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.)

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.

Bowman v. The Chicago Park District, 2014 IL App (1st) 132122; 2014 Ill. App. LEXIS 648

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

Year: 2014

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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Bowman v. The Chicago Park District, 2014 IL App (1st) 132122; 2014 Ill. App. LEXIS 648

Bowman v. The Chicago Park District, 2014 IL App (1st) 132122; 2014 Ill. App. LEXIS 648

Artenia Bowman, Individually and as Mother and Next Friend of Cheneka Ross, a Minor, Plaintiff-Appellant, v. The Chicago Park District, a Municipal Corporation, Defendant-Appellee.

No. 1-13-2122

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

2014 IL App (1st) 132122; 2014 Ill. App. LEXIS 648

September 5, 2014, Decided

SUBSEQUENT HISTORY: As Corrected.

PRIOR HISTORY: [**1] Appeal from the Circuit Court of Cook County. No. 11 L 7865. The Honorable Kathy M. Flanagan, Judge Presiding.

Bowman v. Chi. Park Dist., 2014 IL App (1st) 132122-U, 2014 Ill. App. Unpub. LEXIS 1420 (2014)

DISPOSITION: Reversed and remanded.

COUNSEL: For Appellant: Paul A. Greenberg, Briskman Briskman & Greenberg, of Chicago, IL.

For Appellee: George P. Smyrniotis, Risk Management Senior Counsel, Robert L. Raymond, Marie Christelle Levesque (Legal Extern), Chicago Park District, of Chicago, IL.

JUDGES: JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Taylor concurred in the judgment and opinion.

OPINION BY: GORDON

OPINION

[*P1] Plaintiff Artenia Bowman, individually and as mother and next friend of Cheneka Ross, a minor, filed suit in the circuit court of Cook County against the Chicago Park District (CPD) alleging willful and wanton conduct for failing, for almost a year, to repair a damaged slide. Plaintiff’s daughter, Cheneka Ross, age 13, was going down a slide on April 21, 2011, when her foot became caught in a hole in the plastic at the bottom of the slide, resulting in a fractured ankle. Defendant CPD owns the property and maintains the playground equipment, including the slide.

[*P2] Defendant filed a motion for summary judgment (735 ILCS 5/2-1005 (West 2010)) claiming: (1) that it did not owe any duty to Cheneka because she was not an intended user of the slide since she was 13 years old and the slide was intended for children aged under 12; and (2) that the hole at the bottom of the curved slide was an open and obvious risk that the 13-year-old [**2] should have avoided. Plaintiff, in her response to defendant’s motion for summary judgment, claims.

[*P3] The trial court granted defendant’s motion for summary judgment, finding that 13-year-old Cheneka had violated a CPD ordinance by using a slide that had been designed for children under 12 years old, although there were no signs to indicate an age limit. Since the trial court found that Cheneka was not an intended user of the slide, it did not discuss whether the damage was open and obvious or whether CPD’s failure to repair the slide was willful and wanton conduct.

[*P4] On this direct appeal, plaintiff argues: (1) that the trial court erred by granting defendant summary judgment on the basis that 13-year-old Cheneka was not an intended user of defendant’s slide; (2) that the danger created by the hole at the [**3] bottom of the curved slide was not open and obvious; and (3) that CPD’s failure to repair the slide, after being informed of its condition almost a year earlier, constituted willful and wanton conduct.

[*P5] For the following reasons, we find the trial court erred in granting summary judgment on the basis that Cheneka was not the intended user of the slide and reverse. We remand for the trial court to decide whether the slide’s condition was open and obvious and whether CPD’s failure to repair the slide after being notified was willful and wanton conduct.

[*P6] BACKGROUND

[*P7] I. The Complaint

[*P8] The complaint at issue on this appeal is plaintiff’s second amended complaint, which was filed on March 1, 2012. The suit seeks damages for injuries sustained by plaintiff’s daughter, Cheneka, when she damaged her ankle on a park slide on April 21, 2011. The complaint alleges that Cheneka was using the slide when her foot came in contact with a hole that caused a fracture in her ankle; and that defendant CPD was aware that the slide was dangerous and had failed to repair it. Count I alleges defendant acted willfully and wantonly toward users of the slide by failing to repair the slide even though it had received [**4] numerous complaints from the community. Count II sought recovery on behalf of her daughter’s medical expenses under the Rights of Married Persons Act, commonly known as the Family Expense Act. 750 ILCS 65/15 (West 2010).

[*P9] II. Defendant’s Motion for Summary Judgment

[*P10] On January 13, 2013, defendant, as noted, filed a motion for summary judgment, claiming: (1) that it did not owe any duty to Cheneka because she was not an intended user of the slide; and (2) that the slide was an open and obvious risk that the 13-year-old should have avoided.

[*P11] CPD argued that it had an ordinance stating that children age 12 and older should not use playground equipment designed for children under the age of 12. CPD claims that, since Cheneka was 13 years old, she violated the ordinance, and CPD was immune from liability.

[*P12] CPD also claimed that the danger at the bottom of the curved slide was open and obvious, and that the 13-year-old should not have used the slide because a reasonable child would have avoided it. CPD also claimed that, since the 13-year-old was unsupervised, she should be old enough to appreciate obvious risks; however, issues of supervision were not raised on appeal.

[*P13] Plaintiff responded to the motion contending [**5] that defendant had failed to establish that the 13-year-old was not the intended user of the slide. She claimed that the park was open to the public and no sign was present in the park prohibiting children age 12 and older from using the slide. Plaintiff also contended that the hole at the bottom of the curved slide was not open and obvious because she was unable to see the hole prior to being injured. The slide was curved, which made it difficult for children to observe what was in front of them.

[*P14] III. Exhibits

[*P15] A. Cheneka Ross’s Deposition

[*P16] Cheneka testified in a discovery deposition that, on April 21, 2011, she went with friends to a park located at 1420 North Artesian Avenue1 to play a game of tag. Most of her friends were several years younger than her, including her brother. It was around 7 p.m. and starting to become dark. She had played at this park before and had been there several times. While playing tag, Cheneka ran to the slide to avoid being tagged by one of her friends. She went up the slide and when she descended, her foot became caught in a hole in the plastic, at the bottom of the slide, causing a fractured ankle requiring surgery.

1 The parties agree that the park is known [**6] as Park 399.

[*P17] Cheneka testified that she did not observe the hole at the bottom of the slide before her foot became caught. She did not observe the crack from the top of the slide and identified a photograph of the slide. The photograph, which was introduced at the deposition, showed that the slide was curved, and the top of the slide did not line up with the bottom.

