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When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.

In this case, the national organization was also sued for failing to instruct and enforce the regional organization in the rules, regulations, standards or policies. If you are going to make rules, and you say the rules must be followed you have to make sure you train in the rules and that everyone follows the rules.

If you make a rule you have to enforce it if you are in charge of making rules.
Otherwise, don’t make rules!

T.K., a minor, v. Boys & Girls Clubs of America, et. al. 2017 U.S. Dist. LEXIS 87005 

State: Illinois, United States District Court for the Central District of Illinois, Springfield Division

Plaintiff: T.K., a minor, by and through his natural Father and Next Friend, Timothy Killings, and Timothy Killings, individually

Defendant: Boys & Girls Clubs of America, Boys and Girls Club of Decatur, Inc., and Mary K. Paulin

Plaintiff Claims: negligence and willful and wanton misconduct

Defendant Defenses: Failure to state a claim upon which relief can be granted filed in a Motion to dismiss

Holding: for the plaintiff

Year: 2017

This case is a federal diversity case. That means the plaintiff(s) and the defendant(s) were legally residents of different states, and the amount claimed by the plaintiff was greater than $75,000.00. In this case, the plaintiff was from California, and the Defendant was located in Illinois.

The plaintiff was in Illinois and attending the Decatur Boys & Girls Club, which was part of the America Boys & Girls Club. America Boys & Girls Club was based in Georgia.

America Boys & Girls Club provided policies, procedures, rules, guidelines and instructions to the Decatur Boys & Girls Clubs, and all other Boys & Girls Clubs. The Boys & Girls Clubs are required to follow the operating policies, procedures, rules, guidelines, and instructions.

While attending the club, the plaintiff was taken to a local farm. Neither of the defendants had permission to transport the minor plaintiff to the farm. While there the plaintiff was riding on a trailer (probably a hay ride)that did not have guardrails, seats, seatbelts or other equipment designed from keeping people from falling off. (But then very few hay rides do.) The tractor and trailer were pulled onto a public highway with 15-20 children on it. While on the highway the plaintiff either jumped or fell off or might have been pushed
off sustaining injuries.

The farm trailer was not designed or intended to transport people, and the trailer lacked guardrails, seats, seatbelts, and other equipment that might prevent people from falling off it. Defendant Paulin pulled the trailer, with T.K. and 15 to 20 additional children riding on it, onto a public highway with a tractor defendant.

The issue that the trailer was not designed to be on a highway and did not have seats, seatbelts or other equipment to keep people from falling off was repeatedly brought up by the court.

The defendants filed a motion to dismiss, and this opinion is court’s response to that motion.

Analysis: making sense of the law based on these facts.

A motion to dismiss is a preliminary motion filed when the allegations in the complaint do not meet the minimum requirements to make a legally recognizable claim.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Plausibility means alleging factual content that allows a court to reasonably infer that the defendant is liable for the alleged misconduct. A plaintiff’s complaint must suggest a right to relief, “raising that possibility above a speculative level.” “The required level of factual specificity rises with the complexity of the claim.”

When reviewing a motion to dismiss the court must look at the plaintiff’s pleadings as true and any inference that must be drawn from the pleadings is done so in favor of the plaintiff.

To plead negligence under Illinois’s law the plaintiff must prove “…that the defendant owed plaintiff a duty, it breached that duty, and the breach proximately caused plaintiff’s injury.” In Illinois, every person owes all other persons “a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act.”

Whether this duty arises in a particular context depends on “the reasonable foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on defendants.” Id. A child’s caretaker has a duty to protect the child from harm.

It is a legal question to be decided by the court if a legal duty exists.

…the relationship between him and America Boys & Girls Club and Decatur Boys & Girls Club imposed on the two  organizations a duty of care to adequately supervise him and protect him from harm, any unreasonable risk of harm, dangerous instrumentalities, and dangerous conditions.

The plaintiffs argued the duty of care of the two organizations was breached by:

(1) negligently supervising him, (2) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him, (3) failing to warn or failing to adequately warn him of the potential for injury before putting him on the trailer, (4) failing to properly supervise the minors they placed on the trailer, and (5) failing to provide enough staff members to monitor the children they placed on the trailer.

The plaintiff’s also argued there was a greater responsibility and as such duty on the part of the America Boys & Girls Club to train the Decatur club on its rules, regulations and policies and failing to train on them was  also negligent.

T.K. further alleges that it failed to properly train Decatur Boys & Girls Club on the operating policies, procedures, rules, guidelines, and instructions of America Boys & Girls Club, and that it failed to supervise Decatur Boys & Girls Club to ensure that the operating policies, procedures, rules, guidelines, and instructions were followed.

In this case, the duty of care was created by the rules, regulations, policies and procedures created by the America Boys & Girls Clubs upon the Decatur Boys & Girls Club.

The plaintiff went on to argue, and since it was quoted by the court, accepted by the court that:

Defendant Paulin put him on the farm trailer even though Defendant Paulin did not have the requisite permission to  give him a ride on the trailer. Defendant Paulin towed the trailer, while T.K. and 15 to 20 additional children were on board, with a tractor onto a public highway. According to T.K., Defendant Paulin owed him a duty of care to protect him from any unreasonable risk of harm and breached that duty by (1) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him; (2)
failing to warn him of the potential for injury before putting him on the trailer and pulling the trailer onto a public highway; (3) failing to warn him that the trailer was dangerous and not reasonably safe given that the trailer had no railings, barriers, walls, or seats; and (4) creating a dangerous condition by placing him on the trailer and pulling it onto a public highway.

The court held this was enough to create a duty of care and proved a possible negligence claim.

Furthermore, of note was a statement that a statutory violation of a statute in Illinois does not create a negligence per se claim.

A violation of a statute or ordinance designed to protect human life or property is prima facie evidence of negligence. . . . The violation does not constitute negligence per se, however, and therefore the defendant may prevail by showing that he acted reasonably under the circumstances.”

The court then looked at the minor plaintiff’s father claims to see if those met the requirements to prove negligence in Illinois.

To state a negligence cause of action, Mr. Killings must plead enough facts to make it plausible that he was harmed as a proximate result of Defendants’ breach of a duty they owed to him.

However, the father was not able to prove his claim because it is separate and distinct from the minor’s claim. “The fact that Defendants were responsible for T.K.’s well-being on July 17, 2015, does not mean that Defendants had any duty to Mr. Killings.”

It was T.K., not Mr. Killings, who was placed on an unsafe farm trailer and pulled onto a public road. Defendants, therefore, had a duty to exercise ordinary care to prevent injury to T.K., not Mr. Killings. Further, Mr. Killings does not claim that he was physically injured as a result of Defendants’ negligence; his only claimed injury is the money he has spent and the money he will spend in the future for T.K.’s past and future medical treatment. In short, Mr. Killings has not met the pleading requirements for a negligence claim against any Defendant.

The father also pleaded a claim for loss of aid, comfort, society and companionship of his child. However, Illinois’s law does not allow for recovery of those emotional damages unless the child’s injury is a fatality.

The claim is not one for damages stemming from the child’s physical injury, but one founded on the parents’ liability for the minor’s medical expenses under the Illinois Family Expense Act.

However, the father did have a claim for the medical expenses the father paid on behalf of his minor son for the injuries he incurred.

The plaintiff also pleaded res ipsa loquitur.

Res ipsa loquitur allows “proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant.” The doctrine “is meant to bridge an evidentiary gap when an injury could not have happened but for the defendant’s negligence.” Accordingly, res ipsa lo-quitur applies only when the facts “admit of the single inference that the accident would not have happened unless the defendant had been negligent.”

Res ipsa loquitur is a claim that when an incident has occurred, the control of the instrumentality was solely within the control of the defendant.

Under Illinois law, a plaintiff bringing a negligence claim based on the doctrine of res ipsa loquitur must plead that he was injured “in an occurrence that ordinarily does not happen in the absence of negligence” and that it was caused “by an agency or instrumentality within the defendant’s exclusive control.

An example of res ipsa loquitur is a passenger in an airplane that crashes. The pilot is the defendant, and the
control of the airplane is solely with the pilot.

Indeed, the doctrine of res ipsa loquitur can be appropriate if the instrument that caused the injury was in the defendant’s exclusive control “at a time prior to the injury and there is no change in conditions or intervening act that could reasonably have caused the event resulting in the injury.

However, the allegations of the plaintiff did not meet the requirements of res ipsa loquitur in Illinois.

Plaintiff’s final allegation discussed in the opinion was one for willful and wanton misconduct on the part of the defendants. Under Illinois’s law to establish a claim for willful and wanton conduct, the plaintiff must.

…plead facts establishing the elements of a negligence claim–duty, breach, proximate causation, and harm–and “either a deliberate intention to harm or an utter indifference to or conscious disregard for the welfare of the plaintiff.

Generally, this is the same standard to prove willful and wanton conduct in most states. Once the negligence claim is proved, then the allegations only need to support the additional acts as willful and wanton.

Therefore, to state claims for willful and wanton misconduct against Defendants, T.K. need only additionally allege either intentional or reckless willful and wanton misconduct committed by Defendants.

The court defined willful and wanton conduct.

Reckless willful and wanton misconduct is conduct committed with an utter indifference of or a conscious disregard for the safety of others. To meet this standard, the defendant “must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury.

With the allegations plead, the court found sufficient information to confirm the plaintiff going forward with willful and wanton claims. Those allegations include:

Decatur Boys & Girls Club and America Boys & Girls Club placed him and 15 to 20 other minors on an unsafe farm trailer with no guardrails, sidewalls, barriers, or seats while providing inadequate supervision. T.K. further alleges that the trailer was not designed to transport people.

Putting kids on a trailer was a major issue for the court. Kids on a highway on a vehicle not created to transport people were enough to create willful and wanton conduct.

The defendant argued that the allegations that created the negligence claim were also allowed to be the same facts. No new allegations needed to be plead to support the claims for willful and wanton conduct.

Under Illinois’s law, “[t]he same acts by a defendant, if sufficiently egregious, can constitute both negligence and willful and wanton conduct.” Therefore, “one can plead the same facts in two counts, one characterizing them as negligence and the other as willful and wanton conduct, if the same facts could support both theories.

The plaintiff had pled enough facts that the court found relevant and substantial to continue with the negligence and willful and wanton claim.

So Now What?

The actual rules, regulations, procedures were not identified by the court in making its decision. However, the continuous restatement of the plaintiff’s allegations in the same order and words. However, the court specifically stated the defendants failed to follow their own rules.

If you have rules, regulations, policies, procedures, or you must abide by such you MUST follow them. There are no loop holes, exceptions or “just this one time” when dealing with rules, policies and procedures that affect safety or affect minors. If you make them, you must follow them.

If you make them, you must make sure everyone is trained on them. One of the big issues the plaintiff pleads and the court accepted was the rules made by the parent organization were not known or followed by the subsidiary organization. The parent organization when making rules is under a requirement to make sure
the rules are understood and followed according to this decision in Tennessee.

The other major issue was transporting the plaintiff away from the location where the parents thought the plaintiff would be without their permission and then transporting the plaintiff on a road without meeting the requirements of state law, seats, seat belts, etc.

When you have minors, especially minors under the age of ten, you are only acting within the realm and space permitted by the parents. The line that makes me cringe every time I hear it on the news is “If I would have known they were going to do ______________, I never would have let me kid go.” Listen and you
will realize you will hear it a lot when a minor is injured.

You need to prepare your program and your parents so that line is never spoken about you.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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T.K., a minor, v. Boys & Girls Clubs of America, et. al. 2017 U.S. Dist. LEXIS 87005

T.K., a minor, v. Boys & Girls Clubs of America, et. al. 2017 U.S. Dist. LEXIS 87005

T.K., a minor, by and through his natural Father and Next Friend, Timothy Killings, and Timothy Killings, individually, Plaintiffs, v. Boys & Girls Clubs of America, Boys and Girls Club of Decatur, Inc., and Mary K. Paulin, Defendants.

Case No. 16-cv-03056

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION

2017 U.S. Dist. LEXIS 87005

June 6, 2017, Decided

June 7, 2017, E-Filed

CORE TERMS: trailer, willful, farm, wanton misconduct, res ipsa loquitur, negligence claims, pleaded, cognizable, exclusive control, wanton, medical expenses, supervision, pulled, negligence per se, public road, legal conclusions, pulling, seat, factual allegations, right to relief, conscious disregard, indifference, speculative, supervise, reckless, notice, owed, public highway, guidelines, transport

COUNSEL: [*1] For T.K., a Minor, By And Through His Natural Father and Next Friend, Timothy Killings, Timothy Killings, Plaintiffs: Christopher Ryan Dixon, THE DIXON INJURY FIRM, St Louis, MO.

For Boys & Girls Club of America, Boys and Girls Club of Decatur, Inc., Defendants: Randall A Mead, LEAD ATTORNEY, DRAKE NARUP & MEAD PC, Springfield, IL.

For Mary K Paulin, Defendant: Daniel R Price, LEAD ATTORNEY, WHAM & WHAM, Centralia, IL.

JUDGES: SUE E. MYERSCOUGH, UNITED STATES DISTRICT JUDGE.

OPINION BY: SUE E. MYERSCOUGH

OPINION

SUE E. MYERSCOUGH, U.S. District Judge:

Before the Court are Defendants Boys & Girls Clubs of America and Boys & Girls Club of Decatur, Inc.’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count I of the Second Amended Complaint (d/e 32) and Defendant Mary K. Paulin’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count IV of the Second Amended Complaint (d/e 33). The motion filed by Defendants Boys and Girls Club of Decatur, Inc. (Decatur Boys & Girls Club) and Boys & Girls Clubs of America (America Boys & Girls Club) is GRANTED IN PART and DENIED IN PART. Defendant Paulin’s motion is DENIED. In the Second Amended Complaint, T.K., a [*2] minor, through his father, Timothy Killings, sufficiently pleads negligence and willful and wanton misconduct causes of action against all Defendants. In addition, Mr. Killings pleads cognizable claims for T.K.’s past and future medical expenses against all Defendants. However, the allegations of the Second Amended Complaint are not sufficient to render the doctrine of res ipsa loquitur applicable against Decatur Boys & Girls Club or America Boys & Girls Club.

