attempt to create a genuine issue of material fact by arguing that the
defendant did not comply with the motion to compel is without merit. Flanagan’s deposition
testimony did not establish that there was additional video footage from the morning of the
incident. During his testimony, Flanagan stated that “I do have knowledge of [the pole] being
placed there by another person, and I’m not sure who that person was.” He said he had this
knowledge from viewing the video. The plaintiff’s counsel then asked Flanagan to describe “what
[he] viewed on the video footage.” Flanagan responded:
“Sure. The video showed at the angle overseeing partial of the pole vault area [that is]
taped off with some poles laying horizontally with the lanes that are going. You can see
on the opposite side a chair and [there is] a pole vault pole by that chair. As it spins around,
you can see participants with their pole vault poles in their hand. And it continues on to
spin around and that’s where you see [the plaintiff] on the ground.”
- 10 -
2020 IL App (2d) 191124-UFlanagan was then asked, “From the video did you see the pole vault poles being placed on the
ground? Flanagan responded, “No.”
¶ 28 The foregoing testimony does not establish that Flanagan saw any video other than what
was produced. The video he described was the video that was produced. We acknowledge his
testimony that, from viewing the video, he knew that someone placed the pole on the ground, and
his further testimony that the video did not show the pole being placed on the ground. However,
it is axiomatic that someone placed the pole on the ground. His statement that he knew someone
placed the pole on the ground does not establish the existence of any additional video. The plaintiff
had the opportunity to further question Flanagan about this issue at his deposition but failed to
establish that he watched any video other than what was produced. As such, the plaintiff’s mere
speculation that there may be additional video is not enough to create a genuine issue of material
fact sufficient to survive a motion for summary judgment. Judge-Zeit v. General Parking Corp.,
376 Ill. App. 3d 573, 584 (2007).
¶ 29 Moreover, other evidence refutes the plaintiff’s assertion that additional video exists.
Specifically, the record shows that in response to the plaintiff’s written discovery request, the
defendant produced video footage from the field house taken on the morning of the plaintiff’s
injury. Illinois Supreme Court Rule 214 (eff. July 1, 2018) required the defendant to furnish an
affidavit that the production was complete. Although a copy of the affidavit was not included in
the record on appeal, during the hearing on the motion to compel defense counsel stated that it had
been furnished to the plaintiff and the plaintiff did not argue otherwise. Furthermore, defense
counsel stated at the hearing that there was no other video available from that morning. The
attorney explained that the video cycles every 30 days and whatever was not produced in discovery
had already been taped over.
- 11 -
2020 IL App (2d) 191124-U¶ 30 In addition, the plaintiff’s claim that summary judgment was premature is unpersuasive for
procedural reasons as well. At the hearing on the motion to compel, the trial court asked the
plaintiff if she was relying on the evidence sought in the motion to compel to advance any
arguments under the motion for summary judgment. The plaintiff stated that she was not, and she
did not move to continue the hearing on the motion for summary judgment pending the defendant’s
compliance with the order on the motion to compel. After the trial court granted the motion for
summary judgment, the plaintiff also did not file a motion to reconsider, advancing the argument
that the motion was premature in the absence of the defendant’s compliance with the motion to
compel. Under these circumstances, where the plaintiff did not move to continue or object at the
hearing on the motion for summary judgment, or file a motion to reconsider following the entry of
summary judgment, the plaintiff cannot now argue that the motion for summary judgment was
premature. Pellico v. Mork, 2018 IL App (2d) 170468, ¶ 20 (the invited error doctrine prohibits a
party from proceeding in one manner in the trial court and then arguing on appeal that it was error).
¶ 31 Finally, the plaintiff cannot rest on her delay in filing the motion to compel to create a
genuine issue of material fact. Flanagan’s deposition testimony was taken on August 29, 2018.
The parties agreed to close discovery on July 31, 2019, almost a year later. The plaintiff did not
file her motion to compel until three months after discovery was closed. If the plaintiff believed
that Flanagan’s testimony established the existence of an additional video, she should have filed
her motion to compel sooner and not agreed to close discovery. See Direct Auto Insurance Co. v.