[*P18] B. Artenia Bowman’s Affidavit and Deposition

[*P19] Artenia Bowman is Cheneka’s mother. In an affidavit attached to plaintiff’s response to the motion for summary judgment, Cheneka’s mother alleges that there were no signs posted which designated the age group for the playground. Specifically, there were no signs stating that the play equipment was intended for those 2 to 12 years old2 and that those 13 years or older were prohibited.

2 We note that this age range conflicts with the Chicago Park District Code (CPD Code), which states certain parks are designated for children under age 12. Chicago Park District Code ch. 7, § B(3)(e) (amended July 28, 1992).

[*P20] Cheneka’s mother testified that, after the incident, the park had been renovated, and after the renovation, new signs were posted stating that the park was intended for children [**7] under the age of 12.

[*P21] C. Juan Moreno’s Deposition

[*P22] Juan Moreno lives about 300 feet away from the park. Moreno testified in a discovery deposition that he goes to the park on a daily basis for a walk and some fresh air. He observed the damage to the slide for about a year and a half. He testified that the slide was “cracked really bad,” and it had a lot of water buildup at its bottom. Moreno had called 311 and was directed to CPD several times to report the broken slide’s condition before Cheneka was injured. Moreno testified that he spoke to an unnamed CPD supervisor in person, about a year prior to the incident, to complain about the slide. He also has contacted Alderman Roberto Maldonado’s office three times regarding the condition of the slide.

[*P23] Moreno testified that he still observed children playing on the broken slide despite its condition. He also mentioned that he observed older children at the park.

[*P24] D. Kathleen Oskandy’s Deposition

[*P25] Kathleen Oskandy, Alderman Maldonado’s chief of staff, spoke to Cheneka’s mother after the incident. Oskandy testified in a discovery deposition that she informed Cheneka’s mother that Moreno had already filed complaints with the alderman’s office [**8] about the slide before the incident. Oskandy reported the condition of the slide to CPD in July 2010 after being informed by Moreno.

[*P26] Oskandy provided a computer printout of the complaints regarding the park maintained by her office. It was a timeline of Moreno’s initial complaint, along with subsequent comments. The log showed a complaint made on July 29, 2010, about the slide’s condition and additional comments when CPD was contacted. On August 24, 2010, the log stated: “slide boarded up and waiting for repair.” One week prior to the incident in April 2011, the log stated, “slide west of park still broken.” On April 25, 2011, the log mentioned that Cheneka was injured and “[CPD] replaced slide for repair.”

[*P27] E. Gladys Ruiz’s Deposition

[*P28] Gladys Ruiz works in Alderman Maldonado’s office answering calls and inputting data. Ruiz explained in a discovery deposition the procedure of how staff entered complaints in the office computer. On July 29, 2010,3 Moreno had called the office, and Ruiz logged his complaint about the slide. She made a note about the damaged slide in the computer log. Ruiz interpreted the log provided by Oskandy and explained that Oskandy was the one that closed out the [**9] file on August 27 when Oskandy contacted CPD.

3 The computer printout of the log shows a date of July 29, but Ruiz’s deposition testimony states July 19.

[*P29] F. Robert Rejman’s Affidavit and Deposition

[*P30] Robert Rejman is the director of development and planning for CPD. His duties include developing policies for park district facilities and establishing and improving playgrounds. In an affidavit attached to defendant’s motion for summary judgment, Rejman stated that “he was personally familiar with Park 399” and he “reviewed the plaintiff’s photographs of the playground equipment and can say that this equipment is commonly in the design of playgrounds that are intended for users between the ages of two to twelve.” He additionally stated that a sign was posted at the park indicating that playground equipment is designed for children aged 2 to 124; however, his affidavit did not state when the sign was posted or whether the sign was posted at the time of 13-year-old Cheneka’s injury.

4 We note that this age range conflicts with the CPD Code, which states certain parks are designated for children under age 12. Chicago Park District Code ch. 7, § B(3)(e) (amended July 28, 1992).

[*P31] Rejman later testified [**10] in a discovery deposition that he visited the park only once at some unknown point before the incident. He stated that he was unaware if there were any signs posted outside the park designating the age range when he was there. We observe that this testimony conflicts with the affidavit, where he stated that a sign was posted in the park. Rejman also stated that he was unaware if there had been any recent improvements to the park. Rejman characterized the park as a “play lot,” a park with most equipment for children age 12 and under. He testified there are different areas for younger children because “it’s safer for kids within a certain age groups to have space to play *** within that age group. *** It’s important to [parents] to provide that safe zone of play for younger children.”

[*P32] G. John Shostack’s Deposition

[*P33] John Shostack is a maintenance foreman for CPD’s natural resources landscape maintenance department. He testified in a discovery deposition that he was assigned to the park in 2010, but was not assigned there at the time of the incident in 2011. Shostack claimed to have stopped by the park at least once a week when he was assigned to the park. He admitted that he was aware [**11] of the slide’s damaged condition in 2010. Shostack placed a work order in 2010 to have the slide repaired; however, it was not his job to follow up, as that task was assigned to a different department. Shostack testified that he remembered seeing a wooden board placed at the top of the slide to prevent use, and yellow caution tape surrounded the slide. Shostack could not recall how long the board or caution tape was present on the slide. He would put up caution tape as a courtesy on one day, and it would be absent the next time he was there. He also testified that he could not recall if any actual repairs were done on the slide while he was assigned to the park.

[*P34] IV. Trial Court’s Order Granting Summary Judgment

[*P35] On June 10, 2013, the trial court granted summary judgment to defendant CPD, finding that Cheneka had violated a CPD ordinance and was not an intended user:

“Here, there is a dispute as to whether the subject playground displayed a sign restricting the use of the playground to persons under the age of twelve. However, the Chicago Park District enacted an ordinance restricting the use of playgrounds to children under the age of twelve. The ordinance itself is the manifestation [**12] of the Park District’s intent vis-a-vis the use of the playground. As such, whether or not there was a sign on the subject playground, the minor Plaintiff here was not an intended user of it.”

[*P36] The trial court did not discuss whether the damage to the slide was open and obvious, or whether CPD’s failure to repair the slide was willful and wanton conduct. The trial court granted summary judgment solely on the ground that the 13-year-old was not an intended user because of her age.