I. BACKGROUND

The following facts come from Plaintiffs’ Second Amended Complaint. The Court accepts them as true at the motion to dismiss stage. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

On July 17, 2015, T.K., a then-eight-year-old resident of California, was a member of Decatur Boys & Girls Club, a corporate citizen of Illinois and a licensed child-care facility. On that same date, Decatur Boys & Girls Club was operating a summer camp through its agents and employees, and T.K. was under the paid care and supervision of Decatur Boys & Girls Club and America Boys & Girls Club. America Boys & Girls Club, a corporate citizen of Georgia, provides operating policies, procedures, rules, guidelines, and instructions regarding how Decatur Boys & Girls Club is to operate. Decatur [*3] Boys & Girls Club is required to follow these operating policies, procedures, rules, guidelines, and instructions.

On July 17, 2015, T.K. was taken from the premises of Decatur Boys & Girls Club in Decatur, Illinois, to property in Clinton, Illinois, owned by Defendant Paulin, an Illinois citizen. Neither Decatur Boys & Girls Club nor America Boys & Girls Club had permission to transport T.K. from Decatur to Defendant Paulin’s property in Clinton. Defendants,1 again without permission, put T.K. on a farm trailer owned by Defendant Paulin and located on Defendant Paulin’s property. The farm trailer was not designed or intended to transport people, and the trailer lacked guardrails, seats, seatbelts, and other equipment that might prevent people from falling off it. Defendant Paulin pulled the trailer, with T.K. and 15 to 20 additional children riding on it, onto a public highway with a tractor Defendant Paulin owned. The trailer was not being used in connection with a parade or a farm-related activity.

1 The use of “Defendants” in this Opinion will refer collectively to Decatur Boys & Girls Club, America Boys & Girls Club, and Mary K. Paulin.

While riding on the trailer, T.K. fell or jumped off the trailer or was pushed off. As a result, T.K. sustained injuries to his head, face, eyes, chest, neck, back, arms, lungs, hands, legs, [*4] and feet. T.K. underwent medical treatment for his injuries and will have to undergo additional treatment in the future. T.K’s father, Timothy Killings, a citizen of California, has incurred expenses related to his son’s medical care and will incur additional expenses in the future for his son’s future medical care.

On March 3, 2016, Plaintiffs filed their Complaint (d/e 1) against Defendants. Plaintiffs subsequently filed their First Amended Complaint (d/e 26) on May 23, 2016, and their Second Amended Complaint (d/e 31) on June 17, 2016. The Second Amended Complaint contains five counts. Counts 1 through 3 allege claims against Decatur Boys & Girls Club and America Boys & Girls Club for, respectively, negligence, negligence based on the doctrine of res ipsa loquitur, and willful and wanton misconduct. Counts 4 and 5 allege negligence and willful and wanton misconduct claims, respectively, against Defendant Paulin.

On June 27, 2016, Decatur Boys & Girls Club and America Boys & Girls Club filed their Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count I of the Second Amended Complaint, asking the Court to dismiss Counts 1 through 3 for failing to [*5] state cognizable claims or, in the alternative, to strike certain paragraphs of the Second Amended Complaint. On June 30, 2017, Defendant Paulin filed her Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count IV of the Second Amended Complaint, asking the Court to dismiss Counts 4 and 5 for failing to state cognizable claims or, in the alternative, to strike certain paragraphs of the Second Amended Complaint.

II. JURISDICTION

This Court has original jurisdiction over Plaintiffs’ claims because no Plaintiff is a citizen of the same state as any Defendant and Plaintiffs are seeking damages in excess of $75,000. See 28 U.S.C. § 1332(a)(1); McMillian v. Sheraton Chi. Hotel & Towers, 567 F.3d 839, 844 (7th Cir. 2009) (“When the jurisdictional threshold is uncontested, we generally will accept the plaintiff’s good faith allegation of the amount in controversy unless it appear[s] to a legal certainty that the claim is really for less than the jurisdictional amount.”) (internal quotation marks omitted).

III. LEGAL STANDARD

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). Plausibility means alleging factual content that allows a court to reasonably infer [*6] that the defendant is liable for the alleged misconduct. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A plaintiff’s complaint must suggest a right to relief, “raising that possibility above a speculative level.” Kubiak v. City of Chicago, 810 F.3d 476, 480 (7th Cir. 2016). “The required level of factual specificity rises with the complexity of the claim.” McCauley v. City of Chicago, 671 F.3d 611, 616-17 (7th Cir. 2011).

When faced with a Rule 12(b)(6) motion to dismiss, the Court “accept[s] as true all of the well-pleaded facts in the complaint and draw[s] all reasonable inferences in favor of the plaintiff.” Roberts v. City of Chicago, 817 F.3d 561, 564 (7th Cir. 2016). “[L]egal conclusions and conclusory allegations merely reciting the elements of the claim are not entitled to this presumption of truth.” McCauley, 671 F.3d at 616. Further, the Court is “not obliged to ignore any facts set forth in the complaint that undermine the plaintiff’s claim.” R.J.R. Servs., Inc. v. Aetna Cas. & Sur. Co., 895 F.2d 279, 281 (7th Cir. 1989). The Court may “strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. Pro. 12(f).

IV. ANALYSIS

A. Count I and Count IV Sufficiently Plead Negligence and Medical Expense Claims Against All Defendants.

1. T.K. has pleaded cognizable negligence claims against all Defendants.

In a case where federal jurisdiction is based on diversity of citizenship under 28 U.S.C. § 1332, “[s]tate substantive law applies, but federal procedural rules govern.” Doermer v. Callen, 847 F.3d 522, 529 (7th Cir. 2017). “To state a claim for negligence under Illinois law, a plaintiff must plead [*7] that the defendant owed plaintiff a duty, it breached that duty, and the breach proximately caused plaintiff’s injury.” Allstate Indem. Co. v. ADT LLC, 110 F. Supp. 3d 856, 862-63 (N.D. Ill. 2015) (citing Simpkins v. CSX Transp., Inc., 2012 IL 110662, 965 N.E.2d 1092, 1097, 358 Ill. Dec. 613 (Ill. 2012). In Illinois, “every person owes to all other persons a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act.” Jane Doe-3 v. McLean Cnty. Unit Dist. No. 5 Bd. of Dirs., 2012 IL 112479, 973 N.E.2d 880, 890, 362 Ill. Dec. 484 (Ill. 2012). Whether this duty arises in a particular context depends on “the reasonable foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on defendants.” Id. A child’s caretaker has a duty to protect the child from harm. Ryan v. Yarbrough, 355 Ill. App. 3d 342, 823 N.E.2d 259, 262, 291 Ill. Dec. 249 (Ill. App. Ct. 2005). Whether a duty exists is a question of law to be decided by the Court. Simpkins, 965 N.E.2d at 1096.

In support of his negligence claims against America Boys & Girls Club and Decatur Boys & Girls Club, T.K.2 alleges that he was a member of Decatur Boys & Girls Club and was entrusted to the care of both organizations on July 17, 2015. Sec. Am. Complaint, ¶¶ 15-16. America Boys & Girls Club and Decatur Boys & Girls Club agreed to accept the “care, custody, and control” of T.K. for the purpose of providing child care. Id. ¶ 16. T.K. also alleges [*8] that on July 17, 2015, the relationship between him and America Boys & Girls Club and Decatur Boys & Girls Club imposed on the two organizations a duty of care to adequately supervise him and protect him from harm, any unreasonable risk of harm, dangerous instrumentalities, and dangerous conditions. Id. ¶¶ 42-43.

2 Plaintiffs do not separate T.K’s claims from Mr. Killings’ claims in the Second Amended Complaint. To avoid confusion, the Court will address the allegations of the Second Amended Complaint as those of T.K. when analyzing T.K’s claims and as those of Mr. Killings when analyzing Mr. Killings’ claims.

Further, according to T.K., America Boys & Girls Club and Decatur Boys & Girls Club breached the duty of care they owed him in several ways, including by (1) negligently supervising him, (2) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him, (3) failing to warn or failing to adequately warn him of the potential for injury before putting him on the trailer, (4) failing to properly supervise the minors they placed on the trailer, and (5) failing to provide enough staff members to monitor the children they placed on the trailer. Id. ¶ 45. With respect to America Boys & Girls Club, T.K. further alleges that it failed to properly train Decatur Boys & Girls Club on the operating policies, procedures, rules, guidelines, and instructions of America Boys & Girls Club and [*9] that it failed to supervise Decatur Boys & Girls Club to ensure that the operating policies, procedures, rules, guidelines, and instructions were followed. Id. ¶¶ 46-47. In addition, T.K. claims that the actions of America Boys & Girls Club and Decatur Boys & Girls Club proximately caused his injuries. Id. ¶¶ 33-39, 49.

In support of his negligence claim against Defendant Paulin, T.K. alleges that on July 17, 2015, Defendant Paulin put him on the farm trailer even though Defendant Paulin did not have the requisite permission to give him a ride on the trailer. Sec. Am. Complaint, ¶¶ 21, 23. Defendant Paulin towed the trailer, while T.K. and 15 to 20 additional children were on board, with a tractor onto a public highway. Id. ¶¶ 28-29. According to T.K., Defendant Paulin owed him a duty of care to protect him from any unreasonable risk of harm and breached that duty by (1) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him; (2) failing to warn him of the potential for injury before putting him on the trailer and pulling the trailer onto a public highway; (3) failing to warn [*10] him that the trailer was dangerous and not reasonably safe given that the trailer had no railings, barriers, walls, or seats; and (4) creating a dangerous condition by placing him on the trailer and pulling it onto a public highway. Id. ¶¶ 72-73. In addition, T.K. alleges that the actions of Defendant Paulin proximately caused his injuries. Id. ¶¶ 33-39, 75.

Based on these allegations, T.K. has sufficiently pleaded negligence claims against Decatur Boys & Girls Club, America Boys & Girls Club, and Defendant Paulin. The allegations in Count I and Count IV of the Second Amended Complaint give Defendants notice of the basis for T.K.’s negligence claims against them and are sufficient to establish that T.K. has a plausible, as opposed to speculative, right to relief against Defendants. This is all that is required of a plaintiff under the federal notice pleading regime. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 547.

Defendants do not seem to dispute such a finding. Indeed, their arguments for the dismissal of Count I and Count IV focus on the allegations in the Second Amended Complaint relating to an alleged violation of 625 Ill. Comp. Stat. 5/11-1408, a provision of the Illinois Vehicle Code, and claims that their alleged statutory violations constitute [*11] negligence per se. See Mot. to Dismiss (d/e 32), at 1-2; Memorandum of Law (d/e 21), at 4-6; Mot. to Dismiss (d/e 33), at 1-2; Memorandum of Law (d/e 34), at 1-2. Defendants are correct that Illinois does not recognize statutory violations as negligence per se. See Kalata v. Anheuser-Busch Companies, Inc., 144 Ill. 2d 425, 581 N.E.2d 656, 661, 163 Ill. Dec. 502 (Ill. 1991) (“A violation of a statute or ordinance designed to protect human life or property is prima facie evidence of negligence. . . . The violation does not constitute negligence per se, however, and therefore the defendant may prevail by showing that he acted reasonably under the circumstances.”). But the inclusion of allegations regarding violations of 625 Ill. Comp. Stat. 5/11-1408 and negligence per se do not require the dismissal of Count I or Count IV. As the Court has explained above, T.K. has sufficiently pleaded negligence claims against Defendants without the allegations relating to statutory violations. Cf. Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992) (“[T]he complaint need not identify a legal theory, and specifying an incorrect theory is not fatal.”).

2. Timothy Killings has pleaded cognizable medical expense claims against all Defendants.

Just because T.K. has cognizable negligence claims against Defendants does not mean that Timothy Killings, T.K.’s father, also has such claims. To state a [*12] negligence cause of action, Mr. Killings must plead enough facts to make it plausible that he was harmed as a proximate result of Defendants’ breach of a duty they owed to him. Allstate, 110 F. Supp. 3d at 862-63. Mr. Killings has failed to meet his burden. The fact that Defendants were responsible for T.K.’s well-being on July 17, 2015, does not mean that Defendants had any duty to Mr. Killings. See Bruntjen v. Bethalto Pizza, LLC, 2014 IL App (5th) 120245, 385 Ill. Dec. 215, 18 N.E.3d 215, 231 (Ill. App. Ct. 2014) (“The criterion in a duty analysis is whether a plaintiff and a defendant stood in such a relationship to each other that the law imposed an obligation upon the defendant to act for the protection of the plaintiff.”). It was T.K., not Mr. Killings, who was placed on an unsafe farm trailer and pulled onto a public road. Defendants therefore had a duty to exercise ordinary care to prevent injury to T.K., not Mr. Killings. Further, Mr. Killings does not claim that he was physically injured as a result of Defendants’ negligence; his only claimed injury is the money he has spent and the money he will spend in the future for T.K.’s past and future medical treatment. See Sec. Am. Complaint, ¶¶ 38-39. In short, Mr. Killings has not met the pleading requirements for a negligence claim against any Defendant.