Beltran, 2013 IL App (1st) 121128, ¶ 72 (observing that trial courts ought not allow litigants to
remain mute, lose on a motion and then frantically collect evidence to show the court’s ruling was
erroneous).
¶ 32 B. Tort Immunity
- 12 -
2020 IL App (2d) 191124-U¶ 33 The plaintiff next argues that the trial court erred in finding that statutory immunity barred
her claims. The Tort Immunity Act “serves to protect local public entities and public employees
from liability arising from the operation of government.” Van Meter v. Darien Park District, 207
Ill. 2d 359, 368 (2003). “By providing immunity, the legislature sought to prevent the diversion
of funds from their intended purpose to the payment of damages claims.” Malinksi v. Grayslake
Community High School District 127, 2014 IL App (2d) 130685, ¶ 7. “Unless an immunity
provision applies, municipalities are liable in tort to the same extent as private parties.” Van Meter,
207 Ill. 2d at 368-69.
¶ 34 The plaintiff’s first contention is that the trial court erred in finding her negligence claim
barred by section 3-106 of the Immunity Act. Section 3-106 of the Immunity Act provides:
“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 2018).
The Immunity Act is strictly construed against the public entity seeking immunity. Trtanj v. City
of Granite City, 379 Ill. App. 3d 795, 803 (2008).
¶ 35 The plaintiff argues that section 3-106 is not applicable because the pole vault in the
walkway was not a “condition” of the property where the injury occurred. 1 In McCuen v. Peoria
1
Although the plaintiff also argued in the trial court that the field house was not “intended
or permitted to be used for recreational purposes,” she has not raised that argument on appeal and
- 13 -
2020 IL App (2d) 191124-UPark District, 163 Ill. 2d 125 (1994), our supreme court addressed the meaning of the word
“condition” as used in section 3-106 of the Immunity Act. In that case, while visiting a park owned
and operated by the Peoria Park District, McCuen climbed onto a hayrack to take a mule-drawn
hayrack ride. Id. at 126. While the park district employee was harnessing the mules, he slapped
a strap over the body of one of the mules, which caused the mule team to run off with a driverless
hayrack. Id. at 126-27. McCuen was thrown from the hayrack and injured. She sued the park
district for negligence. Id. at 127.
¶ 36 On appeal, in determining whether the driverless hayrack was a “condition” of public
property within the meaning of section 3-106, our supreme court held as follows:
“We do not believe that a driverless hayrack is a condition of public property within the
meaning of section 3-106. Plaintiffs do not claim that the hayrack itself was dangerous,
defective or negligently maintained, only that the mule team was not handled properly by
the park district employee. The handling of the mule team does not relate to the condition
of the hayrack itself. If otherwise safe property is misused so that it is no longer safe, but
the property itself remains unchanged, any danger presented by the property is due to the
misuse of the property and not to the condition of the property.” Id. at 129.
“McCuen illustrates that section 3-106 immunizes a defendant from liability in negligence where
the property itself is unsafe, but that section 3-106 does not immunize the defendant for unsafe
activities conducted upon otherwise safe property.” Vilardo v. Barrington Community School Dist.
220, 406 Ill. App. 3d 713, 722 (2010).
any such argument is thus forfeited. See Ill. S. Ct. Rule 341(h)(7) (eff. May 25, 2018) (all
arguments not raised in the appellant’s appellate brief are forfeited).
- 14 -
2020 IL App (2d) 191124-U¶ 37 The plaintiff argues that, as in McCuen, section 3-106 is not applicable because she does
not allege that the pole vault pole itself was defective, dangerous, or negligently maintained.
Rather, she alleges that the mishandling of the pole vault pole by the defendant’s employees caused
her injuries. We find the plaintiff’s reliance on McCuen unpersuasive. In Moore v. Chicago Park
District, 2012 IL 112788, our supreme court subsequently clarified its holding in McCuen.
¶ 38 In Moore, Sylvia Lee Moore was injured when she attempted to step over a pile of snow
and ice that accumulated near the curb of a parking lot due to plowing by park district employees.