[*P37] On July 13, 2013, plaintiff filed a notice of appeal, and this appeal followed.

[*P38] ANALYSIS

[*P39] Plaintiff Artenia Bowman appeals from an order of the circuit court of Cook County granting summary judgment in favor of defendant Chicago Park District.

[*P40] On this appeal, plaintiff argues: (1) that the trial court erred by granting defendant summary judgment on the basis that 13-year-old Cheneka was not an intended user of defendant’s slide; (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 of its condition almost a year earlier, constituted willful and wanton conduct.

[*P41] With respect to the first issue, defendant [**13] claims that Cheneka was not the intended user of the slide, and therefore, it is not liable. For the following reasons, we find the trial court erred in granting summary judgment on this ground and reverse. We remand for the trial court to decide whether the slide’s condition was open and obvious, and whether CPD’s failure to repair the slide after being notified was willful and wanton conduct.

[*P42] I. Standard of Review

[*P43] [HN1] A trial court is permitted to grant summary judgment only “if 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 2010). The trial court must view these documents and exhibits in the light most favorable to the nonmoving party. Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315, 821 N.E.2d 269, 290 Ill. Dec. 218 (2004). We review a trial court’s decision to grant a motion for summary judgment de novoOutboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 180 Ill. Dec. 691 (1992). De novo consideration means we perform the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578, 948 N.E.2d 132, 350 Ill. Dec. 63 (2011).

[*P44] [HN2] “Summary judgment is a drastic measure and should only be granted if the movant’s right to judgment is clear and free from doubt.” Outboard Marine Corp., 154 Ill. 2d at 102. However, “[m]ere speculation, conjecture, or guess is insufficient [**14] to withstand summary judgment.” Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328, 722 N.E.2d 227, 242 Ill. Dec. 738 (1999). A defendant moving for summary judgment bears the initial burden of proof. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624, 872 N.E.2d 431, 313 Ill. Dec. 448 (2007). The defendant may meet his burden of proof either by affirmatively showing that some element of the case must be resolved in his favor or by establishing “‘that there is an absence of evidence to support the nonmoving party’s case.'” Nedzvekas, 374 Ill. App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). In other words, there is no evidence to support the plaintiff’s complaint.

[*P45] “‘The purpose of summary judgment is not to try an issue of fact but *** to determine whether a triable issue of fact exists.'” Schrager v. North Community Bank, 328 Ill. App. 3d 696, 708, 767 N.E.2d 376, 262 Ill. Dec. 916 (2002) (quoting Luu v. Kim, 323 Ill. App. 3d 946, 952, 752 N.E.2d 547, 256 Ill. Dec. 667 (2001)). “‘To withstand a summary judgment motion, the nonmoving party need not prove his case at this preliminary stage but must present some factual basis that would support his claim.'” Schrager, 328 Ill. App. 3d at 708 (quoting Luu, 323 Ill. App. 3d at 952). We may affirm on any basis appearing in the record, whether or not the trial court relied on that basis or its reasoning was correct. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50, 594 N.E.2d 1344, 171 Ill. Dec. 824 (1992).

[*P46] II. Intended User of Slide

[*P47] CPD argues that, since Cheneka was not the intended user of the slide, it cannot be liable for her injuries. [HN3] As a local public entity, CPD is entitled to the protection of the Illinois Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/1-101 et seq. (West 2010)). [**15]

[*P48] In order for a municipality to have immunity under the Act, a duty must be owed under section 3-102 (745 ILCS 10/3-102 (West 2010)) for any of the subsequent immunity sections to apply. Swett v. Village of Algonquin, 169 Ill. App. 3d 78, 95, 523 N.E.2d 594, 119 Ill. Dec. 838 (1988). Section 3-102(a) states:

[HN4] “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 for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.” (Emphasis added.) 745 ILCS 10/3-102(a) (West 2010).

[*P49] Thus, [HN5] according to the Act, a municipality owes a duty of care only to those who are both intended and permitted users of municipal property. 745 ILCS 10/3-102(a) (West 2010). Because “the Act ‘is in derogation of the common law,'” we must construe it strictly against the municipal defendant. Vaughn v. City of West Frankfort, 166 Ill. 2d 155, 158, 651 N.E.2d 1115, 209 Ill. Dec. 667 (1995) (quoting Curatola v. Village of Niles, 154 Ill. 2d 201, 208, 608 N.E.2d 882, 181 Ill. Dec. 631 (1993)). “[A]n intended user of property is, by definition, also a permitted user; [**16] a permitted user of property, however, is not necessarily an intended user.” Boub v. Township of Wayne, 183 Ill. 2d 520, 524, 702 N.E.2d 535, 234 Ill. Dec. 195 (1998).

[*P50] “[T]he duty of a municipality depends on whether the use of the property was a permitted and intended use. [Citation.] Whether a particular use of property was permitted and intended is determined by looking to the nature of the property itself. [Citation.]” (Emphasis omitted.) Vaughn, 166 Ill. 2d at 162-63. “Intent must be inferred from the circumstances.” Sisk v. Williamson County, 167 Ill. 2d 343, 351, 657 N.E.2d 903, 212 Ill. Dec. 558 (1995).

[*P51] Defendant contends that, as a 13-year-old, Cheneka was not the intended or permitted user of the slide at the park. CPD claims, first, that this park was intended only for children 12 and younger. Second, chapter 7, section B(3)(e), of the CPD Code states:

“Playgrounds Designated for Persons under Twelve Years of Age.

[HN6] No 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).

[HN7] The CPD Code has the same force as a municipal ordinance. Chicago Park District v. Canfield, 382 Ill. 218, 223-24, 47 N.E.2d 61 (1943). Defendant claims it is immune from liability, because the 13-year-old violated the CPD Code by allegedly using equipment “designed” for younger children.

[*P52] [HN8] To determine whether plaintiff was an intended user of property, we [**17] look to the property itself to determine its intended use. Wojdyla v. City of Park Ridge, 148 Ill. 2d 417, 426, 592 N.E.2d 1098, 170 Ill. Dec. 418, (1992).

[*P53] Defendant cites Montano v. City of Chicago, 308 Ill. App. 3d 618, 624, 720 N.E.2d 628, 242 Ill. Dec. 7 (1999), where this court ruled that the defendant city was not liable when an adult pedestrian, who was injured on the pavement in an alleyway, had been violating an ordinance governing the use of alleys. The court found that there is no duty owed to pedestrians on thoroughfares not intended for pedestrian traffic. Montano, 308 Ill. App. 3d at 625.

