Tuesday, November 18th, 2014

Governmental Immunity Takes a Slide

In the recent case of Bowman v. Chicago Park District, the First District Appellate Court reversed a trial court’s grant of summary judgment finding that a thirteen year old was not the intended user of a slide, where an ordinance prohibited children twelve and over from using playgrounds.

Plaintiff brought suit on behalf of her thirteen year old daughter, who fractured her ankle while riding a slide at the park. Witness testimonies indicated that the Chicago Park District (CPD) had known of the defective slide nearly a year before plaintiff’s injury and had done nothing to remedy the defect. Additionally, evidence indicated that there were no signs posted at the park indicating the range of ages allowed to use the playground.

In its motion for summary judgment, CPD argued that it did not owe any duty to plaintiff because the slide was only intended for children under twelve and that the defect was an open and obvious risk. Subsequently, the trial court granted the CPD’s motion for summary judgment based on its determination that the plaintiff was not within the intended class of people to use the slide, and therefore did not address whether the defect was an open and obvious risk.

Specifically, the ordinance in question states that “[n]o person the age of twelve years or older shall use playground equipment designed for persons under the age of twelve years.” Chicago Park District Code ch. 7 § B(3)(e) (amended July 28, 1992). Additionally, the Illinois Local Governmental and Governmental Employees Tort Immunity Act (the Act) establishes that the duty owed is to “people whom the entity intended and permitted to use the property.” 745 ILCS 10/3-102(a). Therefore, it was CPD’s argument that no duty existed because anyone twelve years or older was not “intended or permitted” to use the slide.

However, the First District Appellate Court disagreed. In reversing, the Court held that there was no precedent holding a child to know municipal ordinances, even going so far as to quip “What would prompt a 13-year-old child to observe a slide and think, ‘Am I really the intended user of this slide?’”

Additionally, the Court also found that CPD had failed to inform park users of any age that the playground was intended only for children younger than twelve. Neither the ordinance nor the CPD’s website indicated that this particular park’s playground was only intended for children younger than twelve.

In reversing the trial court’s grant of summary judgment, the First District remanded the case to determine if the defect was an open obvious risk and whether the failure to repair the slide was willful and wanton conduct.

Kelly A. Cahill

Author: Kelly A. Cahill