The plaintiff, Roberta Minor Moore, as special administrator of the estate of Sylvia Lee Moore,
sued for negligence, asserting that the park district’s activities in negligently shoveling and
plowing snow into mounds on its parking lot and walkway created an unnatural condition for
pedestrians to walk upon or step over. Id. ¶ 4. The certified question on appeal was whether the
accumulation of snow and ice was a “condition” of the public property within the meaning of
section 3-106 of the Immunity Act. Id. ¶ 3. In answering this question, the supreme court reasoned
that the snow was a naturally occurring substance when it fell on the property and did not become
an “activity” when it was shoveled or plowed but, rather, remained a condition of the property. Id.
¶ 16.
¶ 39 The Moore court explained that, in McCuen, while the hayrack itself remained unchanged,
it was misused by a park district employee so that it was no longer safe. As such, any danger
presented by the hayrack was due to the actions of the employee and not the condition of the
hayrack, and section 3-106 did not apply. Id. ¶ 17. In contrast to McCuen, the Moore court held
that there was no misuse of property that contributed to Moore’s injury; rather, the condition of
the property was simply changed due to the new condition of the snow and ice located thereon,
such that section 3-106 immunity was applicable. Id. In other words, it was the unsafe condition
- 15 -
2020 IL App (2d) 191124-Uof the property itself that caused the injury rather than the park district’s actions in using snow
removal equipment, unlike in McCuen where McCuen’s injuries were caused by the negligent
action of the park district employee in improperly handling a mule team.
¶ 40 In the present case, the circumstances are closer to Moore than McCuen. Similar to the
snow in Moore, when the pole vault was placed in the pedestrian pathway it became a condition
of the property. Unlike in McCuen, the plaintiff does not allege that her injury was caused by any
dangerous use of the pole by the defendant’s employees. Rather, the plaintiff’s complaint alleges
negligence based on failing to inspect, monitor, warn, and maintain a safe walkway, and failing to
provide a barrier, or security personnel. The negligent action of the defendant’s employees alleged
by the plaintiff is that they essentially allowed a dangerous condition to exist without correcting
it. This is not sufficient to remove the plaintiff’s claim from the purview of section 3-106 of the
Immunity Act. Id. ¶¶ 16-17.
¶ 41 The plaintiff acknowledges that movable non-fixed items may constitute a condition of
public property. See Grundy v. Lincoln Park Zoo, 2011 IL App (1st) 102686, ¶ 11. However, she
argues that in such cases, the movable items were in their intended locations, citing Grundy, 2011
IL App (1st) 102686, ¶ 15 (temporary warning sign was in its intended location but still caused
tripping injury), and Sylvester v. Chicago Park District, 179 Ill. 2d 500, 501 (1997) (plaintiff
tripped on concrete parking abutment that blocked a walkway). The plaintiff argues that section
3-106 is not applicable because, in this case, the pole vault pole was not intended to be in the
pedestrian walkway away from the stand where the poles were to be stored. She argues that this
is similar to McCuen, where the driver was not intended to be separated from the hayrack and the
mule team.
- 16 -
2020 IL App (2d) 191124-U¶ 42 We find the plaintiff’s argument unpersuasive. First, in Sylvester, although the concrete
parking abutment was deliberately placed where it was located, as it required either several men
or a forklift to move (id. at 505), it was still misplaced as it was on a walkway and not in a parking
lot. See Rexroad v. City of Springfield, 207 Ill. 2d 33, 41 (2003) (noting that in Sylvester, the
plaintiff tripped on a “misplaced, concrete car stop”). Further, section 3-106 has been found to
provide immunity when the item that caused injury was not in its intended location. See, e.g.,
Goodwin v. Carbondale Park District, 268 Ill. App. 3d 489, 490-92 (1994) (plaintiff injured when
the bicycle he was riding collided with a tree that had fallen across the bike path); Majewski v.
Chicago Park District, 177 Ill. App. 3d 337, 338-340 (1988) (plaintiff injured by broken glass on
football field). Moreover, the plaintiff has not cited any case law that discusses immunity under
section 3-106 in terms of whether a movable item was in its intended location. Under section 3-
106, one of the issues that must be determined is whether the hazard was a “condition” of the
property. Based on our supreme court’s decision in Moore, we hold that the pole vault pole on the
ground in the pedestrian pathway was a condition of the property. Accordingly, the trial court did
not err in granting summary judgment on count I of the plaintiff’s amended complaint. Because
summary judgment on count I was proper based on section 3-106 of the Immunity Act, we need
not address the plaintiff’s additional arguments relating to whether summary judgment was also
proper under sections 3-108, 2-109, and 2-201 of the Immunity Act.