[*P54] In Prokes v. City of Chicago, 208 Ill. App. 3d 748, 750, 567 N.E.2d 592, 153 Ill. Dec. 634 (1991), this court found the defendant city not liable when an adult bicyclist had been injured on a sidewalk. The city had an ordinance stating, “‘No person twelve or more years of age shall ride a bicycle upon any sidewalk in any district ***.'” Prokes, 208 Ill. App. 3d at 749 (quoting Chicago Municipal Code § 27-296 (1984)).

[*P55] In both Prokes and Montanto, the adult plaintiffs were not found to be intended users of the premises on which they were injured because they had violated a Chicago ordinance. However, defendant does not cite a case where a child was charged with the responsibility of knowing municipal ordinances, without a sign or other notice.

[*P56] In addition, nothing in the record shows that even adult members of the public had any means of knowing that CPD had allegedly designated this particular park for a certain age group. [HN9] Publication [**18] of ordinances is necessary so that the public can be informed of the contents of ordinances. City of Rockford v. Suski, 90 Ill. App. 3d 681, 685, 413 N.E.2d 527, 46 Ill. Dec. 87 (1980). 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. Schott v. People, 89 Ill. 195, 197-98 (1878). While the CPD Code prohibited children age 12 and over from playing on playgrounds “designed” for children younger than 12, nothing in the CPD Code stated that this particular park was designated for children under age 12 or that this slide was designed for children under age 12. The CPD website for the park, attached to plaintiff’s response to defendant’s motion for summary judgment, mentions no age range, only stating: “This park features a playground and swings and green space. It is an active community park.”

[*P57] There were also no signs on the playground or any other indications that the playground was designated or designed for children under 12 years old. Plaintiff states in her affidavit that the park did not have a sign designating the playground for younger children. Robert Rejman, CPD’s director of development and planning, admitted at his deposition that he did not [**19] know whether there was a sign posted. Nothing in the record shows that CPD took any measures to prevent children age 12 and older from using this park. 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?”

[*P58] CPD stated that plaintiff presented no case or legal authority to support the assumption that all community members are intended users of a park called a “community park.” However, [HN10] it is the defendant’s burden to prove that it is immune from liability. Bubb v. Springfield School District 186, 167 Ill. 2d 372, 377-78, 657 N.E.2d 887, 212 Ill. Dec. 542 (1995); Van Meter v. Darien Park District, 207 Ill. 2d 359, 370, 799 N.E.2d 273, 278 Ill. Dec. 555 (2003). In addition, CPD has pointed to no legal authority claiming that the public generally is not allowed to use public parks.

[*P59] Plaintiff contends that CPD did not follow the administrative provisions in chapter 7, section C, of the CPD Code for designating the playground as solely for children under the age of 12 years old. However, we do not consider this issue, because [HN11] issues not raised in the trial court are waived and may not be considered for the first time on appeal. Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 536, 662 N.E.2d 1248, 215 Ill. Dec. 108 (1996). Nothing in plaintiff’s complaint or her response to defendant’s motion for summary judgment argued that CPD failed to follow its own administrative procedures under [**20] chapter 7, section C, of the CPD Code.

[*P60] Defendant argues that placing signage is discretionary, and it has no duty to post its ordinances at every park. The CPD Code is available online; however, the Code does not state which parks have been designated for a certain age group. [HN12] An ordinance is invalid if a municipality cannot prove it was published (Suski, 90 Ill. App. 3d at 685), and here there is no showing that it was published.

[*P61] CONCLUSION

[*P62] 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.

[*P63] 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.

[*P64] 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.

[*P65] For these reasons, we must reverse. We remand for the trial court to decide whether the slide’s condition was open and obvious, and whether CPD’s failure to repair the slide after being notified was willful and wanton conduct.

[*P66] Reversed and remanded.


Suit against a city for construction retaining wall in City Park identifies defenses to be employed to protect park patrons.

Remember each state (and sometimes city) has different state immunity acts. This analysis only applies to Dallas Texas. What is interesting is city could be held liable for gross negligence.

Mitchell v. City of Dallas, 855 S.W.2d 741; 1993 Tex. App. LEXIS 1714

State: Texas

Plaintiff: Saundra Harris Mitchell and Jan P. Mitchell, Individually and as Next Friends of Ashley J. Harris

Defendant: City of Dallas

Plaintiff Claims: City failed to warn park users of the steep drop-off and failed to construct a fence or other barrier around this dangerous area

Defendant Defenses: Texas Tort Claims Act

Holding: Reversed and remanded for trial

Year: 1993

State tort claims acts very greatly from state to state. In many states, it is impossible to sue the state and in others, it is quite easy. Some states limit the amount of recovery and the type of claims, in others not so much. If you work for a city, county or state as part of the parks, recreation or open space program, it will be beneficial to learn your state’s tort claim act and your requirements under it.

In this case, the City of Dallas, Texas, the defendant constructed a 15’ to 25’ retaining wall to stop erosion next to a creek. The top of the wall was next to a sidewalk and a restroom. The plaintiff minor was riding his bicycle on the sidewalk when he fell off and over the wall.

The plaintiff through his mother and father sued the city for his injuries. At the trial court level the city filed a motion for summary judgment and won. The plaintiff’s appealed.

Several issues in the decision dealing with the intricacies of the Texas Tort Claims Act will be skipped in this review because it applies solely to Texas.

Summary of the case

The first interesting issue was whether the claims of the plaintiff were governed by common law or statute. Meaning did the Texas law on land owners apply or did the law that existed prior to the statute concerning landowners apply. Said another way, did the ability to establish and create city parks occur because it was a proprietary function of a city. State statutes state that “operation of parks and zoos is a governmental function.”

The difference between a proprietary function and a governmental function will define the different claims and possible recoveries that are available. In this case, the appellate court held that the park was covered by the statute and the creation, care; maintenance of the park was governmental. As such, claims had to come under the Texas Tort Claims Act.

The next issue was the standard of care owed by the city to park users. The plaintiff claimed they were invitees, and as such, owed a higher standard of care than a trespasser. An invitee is a person the landowner invites to the land and receives a benefit from the invites’ presence on the land. The plaintiff argued that because they paid taxes, they were invitees.

There are three definitions of people coming upon the land; Trespassers, Licensees and Invitees. A landowner owes little duty to a trespasser, only owes a licensee a duty to refrain from wilful, wanton or gross negligence, and owes an invite the highest degree of care.