But just because Mr. [*13] Killings has not pleaded cognizable negligence claims against Defendants does not mean that he has pleaded no cognizable claims against them. In Illinois, parents have a cause of action against a tortfeasor who injures their child and causes them to incur medical expenses. Pirrello v. Maryville Acad., Inc., 2014 IL App (1st) 133964, 386 Ill. Dec. 108, 19 N.E.3d 1261, 1264 (Ill. App. Ct. 2014). The claim is not one for damages stemming from the child’s physical injury, but one founded on the parents’ liability for the minor’s medical expenses under the Illinois Family Expense Act. Id.; see also 750 Ill. Comp. Stat. 65/15(a)(1) (obligating parents to pay for the “expenses of the family”). T.K. has pleaded cognizable negligence claims against Defendants. Mr. Killings alleges that he has been saddled with bills stemming from T.K.’s medical care, some of which he has paid, and that he will incur additional medical bills in the future as a result of the injuries T.K. suffered on account of Defendants’ negligence. Sec. Am. Complaint, ¶¶ 38-39. Mr. Killings is the father of T.K., a minor, and is required by law to pay for T.K.’s medical expenses, Mr. Killings has adequately pleaded claims against Defendants for the recovery of the amounts paid or to be paid for T.K.’s past and future medical expenses stemming from Defendants’ negligence.

One [*14] final point merits a brief discussion. In the Second Amended Complaint, Mr. Killings alleges that he has suffered, as a result of T.K.’s injuries, “loss of aid, comfort, society, companionship, pleasure, and the family relationship.” Sec. Am. Complaint, ¶ 40. However, in Illinois, a parent may not “recover for loss of the society and companionship of a child who is nonfatally injured.” Vitro v. Mihelcic, 209 Ill. 2d 76, 806 N.E.2d 632, 633, 282 Ill. Dec. 335 (Ill. 2004). Therefore, Mr. Killings has no valid claim for loss of society and companionship in this case.

3. The Court strikes paragraph 27 from Plaintiffs’ Second Amended Complaint.

As an alternative to the dismissal of Count I of the Second Amended Complaint, Defendants Decatur Boys & Girls Club and America Boys & Girls Club ask the Court to strike paragraphs 50 through 55 of the Complaint. Mot. to Dismiss (d/e 32), at 2. Similarly, Defendant Paulin asks the Court, as an alternative to the dismissal of Count IV, to strike paragraphs 76 through 81 of the Second Amended Complaint. Mot. to Dismiss (d/e 33), at 1-2. According to Defendants, the Court should strike these paragraphs because they are ultimately used to claim that Defendants’ alleged statutory violations constitute negligence per se.

Additionally, Defendants [*15] Decatur Boys & Girls Club and America Boys & Girls Club request that the Court strike paragraph 27 from the Second Amended Complaint for being duplicative of paragraph 25 and strike paragraphs 42, 43, 44, 48, 68, 69, and 70 because those paragraphs are legal conclusions. Mot. to Dismiss (d/e 32), at 4. But even assuming that the aforementioned paragraphs are legal conclusions, as opposed to factual allegations, that is no reason to strike them from the Second Amended Complaint. Although Plaintiffs are required to plead facts that indicate they have a plausible, as opposed to a speculative, right to relief, see Iqbal, 556 U.S. at 678, they are not prohibited from also pleading legal conclusions that might help to provide Defendants with notice of the claims brought against them or provide context for the factual allegations. See State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001) (citing Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989)) (noting that “legal conclusions are an integral part of the federal notice pleading regime” and that Rule 8(b) of the Federal Rules of Civil Procedure requires parties to respond to all allegations contained within a pleading, including legal conclusions). Therefore, the Court strikes only paragraph 27 of the Second Amended Complaint, as it is duplicative of paragraph 25.

B. The Allegations of Plaintiffs’ Second Amended [*16] Complaint Are Insufficient to Render the Doctrine of Res Ipsa Loquitur Applicable Against Decatur Boys & Girls Club and America Boys & Girls Club.

Res ipsa loquitur is a rule of evidence applicable to a negligence claim, not a distinct theory of recovery. Rice v. Burnley, 230 Ill. App. 3d 987, 596 N.E.2d 105, 108, 172 Ill. Dec. 826 (Ill. App. Ct. 1992). Res ipsa loquitur allows “proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant.” Metz v. Cent. Ill. Elec. & Gas Co., 32 Ill. 2d 446, 207 N.E.2d 305, 307 (Ill. 1965). The doctrine “is meant to bridge an evidentiary gap when an injury could not have happened but for the defendant’s negligence.” Buechel v. United States, 746 F.3d 753, 765 (7th Cir. 2014). Accordingly, res ipsa loquitur applies only when the facts “admit of the single inference that the accident would not have happened unless the defendant had been negligent.” Britton v. Univ. of Chi. Hosps., 382 Ill. App. 3d 1009, 889 N.E.2d 706, 709, 321 Ill. Dec. 441 (Ill. App. Ct. 2008). Whether the doctrine of res ipsa loquitur applies is a question of law to be determined by the Court. Imig v. Beck, 115 Ill. 2d 18, 503 N.E.2d 324, 329, 104 Ill. Dec. 767 (Ill. 1986).

Under Illinois law, a plaintiff bringing a negligence claim based on the doctrine of res ipsa loquitur must plead that he was injured “in an occurrence that ordinarily does not happen in the absence of negligence” and that it was caused “by an agency or instrumentality within the defendant’s exclusive control.” Avalos-Landeros v. United States, 50 F. Supp. 3d 921, 927 (N.D. Ill. 2014) (citing Heastie v. Roberts, 226 Ill. 2d 515, 877 N.E.2d 1064, 1076, 315 Ill. Dec. 735 (Ill. 2007)). Although, in the past, [*17] a plaintiff had to allege that the “the injury occurred under circumstances indicating that it was not due to any voluntary act or neglect on the part of the plaintiff,” this requirement was removed due to the adoption of comparative fault principles in Illinois. Heastie, 877 N.E.2d at 1076. With respect to the requirement of “exclusive control,” a defendant’s control over the instrumentality “at the time of the alleged negligence is not defeated by lack of control at the time of the injury.” Darrough v. Glendale Heights Cmty. Hosp., 234 Ill. App. 3d 1055, 600 N.E.2d 1248, 1252-53, 175 Ill. Dec. 790 (Ill. App. Ct. 1992). Indeed, the doctrine of res ipsa loquitur can be appropriate if the instrument that caused the injury was in the defendant’s exclusive control “at a time prior to the injury and there is no change in conditions or intervening act that could reasonably have caused the event resulting in the injury.” Id. at 1253.

T.K. alleges that “a minor child under the care and supervision of a registered, licensed professional child care facility does not ordinarily sustain serious injuries when properly supervised in the absence of negligence.” Sec. Am. Complaint, ¶ 60. Further, T.K. claims that at the time he sustained his injuries, the farm trailer that injured him was under the exclusive control of Decatur Boys & Girls Club and America Boys [*18] & Girls Club. Id. ¶ 61. These allegations are not sufficient to render the doctrine of res ipsa loquitur applicable here. See Twombly, 550 U.S. at 545 (noting that “a formulaic recitation of a cause of action’s elements” will not withstand a Rule 12(b)(6) motion to dismiss). And although the Second Amended Complaint contains numerous factual allegations regarding the incident in which T.K. was injured, those allegations do not indicate a plausible right to relief for T.K. under the doctrine of res ipsa loquitur.

Because the facts pleaded in Plaintiffs’ Second Amended Complaint provide no support for the second prong in the res ipsa loquitur analysis–whether an injury was caused by an object within the defendant’s exclusive control–the Court’s res ipsa loquitur analysis will begin and end with that prong. Even assuming that the incident in which T.K. was injured was one that does not ordinarily occur in the absence of negligence, T.K.’s account of the circumstances surrounding the accident indicate that it was Defendant Paulin, not Decatur Boys & Girls Club or America Boys & Girls Club, who had exclusive control of the farm trailer. According to the Second Amended Complaint, the farm trailer that injured T.K. was owned [*19] by Defendant Paulin and located on Defendant Paulin’s property. Defendant Paulin was the one who pulled the trailer onto a public road with T.K. and several other minor children on board. Defendant Paulin owned the tractor with which the trailer was pulled. Although T.K. claims that Decatur Boys & Girls Club and America Boys & Girls Club were responsible for placing him on the farm trailer, he makes the same allegation with respect to Defendant Paulin. See Sec. Am. Complaint, ¶¶ 22-23. In short, there is nothing in the Second Amended Complaint to support T.K.’s allegation that Decatur Boys & Girls Club and America Boys & Girls Club were in exclusive control of the farm trailer at any time.

Based on this analysis, the Court has determined that the factual allegations of the Second Amended Complaint are not sufficient to render the doctrine of res ipsa loquitur applicable. In doing so, the Court again notes that res ipsa loquitur is an evidentiary rule, not a distinct theory of recovery. If facts uncovered through the discovery process sufficiently support the application of res ipsa loquitur against any Defendant, the Court will allow T.K. to rely on the doctrine at the summary judgment [*20] stage and will allow the trier of fact to consider and apply the doctrine as to that Defendant.

C. Count III and Count V Sufficiently Plead Willful and Wanton Misconduct Claims Against the Defendants.

To state a claim under Illinois law for willful and wanton misconduct, a plaintiff must plead facts establishing the elements of a negligence claim–duty, breach, proximate causation, and harm–and “either a deliberate intention to harm or an utter indifference to or conscious disregard for the welfare of the plaintiff.” Kirwan v. Lincolnshire-Riverwoods Fire Protections Dist., 349 Ill. App. 3d 150, 811 N.E.2d 1259, 1263, 285 Ill. Dec. 380 (Ill. App. Ct. 2004) (quoting Adkins v. Sarah Bush Lincoln Health Ctr., 129 Ill. 2d 497, 544 N.E.2d 733, 743, 136 Ill. Dec. 47 (Ill. 1989)). As noted above, T.K. has sufficiently pleaded negligence causes of action against all Defendants. T.K. has incorporated the allegations comprising his negligence claims into his willful and wanton misconduct claims against Defendants. Therefore, to state claims for willful and wanton misconduct against Defendants, T.K. need only additionally allege either intentional or reckless willful and wanton misconduct committed by Defendants. Reckless willful and wanton misconduct is conduct committed with an utter indifference of or a conscious disregard for the safety of others. Kirwan, 811 N.E.2d at 1263. To meet this standard, the defendant “must be conscious of his conduct, [*21] and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury.” Id.

In the Second Amended Complaint, T.K. alleges that on July 17, 2015, Decatur Boys & Girls Club and America Boys & Girls Club placed him and 15 to 20 other minors on an unsafe farm trailer with no guardrails, sidewalls, barriers, or seats while providing inadequate supervision. Sec. Am. Complaint, ¶¶ 22, 65. T.K. further alleges that the trailer was not designed to transport people. Id. ¶ 24. T.K claims that Decatur Boys & Girls Club and America Boys & Girls Club failed to take necessary safety precautions and operated their summer camp recklessly or with gross negligence. Id. ¶¶ 64, 68. According to T.K., the actions and inaction of Decatur Boys & Girls Club and America Boys & Girls Club were “willful, wanton, grossly negligent, careless, [and] reckless” and “showed an utter indifference to or conscious disregard for the safety of [T.K.].” Id. ¶ 70.

T.K. also includes several allegations in Count III about what Decatur Boys & Girls Club and America Boys & Girls Club “knew or should have [*22] known.” Specifically, according to T.K., Decatur Boys & Girls Club and America Boys & Girls Club knew or should have known that the farm trailer was unreasonably dangerous, that additional supervision was required for the 15 to 20 children riding on the farm trailer, and that there was no way for the children to be properly seated on the farm trailer. Id. ¶¶ 66-68. Decatur Boys & Girls Club and America Boys & Girls Club also knew or should have known that placing children on the farm trailer and pulling it with a tractor without proper supervision posed a high probability of serious physical harm to T.K. Id. ¶ 69.

With respect to Defendant Paulin, T.K. alleges that Defendant Paulin placed T.K. on a farm trailer that was not designed or intended to transport people and had no guardrails, seats, or seat belts to prevent people from falling off it. Id. ¶¶ 23, 25-26. Further, T.K. claims that Defendant Paulin had no intention of making sure that T.K. was safe when she placed him on the farm trailer and pulled it onto a public road. Id. ¶ 83. T.K. also claims that Defendant Paulin failed to take necessary safety precautions. Id. ¶ 85. Defendant Paulin’s conduct, according to T.K., was “willful, [*23] wanton, grossly negligent, careless, [and] reckless” and showed a “conscious disregard for the safety of [T.K.].” Id. ¶ 87.

As with Decatur Boys & Girls Club and America Boys & Girls Club, T.K. includes allegations in the Second Amended Complaint regarding what Defendant Paulin “knew or should have known.” Specifically, T.K. alleges that Defendant Paulin knew or should have known that the farm trailer was unreasonably dangerous, that pulling children onto a public road while on the trailer was unreasonably dangerous, and that placing children on the farm trailer and pulling the trailer onto a public roadway without proper supervision posed a high probability of serious physical harm or death. Id. ¶¶ 83-84, 86.

T.K.’s allegations are sufficient to plead willful and wanton misconduct claims against Defendants. The Federal Rules of Civil Procedure require that a pleading include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. Pro. 8(a)(2). A plaintiff need not plead enough facts to show that he is likely to prevail on his claim; rather, he is required only to include enough facts to raise his claim from speculative to plausible. See Iqbal, 556 U.S. at 678. The allegations set forth [*24] above are sufficient to make it plausible that Defendants committed willful and wanton misconduct when they put T.K. on an unsafe farm trailer not designed for transporting people, failed to take necessary safety precautions, and either failed to properly supervise T.K. or pulled the trailer, with T.K. on it, onto a public road. See Worthem v. Gillette Co., 774 F. Supp. 514, 517 (N.D. Ill. 1991) (holding that the plaintiff had sufficiently pleaded willful and wanton misconduct claims where she alleged that “willful and wanton acts or omissions [were] committed or omitted with conscious indifference to existing circumstances and conditions” and went on to “enumerate specific instances of willful and wanton conduct”).