¶ 43 C. Willful and Wanton Conduct
¶ 44 Finally, the plaintiff argues that the trial court erred in granting summary judgment for the
defendant on her claim for willful and wanton conduct. Section 3-106 of the Immunity Act
provides an exception for willful and wanton conduct. “Willful and wanton” is defined in the
Immunity Act as “a course of action which shows an actual or deliberate intention to cause harm
- 17 -
2020 IL App (2d) 191124-Uor 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 2018). “This definition shall apply in any
case where a ‘willful and wanton’ exception is incorporated into any immunity under this Act.”
Id.¶ 45 Utter indifference to, or conscious disregard for, the safety of others consists of more than
mere inadvertence, incompetence, or unskillfulness. Geimer v. Chicago Park District, 272 Ill.
App. 3d 629, 637 (1995). Willful and wanton conduct requires a conscious choice by a defendant
to either cause harm or to engage in a course of action with knowledge that it involves a risk of
serious danger to another. Doe v. Bridgeforth, 2018 IL App (1st) 170182, ¶ 46. “One must
consider the totality of the circumstances in deciding whether a defendant acted with utter
indifference or conscious disregard.” In re Estate of Stewart, 2016 IL App (2d) 151117, ¶ 75.
“Ordinarily, whether specific acts constitute willful and wanton conduct is a question of fact that
is reserved for the jury.” Bielema ex rel. Bielema v. River Bend Community School District No. 2,
2013 IL App (3d) 120808, ¶ 12. “However, where the record shows absolutely no evidence that
the defendant displayed either an utter indifference to or a conscious disregard for the plaintiff’s
safety, then the court may properly decide the issue as a matter of law.” Mitchell v. Special
Education Joint Agreement School District No. 208, 386 Ill. App. 3d 106, 111 (2008).
¶ 46 In the present case, the plaintiff’s allegations do not establish a deliberate intention to cause
harm or an utter indifference to or conscious disregard for the safety of others. There is no evidence
to show that the defendant knew about the alleged dangerous condition and failed to correct it.
See, e.g., Muellman v. Chicago Park District, 233 Ill. App. 3d 1066, 1069 (1992) (willful and
wanton conduct found to exist where a public entity knew of a dangerous condition yet took no
action to correct the condition). Further, while we disagree with the defendant’s assertion at oral
- 18 -
2020 IL App (2d) 191124-Uargument that a prior injury on the same day would be required to establish willful and wanton
conduct, we agree that evidence of previous injuries on that day or at previous track meets could
have created a genuine issue of material fact on the issue. See, e.g., Carter v. New Trier East High
School, 272 Ill. App. 3d 551, 557-58 (1995) (willful and wanton conduct found where a public
entity was aware of prior injuries caused by a dangerous condition but took no action to correct
it). Here, however, the plaintiff did not present evidence of any other injuries on the day of the
track meet at issue or at any previous track meets.
¶ 47 The evidence also does not show an utter disregard for safety as the defendant’s employees
taped off designated areas and provided rooms for the athletes to store their belongings and a stand
for the athletes to store their pole vault poles. That these precautions did not prevent injury does
not establish willful and wanton conduct. Mere ineffectiveness does not establish a course of
action demonstrating that a defendant was utterly indifferent or consciously disregarded the safety
of others. See, e.g., Bielema, 2013 IL App (3d) 120808, ¶ 19 (affirming grant of summary
judgment to school district on claim for willful and wanton conduct; finding district “took some
action to remedy the danger posed by” a spilled liquid even though school principal’s husband
“could have done more to warn” the student of the spill). Accordingly, the standard of willful and
wanton conduct simply cannot be met in this case.
¶ 48 III. CONCLUSION
¶ 49 For the reasons stated, the judgment of the circuit court of Kendall County is affirmed.
¶ 50 Affirmed.
- 19 -