However, the payment of taxes argument did not fly with the court. Under the statute, the standard of care owed by a city to park users was that of a licensee.

The duty owed by the City to park users under the Texas Tort Claims Act is the duty that a private person owes to a licensee. An owner or occupier of land must refrain from injuring a licensee by willful, wanton, or gross negligence. An owner or occupant must also warn a licensee of any dangerous condition, or make the condition reasonably safe, if the land owner has actual knowledge of the dangerous condition, and the licensee does not.   

Under the law of Texas the city, to be liable, must be grossly negligent.

Gross negligence is defined as “such an entire want of care as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the person affected.

In a motion for summary judgment, the party opposing the motion must only create a question about how the law applies to the facts to have the motion denied rather than prove any issues. The city to win on a motion for summary judgment must conclusively negate at least one of the essential elements of the plaintiff’s case to win. Here, the plaintiff’s created a question as to whether the construction of the wall was done in a wilful, wanton or grossly negligent manner.

The next issue was whether the city had notice of the defective condition. The city presented three affidavits from officials saying they had never heard of problems with the wall. However, the court found that knowledge was more than affirmatively not knowing about problems.

The City relies on affidavits from three park officials to show that it lacked actual knowledge of any dangerous condition. The affidavits state that the City had no prior notice of a defect, dangerous condition, or similar accident. However, lack of notice from third parties does not conclusively negate actual knowledge. The fact that the owner or occupier of premises  created a condition that posed an unreasonable risk of harm may support an inference of knowledge.

Knowledge can be anyone in the employee of the city.

In conclusion, the court stated:

The establishment and maintenance of municipal parks are governmental functions under the Texas Tort Claims Act. The City is immune from liability for any claims involving the design of the gabion wall at Hamilton Park. However, the City is not immune from liability for claims based on the construction or maintenance of the wall. The duty owed by the City to park users is the same duty owed by a private person to a licensee.

We hold that the trial court erred in granting summary judgment. There are genuine fact issues concerning (1) gross negligence 5 in the construction and maintenance of the gabion wall, and (2) the failure to warn of or correct a dangerous condition. 6 We sustain the Mitchell’s second and third points of error.

5  The duty owed to a licensees being a duty to refrain from injuring by willful, wanton, or gross negligence.

6  The licensor must also warn of a dangerous condition, or make it reasonably safe, if the licensor has actual knowledge of the condition and the licensee does not have such knowledge.

So Now What?

The most important thing to take away from this decision is the vast differences between state tort claims act. In some states, this same fact situation would not create liability and in some states very few of the state tort claims defenses would work.

Of interest was the issue that the city to be found liable had to be found wilful, wanton or grossly negligent. The decision does not state whether if a jury finds the city was wilful, wanton or grossly negligent if increased damages are available to the plaintiff. Most state tort claims acts specifically deny additional damages.

Also not discussed whether the Texas Recreational Use Statute applied to parks. Since parks are free, many states include state, county and city land in the definition of land protected by recreational use statutes. In most states, this is the first and best defense to claims arising from parks and open space.

What do you think? Leave a comment.

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Article in the Atlantic says being overprotective of kids creates more problems. Kids need risk to learn and grow and deal with risk later in life.

Subtitle says it all! “A preoccupation with safety has stripped childhood of independence, risk taking, and discovery—without making it safer. A new kind of playground points to a better solution.”

You must read the article. I won’t try and paraphrase what a great job the author did.  Here are some quotes from the article: The Overprotected Kid

It’s hard to absorb how much childhood norms have shifted in just one generation. Actions that would have been considered paranoid in the ’70s—walking third-graders to school, forbidding your kid to play ball in the street, going down the slide with your child in your lap—are now routine.

One very thorough study of “children’s independent mobility,” conducted in urban, suburban, and rural neighborhoods in the U.K., shows that in 1971, 80 percent of third-graders walked to school alone. By 1990, that measure had dropped to 9 percent, and now it’s even lower.

Over the years, the official consumer-product handbook has gone through several revisions; it is now supplemented by a set of technical guidelines for manufacturers. More and more, the standards are set by engineers and technical experts and lawyers, with little meaningful input from “people who know anything about children’s play,” says William Weisz, a design consultant who has sat on several committees overseeing changes to the guidelines.

“Reasonable risks are essential for children’s healthy development,” says Joe Frost, an influential safety crusader.

Children, she concluded, have a sensory need to taste danger and excitement; this doesn’t mean that what they do has to actually be dangerous, only that they feel they are taking a great risk.

And all adults also!

We might accept a few more phobias in our children in exchange for fewer injuries. But the final irony is that our close attention to safety has not in fact made a tremendous difference in the number of accidents children have. According to the National Electronic Injury Surveillance System, which monitors hospital visits, the frequency of emergency-room visits related to playground equipment, including home equipment, in 1980 was 156,000, or one visit per 1,452 Americans. In 2012, it was 271,475, or one per 1,156 Americans.

I love this quote.

“The advent of all these special surfaces for playgrounds has contributed very little, if anything at all, to the safety of children,” he told me. Ball has found some evidence that long-bone injuries, which are far more common than head injuries, are actually increasing.

Is it Risk Homeostasis or is it that kids don’t know or care about surfaces, they just need to have fun!

“There’s a fear” among parents, Roger Hart told me, “an exaggeration of the dangers, a loss of trust” that isn’t clearly explainable.

Wow, very interesting.

If a mother is afraid that her child might be abducted, her ironclad rule should not be Don’t talk to strangers. It should be Don’t talk to your father.

This is simply life. It probably at some point in time was said thousands of times a day. Now hearing it once is enough to be quoted in an article. The conversation is between two kids.

“You might fall in the creek,” said Christian.

“I know,” said Gideon.

For once there is an article about children playing that did not talk about the harm of computers. Why because children who have the opportunity to play don’t want to spend time on computers. Play is more fun. It is more fun to go out and explore than to shoot something on a screen!

Do Something

However what is described in the article just sounds like my life growing up. Getting skinned knees and bruises was called growing up. We learned first aid on ourselves. This worked, this burned and this made a mess and did not help.

Read the Article!

See The Overprotected Kid

What do you think? Leave a comment.

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Hong, v. Hockessin Athletic Club, 2012 Del. Super. LEXIS 340

Hong, v. Hockessin Athletic Club, 2012 Del. Super. LEXIS 340

Jahndee Hong, as Guardian/Next Friend of Jaden Hong, a minor, Plaintiff, v. Hockessin Athletic Club, and Eastern Athletic Clubs, Llc, a Delaware limited liability company, Defendants.