Although T.K.’s “knew or should have known” allegations against Defendants may have been insufficient to meet his pleading burden with respect to willful and wanton misconduct claims, see id. (admitting that the court “might agree” with the defendant’s arguments that “knew or should have known” allegations are mere negligence allegations insufficient to merit punitive damages), T.K. does not rely solely on these allegations in his willful and wanton misconduct claims against Defendants. Indeed, as the Court has noted above, Count III [*25] and Count V of the Second Amended Complaint, which incorporate the allegations from the counts preceding them, contain specific factual allegations regarding the actions Defendants took. Further, the Court does not view T.K.’s “knew or should have known” allegations as completely irrelevant to a willful and wanton misconduct claim under Illinois law, which holds that willful and wanton misconduct can be found where there is a failure to discover a danger through carelessness when it could have been discovered through the exercise of ordinary care. Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 641 N.E.2d 402, 406, 204 Ill. Dec. 178 (Ill. 1994).

The fact that T.K. bases his willful and wanton claims on the same facts as his negligence claims is of no concern. Under Illinois law, “[t]he same acts by a defendant, if sufficiently egregious, can constitute both negligence and willful and wanton conduct.” Bastian v. TPI Corp., 663 F. Supp. 474, 476 (N.D. Ill. 1987) (citing Smith v. Seiber, 127 Ill. App. 3d 950, 469 N.E.2d 231, 235, 82 Ill. Dec. 697 (Ill. App. Ct. 1984). Therefore, “one can plead the same facts in two counts, one characterizing them as negligence and the other as willful and wanton conduct, if the same facts could support both theories.” Bastian, 663 F. Supp. at 476 (citing O’Brien v. Twp. High Sch. Dist. 214, 83 Ill. 2d 462, 415 N.E.2d 1015, 1018, 47 Ill. Dec. 702 (Ill. 1980).

V. CONCLUSION

For the foregoing reasons, Defendants Boys & Girls Club of America and Boys & Girls Club of Decatur, Inc.’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion [*26] to Strike Portions of Count I of the Second Amended Complaint (d/e 32) is GRANTED IN PART and DENIED IN PART. Count II of Plaintiffs’ Second Amended Complaint is DISMISSED WITHOUT PREJUDICE. Further, the Court STRIKES paragraph 27 of Plaintiffs’ Second Amended Complaint as duplicative. Defendant Mary K. Paulin’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count IV of the Second Amended Complaint (d/e 33) is DENIED. Pursuant to Rule 12(a)(4)(A) of the Federal Rules of Civil Procedure, Defendants have 14 days from the date they receive a copy of this Order to file an answer to Plaintiffs’ Second Amended Complaint.

ENTER: June 6, 2017.

/s/ Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE


Plaintiff fails to prove a product liability claim because she can’t prove what tube was the result of her injury.

Issues of why the plaintiff was standing up and not getting out of the way on a tubing hill was not discussed in the appellate decision.

Buckel v. Tube Pro Inc., 2016 IL App (1st) 150427-U; 2016 Ill. App. Unpub. LEXIS 638

State: Illinois, Appellate Court of Illinois, First District, Fifth Division

Plaintiff: Susan Buckel

Defendant: Tube Pro Inc.

Plaintiff Claims: Negligence (based on a product liability claim)

Defendant Defenses: No proof the allegedly defective product was theirs

Holding: For the Defendant

Year: 2016

The defendant is a snow tubing operation at a city park in Illinois. The plaintiff was tubing when something sticking out of the bottom of the tube slowed her down and stopped her. While stopped on the hill the plaintiff was struck by another tuber and was injured.

The defendant filed a motion for summary judgment saying the plaintiff could not prove her case because she could not identify what tube, let alone whose tube, (manufactured by whom), was the defective tube. The court granted the defendant’s motion, and the plaintiff appealed.

There was also exculpatory language on the back of the lift ticket the plaintiff purchased. It was raised by the defendant and discussed in one paragraph in the decision, but was not used by the court to reach its conclusion.

Analysis: making sense of the law based on these facts.

The court started its decision by looking at the testimony from the plaintiff used to describe the tube she was riding. Her testimony of the color of the tube did not match the receipts from the tubing hill that showed the tubes that were purchased from the defendant. The tubes purchased from the defendant was also purchased ten years prior to the accident so very few if any of them were still in operation with the tubing hill.

Defendant attached the deposition of plaintiff, who testified that the colors of the tubes at Villa Olivia on the date of her accident were “red, green, and blue.” Defendant also relied on the deposition of plaintiff to establish that the snow tube she used at the time of her accident was red. Plaintiff testified, “I believe it was red.”

Defendant also attached the deposition transcript of William Pawson, who testified that the snow tubes purchased by Villa Olivia from defendant were red and blue. William Pawson testified that he believed “those [were] the only two colors that we sold them.” Defendant also relied on William Pawson’s testimony that Villa Olivia purchased Tough Tube snow tubes that were “a mix of red, blue, maybe some green and plum, I would imagine, but red and blue for sure.” Defendant argued that the evidence showed that defendant was just one of the possible manufacturers which may have sold the red snow tube in question.

The defendants also introduced evidence showing that at the time tubes were purchased from the defendant, tubes were also purchased from another tube manufacturer.

The tubes sold by the defendant also had a plastic bottom, and the plaintiff testified her inner tube had a regular rubber bottom.

The court then looked at how a product liability claim based on negligence needed to be proven under Illinois’s law.

“A product liability claim [based] in negligence is concerned with both defendant’s fault and the condition of the product.” To succeed in a products liability claim based on negligence, a plaintiff must prove: (1) the existence of a duty; (2) a breach of that duty; (3), an injury that was proximately caused by that breach, and (4) damages. “‘A manufacturer has a nondelegable duty to produce a product that is reasonably safe for all intended uses.'” “A plaintiff must show that the manufacturer knew or should have known of the risk posed by the design at the time of the manufacture to establish that the manufacturer acted unreasonably based on the foreseeability of harm.” Moreover, in a products liability action asserting a claim based in negligence, “[t]he plaintiff must show that the manufacturer breached his duty to design something safer for the user because the quality of the product in question was insufficient.”

However, the most important issue is the plaintiff must identify the manufacturer of the defective product and establish a relationship between the injury and the product. The identification of the manufacturer must be more than speculation.

Most importantly, “the plaintiff must identify the manufacturer of the product and establish a causal relationship between the injury and the product.” While the plaintiff may prove these elements by direct or circumstantial evidence, “liability cannot be based on mere speculation, guess, or conjecture.”

Because the tube described by the plaintiff was different from what was sold by the manufacturer and because the plaintiff did not have the actual tube, the appellate court upheld the decision of the trial court.

She testified that a photograph of a snow tube used by her son showed a red-colored tube, but did not indicate the manufacturer’s name on it. Without the snow tube itself or any examination of it, plaintiff cannot establish or raise a genuine issue of material fact that defendant was the manufacturer. Without the snow tube itself or any photographs of it, or an examination of the snow tube to determine if the accident was a result of a preexisting defect, plaintiff cannot prove a prima facie products liability case against the defendant.

So Now What?

Simple but very lengthy decision because the court bent over backwards to prove why it could not rule for the plaintiff. Yet this decision is instructive because you have to have more than an injury to ask for money in a lawsuit or claim.

There must be a relationship with what caused you the injury, and the person you are claiming caused the injury and a relationship with you. Lacking one of those it does not matter if you signed a release or assumed the risk because you can’t prove negligence.

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Buckel v. Tube Pro Inc., 2016 IL App (1st) 150427-U; 2016 Ill. App. Unpub. LEXIS 638

Buckel v. Tube Pro Inc., 2016 IL App (1st) 150427-U; 2016 Ill. App. Unpub. LEXIS 638

Susan Buckel, Plaintiff-Appellant, v. Tube Pro Inc., Defendant-Appellee.

No. 1-15-0427

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

2016 IL App (1st) 150427-U; 2016 Ill. App. Unpub. LEXIS 638

March 31, 2016, Decided

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).

PRIOR HISTORY: [**1] Appeal from the Circuit Court of Cook County. No. 13 L 116. The Honorable Kathy M. Flanagan, Judge, presiding.

DISPOSITION: Affirmed.

JUDGES: JUSTICE GORDON delivered the judgment of the court. Presiding Justice Reyes and Justice Lampkin concurred in the judgment.

OPINION BY: GORDON

OPINION

JUSTICE GORDON delivered the judgment of the court.

Presiding Justice Reyes and Justice Lampkin concurred in the judgment.

ORDER

[*P1] Held: Where plaintiff did not and cannot produce the allegedly defective snow tube involved in her snow tubing accident or produce any photographs of the snow tube itself, and where the subject snow tube was never retrieved or examined for defects, plaintiff cannot establish a genuine issue of material fact that defendant was the manufacturer and thus the trial court did not err in granting summary judgment in favor of defendant.

[*P2] Plaintiff Susan Buckel brought this products liability action based on a negligence theory against defendant Tube Pro Inc., seeking damages for injuries she sustained during a snow tubing accident at the Villa Olivia ski facility in Bartlett, Illinois, on January 17, 2011. Plaintiff alleges that she was injured as a result of a defective snow tube manufactured by defendant. Defendant moved [**2] for summary judgment, claiming that plaintiff provided insufficient evidence to raise a genuine issue of material fact regarding the identity of the manufacturer of the snow tube in question. Defendant further argued that, without the claimed defective snow tube, plaintiff could not prove the necessary elements to establish a prima facie case of products liability against defendant. The trial court granted defendant’s motion, and plaintiff now appeals.

[*P3] For the reasons that follow, we affirm the trial court’s grant of summary judgment in favor of defendant.

[*P4] BACKGROUND

[*P5] I. Pleadings

[*P6] A. Complaint

[*P7] On January 4, 2013, plaintiff filed a complaint against defendants: (1) Daniel Corrado; Greater Chicago Distribution Corporation, individually and doing business as Villa Olivia; and Villa Olivia1; (2) Tube Pro; (3) “Unknown Snow Tube Manufacturer”; and (4) “Unknown Owners and Non-Record Claimants.”

1 On July 24, 2013, the trial court granted plaintiff’s motion to voluntary dismiss without prejudice, Daniel Corrado, Greater Chicago Distribution Corporation, individually and doing business as Villa Olivia. The record does not contain a copy of plaintiff’s motion, but includes the trial court’s order [**3] granting it.

[*P8] In her complaint, plaintiff made the following allegations:

[*P9] Plaintiff alleged that she was at Villa Olivia on January 17, 2011, and purchased a ticket to snow tube on the premises of Villa Olivia. Villa Olivia provided her with a snow tube to use, which was manufactured by defendant. As she descended down the hill using the snow tube provided by Villa Olivia, a sharp object stuck out of the tube, dug into the ground, and caused the snow tube to stop on the hill. While her snow tube was stopped on the hill, she was struck by another snow tube from behind and was injured. Plaintiff alleged her snow tube was defective.

[*P10] Only count II of plaintiff’s complaint, which is entitled “Negligence,” is directed at defendant. Plaintiff alleged that the snow tube she used at Villa Olivia was designed, manufactured, assembled, distributed, and sold by defendant. Plaintiff further alleged that defendant negligently designed, manufactured, distributed, and sold the snow tube equipment without appropriate safeguarding and an adequate warning label. Plaintiff also contended that defendant failed to adequately warn users of the dangers of the snow tube, to design and manufacture the snow tube [**4] safely, or to properly inform or instruct the purchaser of the snow tube’s use. Plaintiff alleged that defendant negligently tested and inspected or failed to test, inspect, and heed the test results of the subject snow tube involved in her accident. Plaintiff claimed that, as a result of defendant’s “careless and negligent acts and omissions,” she “was severely and permanently injured both internally and externally.”

[*P11] B. Answer

[*P12] On April 18, 2013, defendant filed its “Answer and Affirmative Defense” to plaintiff’s complaint. Defendant admitted that it manufactured snow tubes, including certain snow tubes used at Villa Olivia and that, on or before January 17, 2011, it engaged in the business of designing, manufacturing, assembling, distributing, and selling snow tubes. Defendant answered that it had no knowledge regarding the truth or falsity of plaintiff’s statement that the snow tube she used at Villa Olivia was designed, manufactured, assembled, distributed, or sold by defendant. Defendant denied it had negligently designed, manufactured, distributed, and sold snow tube equipment without appropriate safeguarding and an adequate warning label. Defendant also denied plaintiff’s allegation [**5] that it failed to adequately warn users of the dangers of the snow tube, to design and manufacture the snow tube safely, or to properly inform or instruct the purchaser of the snow tube’s use. Defendant also denied that it negligently tested and inspected or failed to test, inspect, and heed the test results of the subject snow tube involved in plaintiff’s accident.

[*P13] Defendant also asserted the affirmative defense of comparative negligence, claiming plaintiff was negligent in failing to observe and avoid the snow tube which allegedly struck her and was negligent in failing to move from the middle of the hill, when she knew, or in the exercise of ordinary care, should have known, that other snow tubes were descending down the hill. Defendant also claimed plaintiff was negligent in failing to properly inspect the subject snow tube prior to riding in it and was negligent in failing to keep a proper lookout. Defendant also alleged plaintiff was inattentive and unobservant to surrounding conditions and was the sole proximate cause of her alleged injuries and damages.

