No sign so the 13-year-old girl did not know the park was only for kids under age 12. (Like kids read signs anyway.)Posted: December 15, 2014
A broken slide in a park injures the plaintiff. The defendant city says they are not liable because the 13-year-old should have seen the hole, and the park was only for kids under age 12 anyway.
How can a sign warn a kid when the law created the attractive nuisance claim for kids? A kid sees a sign and is going to stop and read the signs? Signs are for adults.
State: Illinois, Appellate Court of Illinois, First District Fifth Division
Plaintiff: Artenia Bowman, Individually and as Mother and Next Friend of Cheneka Ross
Defendant: The Chicago Park District
Plaintiff Claims: (1) that defendant failed to establish as a matter of law that CPD (Chicago Park District) had designated the park and the slide for only children under 12 years old; (2) that the danger created by the hole at the bottom of the curved slide was not open and obvious; and (3) that CPD’s failure to repair the slide, after being informed almost a year earlier of the danger, constituted willful and wanton conduct
Defendant Defenses: (1) that it did not owe any duty to plaintiff because she was not an intended user of the slide (2) that the hole at the bottom of the curved slide was an open and obvious risk
Holding: for Plaintiff, sent back for trial
The case is written a little differently. The decision only references all the affidavits and depositions of the witnesses and draws its facts and conclusions that way.
The case is pretty simple. A slide in a Chicago city park had a hole in the bottom. The 13-year-old plaintiff slid down the slide catching her foot in the hole and fractured her ankle. Her mother sued on her behalf.
The trial court dismissed the case on the defendant’s motion for summary judgment. The trial court found the park was only for 12 year olds and younger kids and since the plaintiff was 13, she could not sue. The plaintiff appealed the decision.
Analysis: making sense of the law based on these facts.
The decision at the appellate level found the following facts:
There was no sign posted at the park indicating the park was only for a specific set of patrons. The park district (Chicago Park District or CPD) had passed an ordinance that restricted the park to only kids 12 and younger. The park district had been notified numerous times for over 18 months by several different people that the slide was in need of repair. The CPD knew that the slide was in need of repair. The plaintiff had gone to the park with other kids who were younger, and this was her first time at the park.
Although the CPD had passed an ordinance on the use of the park, the CPD had never promulgated the ordinance (so that anyone knew about the rule). The CPD owes a duty of care to intended and permitted users of park property. The ordinance limiting the use of the park has the same force as a municipal ordinance. Accordingly, the CPD argued that they were immune from liability because the park was designed for kids younger than the plaintiff.
The issue revolved around the failure of the park to let the public know about the rules.
It is a long-established principle that members of the public must have a reasonable opportunity to be informed of an ordinance so that they may conform their conduct accordingly and avoid liability under the ordinance.
Nor was there anything in any CPD code stating that the park in question was designated for children under age 12. There were no signs at the playground stating the park was only for children under the age of 12. Which the court interpreted as: “Playgrounds are designed for children. What would prompt a 13-year-old child to observe a slide and think, “am I really the intended user of this slide?“
Because no one knew and because the park had no sign, there was no way the plaintiff could know that she was not supposed to use the slide. The court ruled.
We must reverse the trial court’s grant of summary judgment which was granted solely on the basis that a 13-year-old was not an intended user of the slide.
First, the defendant does not cite a case where a child was charged with the responsibility of knowing municipal ordinances, without a sign or other notice, nor can we find such a case.
Second, defendant failed to inform park users of any age, by any means, that this park and the slide were intended for children younger than age 12.
The appellate court sent the case back to the trial court.
So Now What?
If you have the ability to make rules, then follow the rules when you make rules, to make sure your rules are correctly in place. Under the law post your rules at the places, the rules were created to apply to so everyone knows the rules.
Realistically, if you want kids not to get hurt, rules and signs are not going to do it. The rules are there to protect the park, not the kids. How many kids read signs?
Are we going to have a new way of warning children? “Mom I’m going to out to play.” “OK dear, but be back before dark and make sure you read all the signs that may apply to you.”
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