C.A. No. N12C-05-004 PLA

SUPERIOR COURT OF DELAWARE, NEW CASTLE

2012 Del. Super. LEXIS 340

June 4, 2012, Submitted

July 18, 2012, Decided

JUDGES: Peggy L. Ableman, Judge.

OPINION BY: Peggy L. Ableman

OPINION

This 18th day of July, 2012, it appears to the Court that:

1. Defendants Hockessin Athletic Club (“HAC”) and Eastern Athletic Clubs, LLC (collectively, “Defendants”) have filed a Motion to Dismiss pursuant to Superior Court Civil Rule 12(b)(6), asserting that Plaintiff’s negligence claim is barred by a liability waiver that was executed as part of the club’s Membership Agreement. For the reasons set forth below, the Court agrees that the liability waiver bars Plaintiff’s claim. Accordingly, Defendants’ Motion to Dismiss is GRANTED.

2. Plaintiff Jahndee Hong (“Hong”) brought this negligence action against Defendants on behalf of her son Jaden Hong (“Jaden”). On March 16, 2011, when he was three years old, Jaden fell from indoor playground equipment at the HAC and broke his right arm. 1 On October 30, 2010, Hong and her husband Minsuk Hong executed a Membership Application and Agreement (“Agreement”) with the HAC. The membership application listed the names and ages of the Hongs’ three children, including Jaden. The Agreement includes a waiver and release of [*2] liability. The Agreement defines a Member as “the individual signer and any and all other persons included in his/her membership with HAC.” Under the heading “WAIVER AND RELEASE OF LIABILITY AND INDEMNITY AGREEMENT,” the Agreement provides as follows:

Member hereby acknowledges that in using the facilities, programs and equipment of HAC, he/she does so entirely at his/her own risk and assume[s] the risk of any injury and/or damage while engaging in any physical exercise or activity or use of any club facility on the premises. This assumption of the risk included, without limitation, Member’s use of any exercise equipment (mechanical or otherwise), the locker room, sidewalk, parking lot, stairs, pool, whirlpool, sauna, steam room, racquet courts, lobby hallways, or any equipment in the facility. Member further agrees to assume the risk in participating in any activity, class, program, instruction, or any event sponsored by HAC. Insurance liability conditions and HAC prohibit any personal training lessons or services by non-HAC staff. Violations of such can result in membership termination.

By executing this Agreement, Member does HEREBY WAIVE, RELEASE AND FOREVER DISCHARGE, HAC and its [*3] past, present and future subsidiaries, affiliates, successors, predecessors, executors, committees, fiduciaries, trustee, employee benefit plans, workers compensation carriers, plan administrators, administrators, partners, employees, insureds, assigns, agents, and representatives in their personal and professional capacities (collectively “HAC”), from all claims, demands, injuries, damages, actions or causes of action, and from all acts of active or passive negligence on the part of such company, corporation, club, its servants, agents, or employees of any nature whatsoever, including attorneys’ fees and costs arising out of or connection with the aforementioned activities. Member further agrees to indemnify and hold harmless HAC from any claims, demands, injuries, damages, actions or causes of action, loss, liability, damage or cost which HAC may incur due to Members[‘] presence at or use of the facility. Member further agrees that the foregoing warranty, waiver and indemnity agreement is intended to be as broad and inclusive as permitted by the law of the State of Delaware and that if any portion is deemed to be invalid, it is expressly agreed that the remaining terms shall remain [*4] in full legal force and effect.

MEMBER ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND FULLY UNDERSTANDS THAT IT IS A RELEASE OF LIABILITY AND EXPRESS ASSUMPTION OF RISK AND INDEMNIFICATION. MEMBER IS AWARE AND AGREES THAT BY EXECUTING THIS WAIVER AND RELEASE, HE/SHE IS GIVING UP THE RIGHT TO BRING LEGAL ACTION OR ASSERT A CLAIM AGAINST HAC FOR ITS NEGLIGENCE AND/OR FOR ANY DEFECTIVE PRODUCT THAT MAY BE IN THE FACILITY OR ON ITS PREMISES. BY SIGNING BELOW, MEMBER SIGNIFIES THAT HE/SHE HAS READ AND VOLUNTARILY SIGNED THIS AGREEMENT AND THAT NO ORAL REPRESENTATIONS, STATEMENTS OR INDUCEMENTS APART FROM THIS FOREGOING AGREEMENT HAVE BEEN MADE.

HAC contends that the liability waiver bars Plaintiff’s suit. Plaintiff responds that the waiver does not bar Plaintiff’s claim because the waiver, which refers to “all acts of active or passive negligence […] arising out of or in connection with the aforementioned activities,” is ambiguous and can be interpreted as applying only to the Member’s assumption of the risk of HAC’s negligence in participating in “any activity, class, program, instruction, or any event sponsored by HAC.”

1 Complaint at ¶ 8. The Complaint makes no specific [*5] allegations as to what was wrong with the playground equipment or how HAC’s negligence caused or contributed to Jaden’s injury. Rather, the Complaint alleges that HAC was negligent in that they (a) failed to take reasonable measures to make premises safe for invitees; (b) failed to properly and reasonably inspect the premises; (c) failed to take reasonable measures to make the premises safe; (d) failed to supervise the plaintiff and other invitees on the property to make sure the invitees were safe at all relevant times herein; and (e) were otherwise negligent. See Compl. at ¶ 9. The Court observes that [HN1] playground injuries are a fairly typical hazard of childhood and that the mere fact that a child broke his arm while at the playground ordinarily would not, by itself, demonstrate negligence on the part of the owner of the premises. The Court further notes that [HN2] Delaware’s rules of pleading prohibit plaintiffs from using a complaint as a fishing expedition to see whether a wrong has been committed. See, e.g., Leary v. Eschelweck, 2012 Del. Super. LEXIS 206, 2012 WL 1664236, at *2 (Del. Super. May 8, 2012). The Complaint as presented in this case comes dangerously close to running afoul of that rule.

3. The Court [*6] must first determine whether to adjudicate Defendants’ motion as presented or convert it to a motion for summary judgment. 2 [HN3] Superior Court Civil Rule 12(b)(6) provides that a motion to dismiss shall be treated as a motion for summary judgment under Rule 56 if “matters outside the pleadings are presented to and not excluded by the Court.” 3 HAC has submitted a copy of the signed liability waiver at issue, which Hong also addresses in her Response. Therefore, this motion will be treated as one for summary judgment.