[*P14] C. Plaintiff’s Reply

[*P15] In response to defendant’s affirmative defense of comparative negligence, plaintiff denied she was negligent [**6] in failing to observe and avoid the snow tube which allegedly struck her or negligent in failing to move from the middle of the snow tube hill. Plaintiff also denied that she was negligent in failing to properly inspect the subject snow tube prior to riding it or that she was negligent in keeping a proper lookout. Plaintiff denied she was inattentive or unobservant to surrounding circumstances.

[*P16] D. Amended Complaint and Answer

[*P17] On July 8, 2013, plaintiff filed an amended complaint against defendant, naming as additional defendants “Village of Bartlett and the Bartlett Park District.”2 The allegations of count II, which were directed at defendant, remained substantially the same.

2 On October 28, 2013, plaintiff filed a motion to voluntarily dismiss, without prejudice, the Village of Bartlett, which the trial court granted on November 1, 2013. 735 ILCS 5/2-1009 (West 2010). Additionally, on November 1, 2013, the trial court granted defendant Bartlett Park District’s section 2-619(a)(5) motion to dismiss count V of plaintiff’s amended complaint, without prejudice. 735 ILCS 5/2-619(a)(5) (West 2010). Tube Pro is the only remaining defendant on appeal.

[*P18] On July 12, 2013, defendant filed its “Answer and Affirmative Defense to Plaintiff’s Amended Complaint,” [**7] which asserted the same affirmative defenses and denied the same allegations.

[*P19] On March 25, 2014, defendant filed a motion for leave to file an amended answer and affirmative defenses, which included the defense of comparative negligence pled in its prior answer plus additional affirmative defenses. Defendant raised the additional affirmative defense of joint and several liability and further contended that the exculpatory clause included on the snow tubing ticket plaintiff purchased from Villa Olivia barred plaintiff’s cause of action against defendant. Defendant also raised as an affirmative defense that the negligent act of the snow tube rider who struck plaintiff was an intervening or superseding cause of her accident, which barred recovery against defendant. The trial court granted the motion on March 25, 2014.

[*P20] On April 30, 2014, plaintiff filed a motion for leave to file answers to defendant’s amended affirmative defenses to plaintiff’s amended complaint.3

3 There is no order in the record indicating whether the trial court granted plaintiff’s motion for leave to file answers to defendant’s amended affirmative defenses to plaintiff’s amended complaint.

[*P21] While plaintiff admitted that [**8] she paid for a ticket to engage in snow tubing at Villa Olivia, she denied defendant’s allegation that, by purchasing the snow tubing ticket, she agreed to the terms and conditions of the exculpatory clause contained on the ticket. Plaintiff denied the allegation that the parties to the exculpatory clause intended that the terms and conditions of the exculpatory clause apply to defendant. Plaintiff further denied that defendant was a thirdparty beneficiary of the exculpatory clause and that the exculpatory clause included on the snow tubing ticket plaintiff purchased from Villa Olivia barred plaintiff’s cause against defendant.

[*P22] As to defendant’s additional affirmative defense of joint and several liability, plaintiff denied the allegation that the sole proximate cause of plaintiff’s accident was the negligent acts or omissions, or intentional, reckless, willful, and wanton acts or omissions, of other persons or entities not presently parties to the lawsuit, including, but not limited to, Bartlett Park District and the snow tube rider who struck her. Plaintiff further denied defendant’s allegation that, pursuant to section 2-1117 of the Illinois Code of Civil Procedure, any fault, which it specifically denied, was less than 25% of the [**9] total fault. 735 ILCS 5/2-1117 (West 2010).

[*P23] Plaintiff denied defendant’s affirmative defense that the negligent act or omission of the snow tube rider who struck her was an intervening or superseding cause of her accident, which barred recovery against defendant. Plaintiff also denied defendant’s allegation that the intervening or superseding negligent acts or omissions of the snow tube rider who struck her barred her recovery against defendant.

[*P24] On May 23, 2013, defendant filed answers to plaintiff’s interrogatories. Defendant named its president and co-founder, William Pawson, and its cofounder, Annie Pawson, as witnesses who would testify to the design, manufacture, and sale of snow tubes by defendant. Defendant also stated that William Pawson and Annie Pawson would testify that defendant manufactures snow tubes for sale and does not inspect or maintain products subsequent to sale to a customer.

[*P25] Plaintiff filed answers to defendant’s interrogatories.4 Plaintiff named certain of defendant’s employees as witnesses who would testify regarding their knowledge of the occurrence alleged in her complaint, including their observations and the policies of defendant. The witnesses included William Pawson, Annie [**10] Pawson, Victor Clark, Rick Root, Jennifer Huras, and Abby Pawson.5

4 Exhibit “A” to defendant’s motion for authorization regarding mental health records, subpoenas, and testimony contains plaintiff’s answers to defendant’s interrogatories, but it does not provide a date of filing.

5 The record does not contain a copy of the depositions of Victor Clark, Rick Root, Jennifer Huras, and Abby Pawson.

[*P26] On December 10, 2013, the trial court ordered party depositions to be completed by January 28, 2014. The depositions of William Pawson6 and Annie Pawson7 were discovery depositions.

6 Plaintiff attached an excerpt of William Pawson’s deposition in her response to defendant’s motion for summary judgment, and defendant attached the entire transcript of William Pawson’s deposition in its motion for summary judgment.

7 Plaintiff attached the entire transcript of Annie Pawson’s deposition as Exhibit “D” to her response to defendant’s motion for summary judgment.

[*P27] II. Motion for Summary Judgment

[*P28] A. Defendant’s Motion

[*P29] On September 15, 2014, defendant moved for summary judgment, claiming that plaintiff provided insufficient evidence to raise a genuine issue of material fact regarding the identity of the manufacturer [**11] of the snow tube in question. In its motion, defendant claimed that, because the snow tube was never inspected or retained after the accident, plaintiff could not prove the necessary elements to establish a prima facie case of product liability against defendant.

[*P30] In support of its motion for summary judgment, defendant relied on invoices indicating that Villa Olivia purchased snow tubes from two different companies: (1) defendant; and (2) Tough Tube Manufacturing Inc. (Tough Tube). An invoice showed that in September 2000, Villa Olivia purchased 100 snow tubes from Tough Tube. Another invoice showed that in December 2012, Villa Olivia purchased 14 refurbished snow tube covers from defendant. The invoices also showed that in 2008, Villa Olivia purchased 5 red snow tubes, 1 navy blue snow tube, and 10 refurbished snow tube covers from defendant. The invoices showed that in 2009, Villa Olivia purchased 10 royal blue snow tubes and 36 refurbished covers from defendant.

[*P31] Defendant attached the deposition of plaintiff, who testified that the colors of the tubes at Villa Olivia on the date of her accident were “red, green, and blue.” Defendant also relied on the deposition of plaintiff to [**12] establish that the snow tube she used at the time of her accident was red. Plaintiff testified, “I believe it was red.”

[*P32] Defendant also attached the deposition transcript of William Pawson, who testified that the snow tubes purchased by Villa Olivia from defendant were red and blue. William Pawson testified that he believed “those [were] the only two colors that we sold them.” Defendant also relied on William Pawson’s testimony that Villa Olivia purchased Tough Tube snow tubes that were “a mix of red, blue, maybe some green and plum, I would imagine, but red and blue for sure.” Defendant argued that the evidence showed that defendant was just one of the possible manufacturers which may have sold the red snow tube in question.

[*P33] William Pawson also testified that defendant never experienced any reports that its snow tubes were defective. William Pawson testified that he was not sure “how” or “why” a protruding object could come out of plaintiff’s snow tube. He testified that: “There is just the inner tube. It’s the only accessory item inside the actual tube cover. And the valve is welded to the tube itself. So I don’t understand. I’m not sure how that could occur.”

[*P34] Defendant further relied [**13] on plaintiff’s deposition that the snow tube involved in her accident did not have a plastic bottom. Plaintiff testified that the type of material she observed on the bottom of her snow tube “[was] not plastic,” but a normal inner tube material, which she assumed was rubber. Defendant also referenced William Pawson’s testimony to show that the bottom of defendant’s snow tubes were plastic. He testified that one of defendant’s component parts for its snow tubes is a “plastic bottom.”

[*P35] Defendant cited plaintiff’s deposition to show that she could not say for certain who the manufacturer of the snow tube was. Plaintiff testified that “[she] did not look at the markings on the tube” she used at the time of her accident and, therefore, was uncertain as to its manufacturer. Plaintiff testified, while looking at photographs that showed different snow tubes in use at Villa Olivia “before her accident,” she could not say for certain that they showed the name of defendant. Plaintiff testified:

“I can’t tell you the exact letters; but I can tell you how when you blow it up that it looks like two words, okay. And I can kind of make out certain letters; but could I clearly say it was a T or a P or [**14] a B or what, no.”

Plaintiff also testified she did not take any photographs of the exact snow tube involved in her accident.

[*P36] In sum, defendant argued that it was entitled to summary judgment as a matter of law because the snow tube involved in plaintiff’s accident was no longer available and, therefore, plaintiff could not identify the manufacturer of the snow tube nor support a reasonable inference that defendant manufactured the snow tube she used at the time of her tubing accident. In addition, defendant argued plaintiff could not prove a prima facie case without the allegedly defective snow tube.

[*P37] B. Plaintiff’s Response

[*P38] On December 1, 2015, plaintiff filed a response to defendant’s motion for summary judgment. In her response, plaintiff argued both: (1) that defendant was the manufacturer of the plaintiff’s defective snow tube; and (2) that genuine issues of material fact existed as to whether defendant’s defective snow tube was the proximate cause of plaintiff’s injuries.

[*P39] Plaintiff alleged that her snow tube was defective. Attaching excerpts of her deposition transcript, plaintiff described the defect as follows:

“DEFENDANT’S ATTORNEY: When is the first occasion you had to look [**15] at the tube after the accident?”

PLAINTIFF: The minute I came to a stop.

DEFENDANT’S ATTORNEY: While you were on the hill?

PLAINTIFF: While I’m on the hill.

DEFENDANT’S ATTORNEY: What did you see?

PLAINTIFF: I wanted to know why I was stuck. So I lifted up the tube, and I could see a 5-inch slash and this hard spiky thing sticking out of the tube *** It was a solid, a sharp object.”

Plaintiff further described the defect as follows:

“DEFENDANT’S ATTORNEY: Before the operator came up to you and upon you, did you look at the tube?

PLAINTIFF: Yes.

DEFENDANT’S ATTORNEY: And this–whatever you observed on the bottom of the tube, was it the material of the bottom of the tube?

PLAINTIFF: It looked like the insides of the tube.

DEFENDANT’S ATTORNEY: Well, the tube you told me was kind of like, in your mind at least, a standard rubber inner tube, correct?

PLAINTIFF: Well, I kind of remember–it could have been–I don’t recall the exact material of the tube, the outside of the tube; but the frozen object looked like it was coming out of the tube.

DEFENDANT’S ATTORNEY: This frozen object, was it part of the material of the tube or some foreign object?

PLAINTIFF: I thought maybe it was a metal piece or something, [**16] and it wasn’t. It was the innards of the tube, and I couldn’t even move it with my glove. It was shaped as if it was, like, a knifish form coming out.

DEFENDANT’S ATTORNEY: And how long was this shape?

PLAINTIFF: I know that the slash in the tube was about that big (indicating), so 5 inches, and then this item was coming out of it.”

[*P40] Plaintiff also attached the deposition transcript of Villa Olivia employee, Michael Conrardy, who worked on the snow tube hill for multiple winter seasons. Conrardy testified that during the 2010-2011 winter season, he found one snow tube in their “tube shack” that had a crack in it. Conrardy testified:

“DEFENDANT’S ATTORNEY: Did you ever become aware of cracking, cracks in the bottom of any snow tubes?

CONRARDY: Yeah, that was one thing that I noticed when I was working. I was bringing out the tubes out of the tube shack in the morning and there was quite a decent crack in the bottom.”

Conrardy further described the snow tube as follows:

“PLAINTIFF’S ATTORNEY: In as much detail as you can, can you describe to me first where the slit was?

CONRARDY: It was like the side. I don’t remember if it was the side near to where the rope connected or not, but it was just [**17] on the general like circumference of it, you know, and it was like a rounded slit that went–it was about eight inches long, and it wasn’t protruding in. It was more protruding out.

PLAINTIFF’S ATTORNEY: Okay.

CONRARDY: So if someone went down the hill, as a safety issue, if it was protruding out and they caught an edge they could just flip ***.”

[*P41] Plaintiff highlighted Conrardy’s testimony where he stated that “It would have caught snow and that’s what I’m saying. It wouldn’t protrude into the tube where it could hurt the person, like their bottom. It would literally protrude down and out.” Conrardy further stated that the slit “was on the bottom plastic part like right at the edge.” Conrardy recalled the tube with the slit “was just one of the ordinary tubes.”

[*P42] Plaintiff also attached the deposition transcript of Edward Jorens, Villa Olivia superintendant of golf and skiing, who was involved in the initial procurement and purchase of snow tubes for the facility. Jorens testified that “once in a while there’s cracks” in the plastic bottoms of the snow tubes. Jorens also testified that cracks “bigger than 2 or 3 inches or so” on the bottom of the snow tubes would “[t]o a certain degree” affect [**18] the speed of the tube going down the hill. Jorens also testified that he discussed the cracking at the bottom of the tubes with defendant and that “Annie [Pawson] [was] usually the person I talked to from Tube Pro.”

[*P43] In her response, plaintiff attached the deposition of Annie Pawson, who testified that defendant receives yearly complaints “in general” from customers about the bottom of their snow tubes being cracked. Annie Pawson testified that she has personally seen a bottom of a defendant snow tube being cracked and described it “as a slit, like a little slit, a scoring, just a little slit.” Annie Pawson also testified, “I don’t recall specifically my customer mentioning cracks, per se. I just recall them requesting that we refurbish some of their old stock that they had purchased in the past.”