2 Slowe v. Pike Creek Court Club, Inc., 2008 Del. Super. LEXIS 377, 2008 WL 5115035, at 2 (Del. Super. Dec. 4, 2008).

3 Super. Ct. Civ. R. 12(b)(6).

[HN4] When considering a motion for summary judgment, the Court examines the record to determine whether genuine issues of material fact exist and to determine whether the moving party is entitled to judgment as a matter of law. 4 [HN5] Summary judgment will be granted if, after viewing the evidence in the light most favorable to the non-moving party, there are no material facts in dispute or judgment as a matter of law is appropriate. 5

4 Super. Ct. Civ. R. 56(c).

5 Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 879-80 (Del. Super. 2005).

4. In the factual context of this [*7] case, the question of whether the liability waiver that Hong signed as part of the Membership Agreement with HAC now bars her claim against Defendants is an easy one. In Slowe v. Pike Creek Court Club, which involved a guest who fell on a set of negligently maintained stairs in the swimming pool at the Pike Creek Court Club, a forerunner to the Hockessin Athletic Club, this Court held that [HN6] “a provision exonerating a party for its own negligence will only be given effect if the language makes it crystal clear and unequivocal that the parties specifically contemplated such a release.” 6 [HN7] Delaware courts have held that the requirement of “crystal clear and unequivocal” language is satisfied where contractual provisions include language “specifically refer[ring] to the negligence of the protected party.” 7 The Court found that the liability release at issue in Slowe included no specific language indicating that the parties contemplated that the waiver would extend to PCCC’s own acts of negligence. 8 Moreover, as the Court noted in Slowe, PCCC’s liability release lacked “alternative language expressing that PCCC would be released for its own fault or wrongdoing,” concluding that the plaintiff [*8] could reasonably have concluded that the release would only relieve PCCC of liability for injuries or losses resulting from risks inherent in his use of the club. 9

6 Id. (quoting J.A. Jones Constr. Co. v. City of Dover, 372 A.2d 540, 553 (Del. Super. 1977)) (internal quotation marks omitted).

7 Id.; see also Hallman v. Dover Downs, Inc., 1986 U.S. Dist. LEXIS 15708, 1986 WL 535, at *4 (D. Del. Dec. 31, 1986) (collecting cases).

8 Slowe, 2008 Del. Super. LEXIS 377, 2008 WL 5115035, at *3.

9 Id.

5. The Court similarly found that Slowe did not expressly assume the risk of PCCC’s negligence by signing the liability waiver because the waiver did not “clearly, explicitly and comprehensibly notify Slowe that he was assuming the risk that PCCC would negligently fail to maintain and inspect the premises.” 10 The Slowe Court left open the possibility, however, that “a properly-worded release might effect a waiver of premises liability.” 11

10 2008 Del. Super. LEXIS 377, [WL] at *5.

11 Id. The Slowe Court cited to Benedek v. PLC Santa Monica LLC, 104 Cal. App. 4th 1351, 129 Cal.Rptr. 2d 197 (Cal. Ct. App. 2002), which held that the defendant health club’s release barred plaintiff’s claim for negligence and premises liability arising out of injuries he sustained when he tried to catch a falling television set. The [*9] Benedek court reasoned, “[t]he release Benedek signed was clear, unambiguous, and explicit. It released [the health club] from liability for any personal injuries suffered while on [the health club’s] premises, ‘whether using exercise equipment or not.'” The court further noted that given the unambiguous broad language of the release, it “reached all personal injuries suffered by Benedek on [the health club’s] premises, including the injury Benedek suffered because of the falling television” and rejected as “not semantically reasonable” plaintiff’s argument that the release applied or should be interpreted to apply only to injuries suffered while actively using exercise equipment. 129 Cal.Rptr.2d at 204.

6. Here, Hong signed a comprehensive waiver of liability and release in connection with her Membership Agreement that expressly stated that she (and all others on her membership) assumed the risk of “any injury or damage incurred while engaging in any physical exercise or activity or use of any club facility on the premises,” including the use of “any equipment in the facility” and participation “in any activity, class, program, instruction, or any event sponsored by HAC.” Plaintiff’s [*10] suggestion that “the aforementioned activities” specified in the second paragraph of the liability waiver applies only to activities sponsored by HAC, such as a group exercise class, is an implausible reading of the contract. Accordingly, the Court finds that the Membership Agreement and the included liability waiver and release bar Plaintiff’s claims against HAC.

7. Alternatively, notwithstanding the liability waiver, summary judgment should still be granted based on Plaintiff’s failure to make a prima facie case of negligence against Defendants. 12 The Complaint contains no specific allegations about the nature of HAC’s negligence and how it caused Jaden’s injury. Rather, the Complaint asserts, in vague and conclusory fashion, that Defendants negligently

(a) failed to take reasonable measures to make premises safe for invitees;

(b) failed to properly and reasonably inspect the premises;

(c) failed to take reasonable measures to make their premises safe;

(d) failed to supervise the plaintiff and other invitees on the property to make sure the invitees were safe at all relevant times herein; and

(e) were otherwise negligent. 13

In the absence of specific, particularized allegations about [*11] the nature of HAC’s negligence and how it caused Jaden’s injuries, the Complaint must fail.

12 To the extent that Plaintiff believes that she is entitled to discovery to meet her burden, the Court considers the allegations of negligence in the Complaint too vague and generic to allow Plaintiff to conduct what would essentially be a fishing expedition to discover evidence of Defendants’ unspecified negligence. See supra note 1. Summary judgment is therefore appropriate even at this early stage of the litigation.

13 Compl. at ¶9.

8. The Delaware Supreme Court recently upheld this Court’s grant of summary judgment in favor of a car dealership where a would-be customer walked into a plate-glass window at the dealership, noting that while owners and occupiers of commercial property have a duty to maintain their premises in a reasonably safe condition for their customers, patrons also have an affirmative obligation to exercise reasonable care while on the business owner’s premises. 14 [HN8] In a personal injury action, the plaintiff-customer bears the burden of proving that: (i) there was an unsafe condition on the defendant’s premises; (ii) the unsafe condition caused the plaintiff’s injuries; and [*12] (iii) the defendant had notice of the unsafe condition or should have discovered it by reasonable inspection. 15

14 Talmo v. Union Park Automotive, 38 A.3d 1255, 2012 WL 730332, at *3 (Del. Mar. 7, 2012) (TABLE); see also DiOssi v. Maroney, 548 A.2d 1361, 1366-7 (Del. 1988); Howard v. Food Fair Stores, New Castle, Inc., 57 Del. 471, 201 A.2d 638, 640, 7 Storey 471 (Del. 1964); Walker v. Shoprite Supermarket, Inc., 864 A.2d 929 (Del. 2004) (holding that it is negligent for a patron not to see what is plainly visible when there is nothing obscuring the patron’s view).

15 Talmo, 38 A.3d 1255, 2012 WL 730332, at *3.

9. Plaintiff here has failed to make any allegations that even raise a clear issue of fact with regard to Defendants’ negligence. Unlike in Slowe, Plaintiff has not alleged the existence of any dangerous condition on the premises that was the result of the health club’s failure to perform its duties, which were statutory and could not have been disclaimed by liability waiver in any event. 16 Here, Plaintiff has made no allegation that the playground equipment was defective, that the premises otherwise suffered from a latent defect that HAC should have known about and either repaired or warned its invitees [*13] to avoid, or that HAC failed to fulfill a duty to supervise Jaden. Rather, this appears to be a typical incident of a child who was injured on a playground. Such incidents, while unfortunate, do not indicate negligence on the part of the premises-owner any more than does the case of the man who walked into a plate-glass window at a car dealership. Accordingly, based upon Plaintiff’s failure to make a prima facie case of negligence under a theory of premises liability, summary judgment should be granted in favor of Defendants.

16 Slowe, 2008 Del. Super. LEXIS 377, 2008 WL 5115035, at *5-*6.

10. For all of the reasons set forth above, Defendants’ motion for summary judgment is GRANTED.

IT IS SO ORDERED.

/s/ Peggy L. Ableman

Peggy L. Ableman, Judge

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Paranoia can only get you so far, and then you get into the absurd.

Is this sign designed to keep kids safe or protect someone from litigation?

clip_image002

If you can’t read this, here are the rules that are posted on this sign.

Rules of the Playground

Follow the Rules – Play Carefully

Do not use equipment when wet

No running, Pushing or shoving

Do not use play equipment improperly

No bare feet, wear proper footwear

Do not use equipment in this playground without adult supervision

Do not use equipment unless designed for your age group

Climbing

Do not climb down unless area is clear. Watch Carefully to Avoid other climbers

Do not climb without using both hands. Use correct grip, fingers and thumbs for holding

Do not push, shove or crowd. Wait your turn

Slides

Do not climb up sliding surface

Do not slide down improperly. Slide sitting up, feet first one at a time

No pushing or shoving. Wait your turn. Wait until the slide is empty before sliding down

Whirls

Do not jump off or on a moving whirl. Hold on with both hands to handrail

Do not lean back over edge. Hold on to handrails with both hands

Do not stand close to a moving whirl. Keep a clear distance.

First of all, lets looks look at the individual rules.

Do not use play equipment improperly.  What is improperly? What is improperly to a five-year-old?

No bare feet, wear proper footwear. No bare feet is easy. However, what is proper footwear? Wingtips, are Nike’s ok or do they have to be a specific brand?

Do not use equipment unless designed for your age group. What is my age group? Is the age group listed on the equipment? There is none listed on the sign.

Use correct grip, fingers and thumbs for holding. What is the correct grip? Am I allowed to wedge my hand into a crack? Should I be taped up before climbing? What if I don’t have some fingers or a thumb?

So some of these rules are absurd, even for adults. If an adult cannot understand the rules, how is a kid?

Rules as a hole?

Slides appeal to kids of all age groups. So unless you have reached the second or third grade (age 7-8?) you can’t read. You are walking along the street, see a playground and go running to the slide. Do you stop and stare at something you can’t understand?

Do you stare at something built at a height way above your head? Do you even slow down as you pass the sign? Do you really think that this is going to prevent a kid from getting hurt?

Seriously

Maybe a sign like this has some legal value, but I would think that anyone would blow that issue out of the water. How can you expect someone who cannot read to obey the rules.

If you really want to stop injuries, you better design your playground so that on one can get hurt. Or better, you figure that kids are going to figure a way to get hurt, no matter how low to the ground and how padded.

What do you think? Leave a comment.

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By Recreation Law    Rec-law@recreation-law.com      James H. Moss         #Authorrank

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Delaware decision upholds a release signed by a parent against a minor’s claims

Hong v. Hockessin Athletic Club, 2012 Del. Super. LEXIS 340

One more state recognizes the need to allow people to decide to waive a claim to allow their children to participate.

In this case, the mother of the injured child filed a claim after the child was hurt on playground equipment at a health club. The child was three years old when he fell and broke his arm.

The release was contained in the Membership Application and Agreement. Both parents signed the agreement and listed their three children on the agreement as members of the club.

The plaintiffs sued for negligence, which was not clearly defined in the case or as set forth by the court in the complaint.

Summary of the case

Delaware requires that the language in a release be crystal clear and unequivocal. The parties to the release must contemplate a release when they make the agreement. The crystal clear and unequivocal language is met if the contract provisions include language “specifically referring to the negligence of the protected party.” The court in reviewing the release stated:

Here, Hong signed a comprehensive waiver of liability and release in connection with her Membership Agreement that expressly stated that she (and all others on her membership) assumed the risk of “any injury or damage incurred while engaging in any physical exercise or activity or use of any club facility on the premises,” including the use of “any equipment in the facility” and participation “in any activity, class, program, instruction, or any event sponsored by HAC.”

HAC is the acronym for the defendant health club, Hockessin Athletic Club.

The plaintiff argued that the release only applied to activities “sponsored” by HAC such as classes, not just injuries from being there.

The court then looked at the complaint on its whole and found the complaint failed to allege any claim of negligence with specificity. Consequently, the court found the complaint also was to be dismissed because the complaint failed to state a claim.

So Now What?

Maybe this will place Delaware in the category of a state where a parent can sign away a minor’s right to sue. However, this is a decision of the trial court, and this case can still be appealed to the Delaware Supreme Court. If this case is not appealed, it may be the start.

So for the time being, you cannot rely on this case, and you probably can only rely on it if it is not appealed for the County of New Castle Delaware.

This case also points out the importance of making sure your release is written correctly. Here the court stated that a release must include the word negligence of the defendant or person to be protected.

What do you think? Leave a comment.

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