[*P44] Plaintiff further claimed in her response that it was highly unlikely that Tough Tubes were being used at Villa Olivia at the time of her accident. In support of this claim, plaintiff attached testimony by Jorens, who testified that “an average of four or five” snow tubes were stolen per year. Jorens further testified:

“DEFENDANT’S ATTORNEY: With regard to the 100 tubes purchased from Tough [**19] Tube in September 2000, by the time you retired in December of 2010, do you know how many of those tubes were still left at Villa Olivia?

JORENS: Not very many. I’m sure of that.

DEFENDANT’S ATTORNEY: Why do you say that?

JORENS: Well, in other words, every year we’d send them back to get refurbished. Probably anywhere from I’m guessing 10, 10 of the tubes.”

DEFENDANT’S ATTORNEY: Did you send tubes to be refurbished to any company other than Tube Pro?

JORENS: No.”

[*P45] Plaintiff also relied on Jorens’s testimony to show that more defendant snow tubes were being used at Villa Olivia at the time of her accident than Tough Tube snow tubes. Jorens testified that, from 2000 to when he retired in 2010, Villa Olivia continued to purchase snow tubes from defendant. Jorens did not believe Villa Olivia purchased snow tubes from any other company from 2000 to 2010. Plaintiff also attached invoices showing that, from 2002 to 2009, Villa Olivia purchased 60 refurbished snow tube covers from defendant. The invoices also show that Villa Olivia purchased “5 red snow tubes,” “1 double rider snow tube,” “10 royal blue snow tubes,” and 27 inner tubes from defendant in the same period. Plaintiff also relied on [**20] Annie Pawson’s testimony and a “Customer Sales Ordering Info Sheet” to show that, in November 2002, defendant purchased 30 defendant snow tubes with Pepsi logos on them. Pawson testified as follows:

“PLAINTIFF’S ATTORNEY: Okay. And then the number of tubes, 30 and it has Pepsi. Do you know what the word next to Pepsi–is that tubes?

ANNIE PAWSON: Tubes, yes sir.

PLAINTIFF’S ATTORNEY: Is that a purchase by Villa Olivia, 30 new Pepsi tubes?

ANNIE PAWSON: Yes, it is.”

[*P46] Plaintiff also argued in her reply that “she was not an expert on materials or plastics” and therefore, her testimony about how her tube did not have a plastic bottom was immaterial in determining the identity of the manufacturer. Plaintiff relies on Conrardy’s testimony to show that he, too, was uncertain as to what the material of the tube bottoms were. Plaintiff points out that Conrardy testified that he believed the bottom of the tube was made of rubber, but then said it could be made of plastic after defendant counsel “raised the possibility of the bottom being plastic.” Conrardy testified:

“DEFENDANT’S ATTORNEY: And is it possible that the bottom may have been plastic as opposed to rubber, if you know?

CONRARDY: Actually, [**21] yeah, that’s a good point. I could see it being plastic because it just seemed more hard and thicker than the inside, so that actually makes sense because the inside was more cushiony than the bottom.”

[*P47] Plaintiff also attached an excerpt of William Pawson’s deposition transcript where he described Tough Tube and defendant as both having plastic bottoms. Pawson testified that they both had the “same sewing design premise whereby you have a sewn canvas top that’s pleated into the plastic bottom with the seatbelt based trim.”

[*P48] Finally, in her response, plaintiff claimed that she could still prove a prima facie case without the defective snow tube because the defect at issue was known to defendant.

[*P49] C. Trial Court’s Ruling

[*P50] On January 21, 2015, the trial court granted defendant’s motion for summary judgment. In its five-page memorandum opinion, the trial court held that defendant was entitled to summary judgment because “[p]laintiff [could not] establish, or even raise a question of fact that, defendant was the manufacturer of the subject snow tube.” The trial court noted that the “subject snow tube [was] no longer in existence” and, therefore, plaintiff could not “meaningfully identify the specific [**22] snow tube” that “she rode on the day of the accident.” The trial court stated that: “[n]either the Plaintiff nor any other evidence in the record can identify anything about the subject snow tube which distinguishes it from others in such a way that a reasonable inference can be made that defendant was the manufacturer of it.” The trial court found:

“[T]he evidence does not show that the specific defective condition complained of-that the tube bottom contained a 4 to 5 inch hard and sharp protrusion poking through a 5 inch slash which caused the tube to completely stop while going down the hill was known to be a common defect in a Tube Pro snow tube.”

The trial court reasoned: “The circumstantial evidence here may raise a possibility that defendant was the manufacturer of the snow tube, but it does not justify an inference of a probability that it was the manufacturer.” (Emphasis in original.) Based upon the foregoing, the trial court found that defendant was entitled to summary judgment.

[*P51] On February 12, 2015, plaintiff filed a notice of appeal, and this appeal followed.

[*P52] ANALYSIS

[*P53] In this direct appeal, plaintiff appeals the trial court’s grant of summary judgment in favor of defendant. Plaintiff argues [**23] that the evidence demonstrates a genuine issue of material fact about whether defendant was the manufacturer of the snow tube that caused her injuries. For the following reasons, we affirm the trial court’s grant of summary judgment.

[*P54] I. Standard of Review

[*P55] Summary judgment is appropriate where the pleadings, depositions, and admissions on file, together with any affidavits and exhibits, when viewed in the light most favorable to the nonmoving party, indicate that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2014). When determining if the moving party is entitled to summary judgment, the court construes the pleadings and evidentiary material in the record strictly against the movant. Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186, 766 N.E.2d 1118, 262 Ill. Dec. 815 (2002). We review a trial court’s decision on a motion for summary judgment de novo. Outboard 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 the reviewing court performs 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).

[*P56] “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. “Mere speculation, conjecture, or guess is insufficient 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). The party [**24] 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 movant may meet its burden of proof either “by affirmatively showing that some element of the case must be resolved in its 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)). To prevent the entry of summary judgment, the nonmoving party must present a bona fide factual issue and not merely general conclusions of law. Caponi v. Larry’s 66, 236 Ill. App. 3d 660, 670, 601 N.E.2d 1347, 176 Ill. Dec. 649 (1992)). Therefore, while the party opposing the motion is not required to prove her case at the summary judgment stage, she must provide some factual basis to support the elements of her cause of action. Illinois State Bar Ass’n Mutual Insurance Co. v. Mondo, 392 Ill. App. 3d 1032, 1036, 911 N.E.2d 1144, 331 Ill. Dec. 914 (2009); Ralston v. Casanova, 129 Ill. App. 3d 1050, 1059, 473 N.E.2d 444, 85 Ill. Dec. 76 (1984). On a motion for summary judgment, the court cannot consider any evidence that would be inadmissible at trial. Brown, Udell & Pomerantz, Ltd. v. Ryan, 369 Ill. App. 3d 821, 824, 861 N.E.2d 258, 308 Ill. Dec. 193 (2006). Thus, the party opposing summary judgment must produce some competent, admissible evidence which, if proved, would warrant entry of judgment in her favor. Brown, Udell & Pomerantz, 369 Ill.App.3d at 824. Summary judgment is appropriate if the nonmoving party cannot establish an element of her claim. Willett v. Cessna Aircraft Co., 366 Ill. App. 3d 360, 368, 851 N.E.2d 626, 303 Ill. Dec. 439 (2006).

[*P57] We may affirm on any basis appearing in the record, whether or not the trial court relied on that basis, and even if the trial court’s reasoning was incorrect. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50, 594 N.E.2d 1344, 171 Ill. Dec. 824 (1992).

[*P58] II. Plaintiff’s [**25] Claim Against Defendant

[*P59] Plaintiff sued defendant under a products liability claim based on a theory of negligence. Blue v. Environmental Engineering, Inc., 215 Ill. 2d 78, 89, 828 N.E.2d 1128, 293 Ill. Dec. 630 (2005) (discussing the differences between a products liability case based on a negligence theory and a strict products liability case). Plaintiff alleged that defendant committed one or more of the following careless and negligent acts or omissions: (1) designed, manufactured, distributed and sold the snow tube equipment without appropriate safeguarding and an adequate warning label; (2) failed to adequately warn users of the dangers of the snow tube; (3) failed to design and manufacture the snow tube safely; (4) failed to properly inform or instruct the purchaser of the snow tube’s use; and (5) negligently designed, manufactured, tested, inspected (or failed to test and inspect), and heeded the test results of the subject snow tube involved in her accident.

[*P60] “A product liability claim [based] in negligence is concerned with both defendant’s fault and the condition of the product.” Sobczak v. General Motors Corp., 373 Ill. App. 3d 910, 923, 871 N.E.2d 82, 312 Ill. Dec. 682 (2007) (citing Coney v. J.L.G. Industries, Inc., 97 Ill. 2d 104, 117, 454 N.E.2d 197, 73 Ill. Dec. 337 (1983)). To succeed in a products liability claim based on negligence, a plaintiff must prove: (1) the existence of a duty; (2) a breach of that duty; (3), an injury that was proximately caused [**26] by that breach, and (4) damages. Jablonski v. Ford Motor Co., 2011 IL 110096, ¶ 82, 955 N.E.2d 1138, 353 Ill. Dec. 327 (citing Heastie v. Roberts, 226 Ill. 2d 515, 556, 877 N.E.2d 1064, 315 Ill. Dec. 735 (2007)). “‘A manufacturer has a nondelegable duty to produce a product that is reasonably safe for all intended uses.'” Sobczak , 373 Ill. App. 3d at 923 (quoting Hansen v. Baxter Healthcare Corp., 198 Ill. 2d 420, 433, 764 N.E.2d 35, 261 Ill. Dec. 744 (2002)). “A plaintiff must show that the manufacturer knew or should have known of the risk posed by the design at the time of the manufacture to establish that the manufacturer acted unreasonably based on the foreseeability of harm.” Sobczak v. General Motors Corp., 373 Ill. App. 3d at 923 (citing Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 255, 864 N.E.2d 249, 309 Ill. Dec. 383 (2007)). Moreover, in a products liability action asserting a claim based in negligence, “[t]he plaintiff must show that the manufacturer breached his duty to design something safer for the user because the quality of the product in question was insufficient.” Blue, 345 Ill. App. 3d at 463 (citing Rotzoll v. Overhead Door Corp., 289 Ill. App. 3d 410, 419, 681 N.E.2d 156, 224 Ill. Dec. 174 (1997)).

[*P61] Most importantly, “the plaintiff must identify the manufacturer of the product and establish a causal relationship between the injury and the product.” Zimmer v. Celotex Corp., 192 Ill. App. 3d 1088, 1091, 549 N.E.2d 881, 140 Ill. Dec. 230 (1989) (citing Schmidt v. Archer Iron Works, Inc., 44 Ill. 2d 401, 405-06, 256 N.E.2d 6 (1970), cert. denied 398 U.S. 959, 90 S. Ct. 2173, 26 L. Ed. 2d 544). While the plaintiff may prove these elements by direct or circumstantial evidence, “liability cannot be based on mere speculation, guess, or conjecture.” Zimmer, 192 Ill. App. 3d at 1091. Therefore, when circumstantial evidence is relied on, the circumstances must justify an inference of probability as distinguished from mere possibility.” (Emphasis added.) Naden v. Celotex Corp., 190 Ill. App. 3d 410, 415, 546 N.E.2d 766, 137 Ill. Dec. 821 (1989); Mateika v. LaSalle Thermogas Co., 94 Ill. App. 3d 506, 508, 418 N.E.2d 503, 49 Ill. Dec. 649 (1981); Zimmer, 192 Ill. App. 3d at 1091.

[*P62] III. Parties’ Arguments

[*P63] A. [**27] Plaintiff’s Arguments

[*P64] On appeal, plaintiff claims that the trial court erred in granting defendant’s motion for summary judgment because she raised a genuine issue of material fact about whether defendant was the manufacturer of the snow tube. Plaintiff argues that, since the court is to consider the evidence strictly against defendant and liberally in favor of her, summary judgment was not a proper disposition here. Plaintiff argues that the record, including invoices and witness testimony, shows that fair minded persons could draw different conclusions about whether defendant was the manufacturer.

[*P65] Specifically, plaintiff argues that according to the testimony of Jorens, Villa Olivia’s superintendent of golf and skiing, four to five snow tubes were stolen each year between 2000 to 2011 and that the majority of defendant snow tubes purchased by Villa Olivia occurred in 2008 and 2009. According to plaintiff, this figure equates to potentially 44 to 55 Tough Tubes being stolen prior to plaintiff’s injury. Plaintiff also relies on invoices that show Villa Olivia purchased 60 refurbished snow tube covers from defendant. Plaintiff argues that, given the refurbishment of these 60 snow tubes [**28] and the approximately 44 to 55 Tough Tubes stolen each year between 2000 to 2011, it was highly unlikely that Tough Tubes were still being used at Villa Olivia at the time of plaintiff’s accident. Plaintiff also relies on the testimony of Jorens to show that more defendant snow tubes than Tough Tube snow tubes were being used at Villa Olivia in January 2011.

[*P66] Plaintiff also claims that witness testimony raises questions of material fact as to whether the defect identifies defendant as the subject manufacturer. Plaintiff claims that defendant was aware of alleged defects in its snow tubes at Villa Olivia prior to her accident. Annie Pawson testified that she had observed defective defendant snow tubes before and that Villa Olivia employee Conrardy described the defective snow tube he observed as having a protruding crack. Additionally, plaintiff relies on her own testimony when she described the alleged defect “like a knife had gone through the ice, sharp object had gone through the ice.” Jorens testified that he discussed the cracking plastic defect with defendant, and that the plastic cracking would decrease speed on a hill. Plaintiff also observes that, prior to January 2011, defendant [**29] had received yearly complaints regarding the cracking of the plastic bottoms.8 Based on this evidence, plaintiff argues that she can prove a prima facie case without the snow tube because the defect at issue was known to defendant.

8 In her brief, plaintiff claims that, prior to January 2011, defendant received yearly complaints regarding the plastic bottoms cracking, without citing to the record.

[*P67] B. Defendant’s Arguments

[*P68] Defendant, on the other hand, argues that the evidence presented to the trial court shows that plaintiff could not identify anything about the subject snow tube which distinguished it from other tubes such that a reasonable inference could be drawn that defendant manufactured the allegedly defective snow tube. Defendant claims that, without the snow tube, plaintiff has failed to present evidence on a critical element in her product liability claim based on negligence. Since plaintiff did not and could not produce the snow tube, she could not introduce the alleged defect into evidence. Consequently, defendant argues that plaintiff has failed to show and cannot show that any defect existed at the time the snow tube left defendant’s control. Hence, without the tube itself [**30] or photos of it, defendant asserts that a jury could only speculate about whether plaintiff’s injuries were caused by a defect in the tube, and whether the defect was present when the snow tube allegedly left defendant’s control, and whether defendant even manufactured the snow tube. Under such circumstances, defendant argues that the trial court properly entered summary judgment in its favor.

[*P69] IV. Failure to Cite Authority

[*P70] First, we observe that plaintiff’s appellate brief fails to comply with Illinois Supreme Court Rule 341(h)(7), which requires a proponent to cite supporting authority; and the failure to do so results in waiver. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). Illinois Supreme Court Rule 341(h)(7) provides that an appellant’s brief must “contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on.” (Emphasis added.) Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). The purpose of this rule is to provide “[a] court of review” with “clearly defined” issues and cites to “pertinent authority.” People v. Trimble, 181 Ill. App. 3d 355, 356, 537 N.E.2d 363, 130 Ill. Dec. 296 (1989) (discussing the provisions of former Illinois Supreme Court Rule 341(e)(7), which is now numbered as Illinois Supreme Court Rule 341(h)(7), and its importance to the appellate court). A reviewing court “is not a depository in which the appellant may dump the burden of argument and research.” Trimble, 181 Ill. App. 3d at 356. The appellate [**31] court stated in Trimble:

“To ignore such a rule by addressing the case on the merits would require this court to be an advocate for, as well as the judge of the correctness of, defendant’s position on the issues he raises. On the other hand, strict compliance with the rules permits a reviewing court to ascertain the integrity of the parties’ assertions which is essential to an accurate determination of the issues raised on appeal.” Trimble, 181 Ill. App. 3d at 356-57.

[*P71] In the instant case, plaintiff failed to cite a single substantive case in support of her argument that the trial court improperly granted summary judgment in favor of defendant. The cases that plaintiff cites in the argument section of her brief merely establish general principles of law regarding summary judgment and a products liability action. In Part A of the argument section of her brief which discusses how the evidence justifies an inference of probability that defendant was the manufacturer of the subject snow tube, plaintiff cites only Black’s Law Dictionary and fails to cite any precedent in furtherance of her argument. Furthermore, in Part B of the argument section of her brief, plaintiff fails to cite any legal authority supporting her argument [**32] that she can prove a prima facie case without the defective tube since the defect at issue was known to defendant.9 Accordingly, because plaintiff has failed to comply with Illinois Supreme Court Rule 341(h)(7), the plaintiff has waived consideration of her claim that the trial court improperly granted summary judgment in favor of defendant.

9 Plaintiff mentions Wiesner v. Fontaine Trailer Co., No. 06-CV-6239, 2010 U.S. Dist. LEXIS 81672, 2010 WL 3023398 (N.D. Ill. 2010), an unreported case discussed in defendant’s motion for summary judgment. However, we will not cite an unreported case. State Farm Mutual Automobile Insurance Co. v. Progressive Northern Insurance Co., 2015 IL App (1st) 140447, ¶ 101, 391 Ill. Dec. 170, 30 N.E.3d 440 (“We will not cite an unreported case.”); Skokie Castings, Inc. v. Illinois Insurance Guaranty Fund, 2012 IL App (1st) 111533, ¶ 15, 964 N.E.2d 1225, 358 Ill. Dec. 203 (“an unreported case” is “not binding on any court”); People v. Moore, 243 Ill. App. 3d 583, 584, 611 N.E.2d 1246, 183 Ill. Dec. 598 (1993) (“the decision was unreported and of no precedential value”). “Unreported decisions have no precedential value, and this is even more true for decisions from foreign jurisdictions.” American Family Mutual Insurance Co. v. Plunkett, 2014 IL App (1st) 131631 ¶ 38, 383 Ill. Dec. 393, 14 N.E.3d 676; Burnette v. Stroger, 389 Ill. App. 3d 321, 329, 905 N.E.2d 939, 329 Ill. Dec. 101 (2009); West American Insurance Co. v. J.R. Construction Co., 334 Ill. App. 3d 75, 82, 777 N.E.2d 610, 267 Ill. Dec. 807 (2002) (a “foreign, unreported decision” is of no precedential value”). Specifically, with respect to unpublished federal cases, this court has held that they do not carry any authority before an Illinois court. Lyons v. Ryan, 324 Ill. App. 3d 1094, 1107 n.11, 756 N.E.2d 396, 258 Ill. Dec. 414 (2001) (“unreported federal court orders” are not “any kind of authority before an Illinois court”); Sompolski v. Miller, 239 Ill. App. 3d 1087, 1093, 608 N.E.2d 54, 180 Ill. Dec. 932 (1992) (“we decline” to follow “an unreported Federal district court decision”).

[*P72] V. No Prima Facie Case

[*P73] However, even if plaintiff did not waive her claims regarding summary judgment, [**33] plaintiff still could not prove a prima facie case without the allegedly defective snow tube. The facts in Shramek v. General Motors Corp., 69 Ill. App. 2d 72, 216 N.E.2d 244 (1966), cited by defendant, are similar to the present case. In Shramek, the plaintiff was injured when the automobile in which he was riding crashed after one of the tires suffered a blowout. Shramek, 69 Ill. App. 2d at 74. He filed both a negligence claim and a breach of implied warranty claim against the tire and auto manufacturers claiming a defect was in the tire at the time it left the control of the manufacturer or seller. Shramek, 69 Ill. App. 2d at 75. The tire, however, was never examined for a defect and could not be located. Shramek, 69 Ill. App. 2d at 78. The trial court granted the automobile and tire manufacturers’ motions for summary judgment, and this court affirmed. Shramek, 69 Ill. App. 2d at 77. The appellate court held that summary judgment was required because the record conclusively demonstrated that the plaintiff could not prove, either by direct or circumstantial evidence, that the accident was caused by a defective tire. Shramek, 69 Ill. App. 2d at 77. The court noted that the mere occurrence of a blowout does not establish a manufacturer’s negligence or that the tire was defective, since blowouts can be attributed to a myriad of causes. Shramek, 69 Ill. App. 2d at 78. The court stated:

“[A]side from a superficial inspection of the damaged car [**34] and tire after the accident by plaintiff and his cousin, the tire in question was never subjected to an examination which would reveal that the blowout was due to a pre-existing defect. Thus, without any examination of the tire designed to elicit the cause of the blowout and without the tire itself or any hope or expectation for its recovery, plaintiff could never prove, directly or inferentially, a case of negligence, breach of warranty or strict liability.” Shramek, 69 Ill. App. 2d at 78.

[*P74] The reasoning in Shramek has been cited with approval and applied in other cases (E.g., Scott v. Fruehauf Corp. 602 F. Supp. 207, 209 (S.D. Ill. 1985); Sanchez v. Firestone Tire & Rubber Co., 237 Ill. App. 3d 872, 874, 604 N.E.2d 948, 178 Ill. Dec. 425 (1992); Phillips v. U.S. Waco Corp., 163 Ill. App. 3d 410, 417, 516 N.E.2d 670, 114 Ill. Dec. 515 (1987) (discussing and applying Shramek)). In Scott, the plaintiff sued a tire rim manufacturer and distributor, alleging he was injured while working on a tire rim. Scott, 602 F. Supp. at 208. As in Shramek, the allegedly defective product was unavailable. Scott, 602 F. Supp. at 209. The court held that, because the plaintiff could not produce the rim, he “could never prove his case” and, therefore, summary judgment was proper. Scott, 602 F. Supp. at 209. The Scott case held this, even though there were photographs of the rim. Scott, 602 F. Supp. at 209. However, the court found that even photographs were insufficient because the rim had never been examined by a qualified expert and was never made available to the defendant. Scott, 602 F. Supp. at 209. In the case at [**35] bar, plaintiff does not even have photographs of the tube, and the tube was certainly never examined by an expert or made available to defendant. Thus, pursuant to the reasoning of both Shramek and Scott, summary judgment was warranted.

[*P75] Similarly, in Sanchez v. Firestone Tire & Rubber Co., 237 Ill. App. 3d 872, 872-73, 604 N.E.2d 948, 178 Ill. Dec. 425 (1992), the plaintiff brought a negligence and product liability action against defendant for improper installation of a tire and inner tube. The inner tube was unavailable and the plaintiff’s expert never examined the inner tube or took photographs of it. Sanchez, 237 Ill. App. 3d at 873. In affirming summary judgment, the appellate court held that the cause of the incident could only be left to speculation because the expert’s testimony indicated nothing more than a mere possibility that the inner tube was improperly installed. Sanchez, 237 Ill. App. 3d at 874; see also Scott, 602 F. Supp. at 209 (“the very fact that other factors could have caused the injury warranted granting of summary judgment motions since without the alleged[ly] defective product the plaintiff could never prove up his case”). Similarly, in the case at bar, without the tube, the cause of the incident could only be left to speculation.

[*P76] Lastly, in Phillips v. United States Waco Corp., 163 Ill. App. 3d 410, 417, 516 N.E.2d 670, 114 Ill. Dec. 515 (1987), the plaintiff brought a negligence and strict products liability claim against defendant for personal injuries he sustained [**36] when he fell from a scaffold manufactured by the defendant. As in Shramek, the plaintiff failed to produce the allegedly defective product involved in the accident or any photographs of it. Phillips, 163 Ill. App. 3d at 415. And as in Scott, the plaintiff failed to provide any expert testimony regarding the alleged defect in the product. Phillips, 163 Ill. App. 3d at 415. In affirming summary judgment, this court held that the plaintiff failed to present facts to support the elements of his products liability claims based in negligence and strict liability. Phillips, 163 Ill. App. 3d at 418. This court reasoned that, because the scaffold was never examined for the presence of preexisting defects, the plaintiff “could never prove, either by direct or circumstantial evidence, that the accident was caused by a defective scaffold, since he did not and could not produce the scaffold.” Phillips, 163 Ill. App. 3d at 418.

[*P77] Similar to the plaintiff in Phillips, plaintiff in this case did not and cannot produce the allegedly defective product involved in her accident. The subject snow tube was never retrieved or examined for defects. Plaintiff also has not produced any photographs of the snow tube itself or provided testimony by an eyewitness to the accident or its aftermath, other than plaintiff herself. Plaintiff testified [**37] that all of the photographs she took on the day of the accident were of different snow tubes in use at Villa Olivia and not of the tube involved in her accident. Plaintiff testified that the last time she saw the tube was when she left it with the Villa Olivia employees when she walked inside with the paramedic to report the accident. Plaintiff also testified that her basis for believing that defendant manufactured the tube in her accident was that she saw a different tube that had writing on it that said defendant’s name. She testified that a photograph of a snow tube used by her son showed a red colored tube, but did not indicate the manufacturer’s name on it. Without the snow tube itself or any examination of it, plaintiff cannot establish or raise a genuine issue of material fact that defendant was the manufacturer. Without the snow tube itself or any photographs of it, or an examination of the snow tube to determine if the accident was a result of a preexisting defect, plaintiff cannot prove a prima facie products liability case against defendant.

[*P78] Therefore, for the reasons stated above, we cannot find that the trial court erred in granting summary judgment in favor of defendant. [**38] Outboard Marine Corp., 154 Ill. 2d at 102 (discussing when summary judgment should be granted).

[*P79] CONCLUSION

[*P80] On appeal, plaintiff argues that the trial erred in granting summary judgment because there is a genuine issue of material fact as to whether defendant was the manufacturer of the snow tube that injured her. For the foregoing reasons, we conclude that plaintiff failed to present sufficient evidence to raise a genuine issue of material fact as to the manufacturer of the snow tube and thus the trial court did not err in granting summary judgment in favor of defendant.

[*P81] Affirmed.


Zip line accused of being common carrier which makes releases unenforceable. Issue still not decided, however, in all states common carriers cannot use a release as a defense.

Many ropes courses have determined that agreeing to be supervised by the state is the way to go. In Illinois, that supervision would have voided all defenses for a challenge course because they would have been classified as a common carrier. Common carriers’ have extremely limited defenses to claims.

Dodge v. Grafton Zipline Adventures, LLC, 2015 IL App (5th) 140124-U; 2015 Ill. App. Unpub. LEXIS 1584

State: Illinois, Appellate Court of Illinois, Fifth District

Plaintiff: April Dodge

Defendant: Grafton Zipline Adventures, LLC, and Michael Quinn

Plaintiff Claims: negligently designing and operating its course, intentionally or recklessly violated the safety regulations promulgated by the Illinois Department of Labor, and thereby engaged in willful and wanton misconduct. In count II, the plaintiff claimed that Quinn, a tour guide for Grafton Zipline, was negligent in instructing the plaintiff, in inspecting and maintaining the braking system, and in failing to prevent the plaintiff from colliding with the tree. The plaintiff also alleged willful and wanton misconduct against Quinn

Defendant Defenses: Release

Holding: Sent back to the trial court to determine if a zip line under Illinois law is a common carrier

Year: 2015

The facts are pretty normal for zip line lawsuits. The plaintiff while riding was unable to slow down or stop and hit the tree holding the platform. In this case it was the eighth line of multiple zip lines down the mountain.

The defendant filed a motion to dismiss based on a release signed by the plaintiff. The plaintiff argued that the release was barred because the zip line was a common carrier under Illinois law and as such “they cannot exempt themselves from liability for their own negligence.”

The trial court agreed with the plaintiff that a zip line was a common carrier. That analysis was based on the theory that:

…in that zip lines fell within the definition of amusement rides pursuant to the Illinois Carnival and Amusement Rides Safety Act (430 ILCS 85/2-2 (West 2012)) and were akin to merry-go-rounds or other amusement rides that had been held to be common carriers.

The defendants filed a motion for permissive interlocutory appeal which was denied by the appellate court. However the Illinois Supreme Court directed the appellate court to vacate (reverse) its order denying the appeal.

Analysis: making sense of the law based on these facts.

The court first looked at Illinois law on releases, calling them exculpatory clauses.

An exculpatory clause is a contractual provision that excuses the defaulting party’s liability. “Courts disfavor such agreements and construe them strictly against the benefitting party, particularly one who drafted the release.” “Nevertheless, contracting parties are free to ‘allocate the risk of negligence as they see fit, and exculpatory agreements do not violate public policy as a matter of law.'”

The analysis under Illinois law concerning releases is pretty standard. Although “disfavored” they are upheld.

Accordingly, if a valid exculpatory clause clearly applies, and in the absence of fraud or willful and wanton negligence, courts will enforce it unless “‘(1) it would be against a settled public policy of the State to do so, or (2) there is something in the social relationship of the parties militating against upholding the agreement.

Releases under Illinois law however are unenforceable when applied to common carriers as releases for common carriers create a violation of public policy.

Exculpatory agreements between the public and those charged with a duty of public service, such as those involving a common carrier, an innkeeper, a public warehouseman, or a public utility, have been held to be unenforceable as contrary to public policy.

The unenforceability of a release between a passenger and a common carrier is due to the relationship between the two.

Courts have alternatively recognized that exculpatory agreements between common carriers and passengers are unenforceable because of the special social relationship of a semipublic nature that permeates the transaction between the parties.

Arguments given for this are based on the fact the passenger pays for transportation from one location to another and during that transportation the passenger is totally at the control of the common carrier. The passenger cannot drive, inspect the track, road or path of travel, work on the engines or anything of that manner. The only thing the passenger can do is sit back and ride. The passenger has no control over their safety.

In this case, slowing or braking was under the control of the plaintiff.

A common carrier is held to the highest duty of care when transporting passengers.

Common carriers are charged with the highest duty of care when transporting passengers because passengers must wholly rely upon a common carrier’s proper maintenance and safe operation of its equipment during passage.

In Illinois common carriers have been identified as: “owners of buildings with elevators; a scenic railway at an amusement resort, where “steep inclines, sharp curves, and great speed necessarily are sources of peril”; a merry-go-round; a taxicab; and a Ferris wheel.” Here, as in most states, the safety of the passenger is totally under the control of the owner of the ride. What is different is normally a common carrier is taking people from once location to another, not around in circle or down a mountain you just ascended.

The court also examined and compared common carriers with private carriers.

Further, courts have distinguished between a common and a private carrier. “A common carrier, generally, is a carrier hired to carry any person who applies for passage as long as there is room available and there is no legal excuse for refusing.” “Ordinarily, a common carrier must accept as a passenger any person offering himself or herself for passage at the proper time and in the proper manner and who is able and willing to pay the fare.”

Here again, a common carrier is easily identified as a train, bus service or airline.

A common carrier holds himself out as such by advertising or by actually engaging in the business and pursuing the occupation as an employment. The test to distinguish a common carrier from a private carrier is whether the carrier serves all of the public alike.

The distinction between private carrier and a common carrier is gray in Illinois and the court spent time reviewing the issues. If the passenger actively can participate in the transportation and contributed to his or her own safety, the carrier is not a common carrier. In Illinois not being a common carrier does not necessarily mean a private person is a Private Carrier.

Private carriers as ordinarily defined are those who, without being engaged in such business as a public employment, undertake to deliver goods or passengers in a particular case for hire or reward.” A private carrier makes no public profession to carry all who apply for transport, transports only by special agreement, and is not bound to serve every person who may apply.

Normally the distinction is made by the courts based on whether or not the carrier is a business, in the business of moving people from one place to another for a fee. Trains, busses, airlines are common carriers. Here the definition is confused because of the existence in Illinois of a broad definition of private carrier that is to say the least confusing.

Whether a particular transportation service is undertaken in the capacity of a private or of a common carrier must be determined by reference to the character of the business actually carried on by the carrier, and also by the nature of the service to be performed in the particular instance.”

It is this distinction that the court found to be at issue in this case, whether a zip line is a common carrier or a private carrier.

The appellate court sent the case back to the trial court to determine if a zip line under Illinois law is a private carrier or a common carrier. If the trial court, which has ruled once already that a zip line, is a common carrier, rules the zip line is a common carrier, the sole issue at trial will be damages. How large will the check be that the zip line writes the plaintiff?

So Now What?

Readily accepting government regulation may provide a degree of relief in that you pass the safety inspection you are good for the season. However, once you are under that regulatory umbrella, you may also be classified by the regulations, statutes or the courts in a way you did not anticipate. You may lose defenses available to you prior to regulation.

This is similar to having a statute passed which provides liability protection for you. However this can be a two edge sword. Many state supreme courts have held that once a statute is enacted to provide protection, the only protection available is from the statute.

Many states create special categories for regulated industries. Here, falling under the regulation of the state classified the zip line as a common carrier.

The good news is the appellate court did not see the zip line as immediately qualifying as being controlled by the statute. Statutes usually define what they cover and the court did not even investigate the definition in this case.

However the court did look into whether or not a zip line was a common carrier. If the trial court finds that it is, there will be no end to the claims against zip lines in Illinois. Looked at another way, if the trial court determines a zip line is a common carrier, there will be an end to zip lines.

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Dodge v. Grafton Zipline Adventures, LLC, 2015 IL App (5th) 140124-U; 2015 Ill. App. Unpub. LEXIS 1584

Dodge v. Grafton Zipline Adventures, LLC, 2015 IL App (5th) 140124-U; 2015 Ill. App. Unpub. LEXIS 1584

April Dodge, Plaintiff-Respondent, v. Grafton Zipline Adventures, LLC, and Michael Quinn, Defendants-Petitioners.

NO. 5-14-0124

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

2015 IL App (5th) 140124-U; 2015 Ill. App. Unpub. LEXIS 1584

July 14, 2015, Decision Filed

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).

PRIOR HISTORY: [**1] Appeal from the Circuit Court of Madison County. No. 13-L-238. Honorable Barbara L. Crowder, Judge, Presiding.

Dodge v. Grafton Zipline Adventures, LLC, 2014 Ill. LEXIS 1270, 387 Ill. Dec. 513, 22 N.E.3d 1166 (Ill., 2014)

JUDGES: JUSTICE SCHWARM delivered the judgment of the court. Justices Welch and Moore concurred in the judgment.

OPINION BY: SCHWARM

OPINION

ORDER

[*P1] Held: Appellate court declines to answer the certified question and remands to the trial court to hear evidence to determine whether exculpatory agreement is between the public and one charged with a duty of public service, i.e., a common carrier, and therefore unenforceable.

[*P2] The plaintiff, April Dodge, filed the instant suit seeking recovery for injuries she sustained while riding on an aerial zip line course designed and operated by defendant Grafton Zipline Adventures, LLC (Grafton Zipline), by which defendant Michael Quinn is employed. The circuit court certified a question after denying the defendants’ motion to dismiss.

[*P3] BACKGROUND

[*P4] In her first amended complaint filed on May 3, 2013, the plaintiff alleged that Grafton Zipline operated an aerial zip line course in which paying guests, riding from one elevated platform to another, were guided over a series of suspended wire cable runs. The plaintiff alleged that [**2] “guests [we]re outfitted with a harness and pulley system which attache[d] to the suspended cables and which in theory allow[ed] them to control their speed by braking on descents.” The plaintiff alleged that on the eighth run of the zip line course, the plaintiff’s braking system failed to slow her descent, she approached the landing platform at a high rate of speed, and she violently struck the trunk of the tree on which the landing platform was mounted, fracturing her right heel bone.

[*P5] In count I, the plaintiff alleged that Grafton Zipline was a common carrier that breached its duty of care by negligently designing and operating its course, intentionally or recklessly violated the safety regulations promulgated by the Illinois Department of Labor (56 Ill. Adm. Code 6000.350 (2013)), and thereby engaged in willful and wanton misconduct. In count II, the plaintiff claimed that Quinn, a tour guide for Grafton Zipline, was negligent in instructing the plaintiff, in inspecting and maintaining the braking system, and in failing to prevent the plaintiff from colliding with the tree. The plaintiff also alleged willful and wanton misconduct against Quinn.

[*P6] On June 7, 2013, pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2012)), the defendants [**3] filed a motion to dismiss the plaintiff’s first amended complaint on the basis that the plaintiff’s claims were barred by an exculpatory agreement signed by the plaintiff prior to her participation in the zip line activity. In the agreement, the plaintiff agreed to release the defendants from liability for injury, disability, death, or loss or damage to persons or property, whether caused by negligence or otherwise.

[*P7] In the plaintiff’s memorandum of law in opposition to the defendants’ motion to dismiss, the plaintiff asserted that the defendants’ exculpatory agreement was unenforceable. The plaintiff asserted that zip line courses are common carriers under Illinois law, and as such, they cannot exempt themselves from liability for their own negligence.

[*P8] On November 1, 2013, the circuit court held that exculpatory clauses were unenforceable against plaintiffs injured by the ordinary negligence of a common carrier. The circuit court noted that when parties disagree as to whether a defendant is a common carrier, the question becomes a controverted question of fact to be determined after considering evidence. However, the circuit court found that the pleadings before it alleged sufficient [**4] facts to establish that the defendants were common carriers, in that zip lines fell within the definition of amusement rides pursuant to the Illinois Carnival and Amusement Rides Safety Act (430 ILCS 85/2-2 (West 2012)) and were akin to merry-gorounds or other amusement rides that had been held to be common carriers. The circuit court thereby denied the defendants’ section 2-619 motion to dismiss based on the exculpatory clause but also stated that “questions of fact remain as to whether [d]efendants *** are within the definition of common carriers.”

[*P9] On March 6, 2014, the circuit court, pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010), entered its order certifying the following question for appeal:

“Is an exculpatory agreement signed by a participant on a zip[ ]line course, that released the zip[ ]line operator and its employees from their own negligence, enforceable to bar the participant’s suit for negligence, or is the zip[ ]line course a common carrier such that the exculpatory agreement is unenforceable?”

[*P10] On March 20, 2014, the defendants filed an application for permissive interlocutory appeal, which we denied on April 21, 2014. On September 24, 2014, however, the Illinois Supreme Court directed this court to vacate its judgment denying [**5] the defendants’ application for leave to appeal and directed us to grant such application. Dodge v. Grafton Zipline Adventures, LLC, 387 Ill. Dec. 513, 22 N.E.3d 1166 (Ill. 2014). On November 5, 2014, per the supreme court’s supervisory order and pursuant to Illinois Supreme Court Rule 308, we thereafter allowed the defendants’ permissive interlocutory appeal.

[*P11] ANALYSIS

[*P12] On appeal, the defendants argue that the exculpatory agreement signed by the plaintiff bars her negligence claims and that the exculpatory agreement is enforceable because Grafton Zipline is not a common carrier. The plaintiff counters that the circuit court’s certified question is not ripe for determination because there are unresolved questions of fact regarding whether Grafton Zipline is a common carrier. We agree with the plaintiff.

[*P13] “The scope of review in an interlocutory appeal brought under [Illinois Supreme Court] Rule 308 is limited to the certified question.” Spears v. Association of Illinois Electric Cooperatives, 2013 IL App (4th) 120289, ¶ 15, 986 N.E.2d 216, 369 Ill. Dec. 267. “A reviewing court should only answer a certified question if it asks a question of law and [should] decline to answer where the ultimate disposition ‘will depend on the resolution of a host of factual predicates.’ [Citations.]” Id. “A certified question pursuant to Rule 308 is reviewed de novo.” Id.

[*P14] An exculpatory [**6] clause is a contractual provision that excuses the defaulting party’s liability. See Black’s Law Dictionary 648 (9th ed. 2009) (defining an exculpatory clause as “a contractual provision relieving a party from liability resulting from a negligent or wrongful act”); McKinney v. Castleman, 2012 IL App (4th) 110098, ¶ 14, 968 N.E.2d 185, 360 Ill. Dec. 106 (exculpatory agreement involves express assumption of risk wherein one party consents to relieve another of a particular obligation). “Courts disfavor such agreements and construe them strictly against the benefitting party, particularly one who drafted the release.” McKinney, 2012 IL App (4th) 110098, ¶ 14. “Nevertheless, contracting parties are free to ‘allocate the risk of negligence as they see fit, and exculpatory agreements do not violate public policy as a matter of law.'” Id. (quoting Evans v. Lima Lima Flight Team, Inc., 373 Ill. App. 3d 407, 412, 869 N.E.2d 195, 311 Ill. Dec. 521 (2007)).

[*P15] Accordingly, if a valid exculpatory clause clearly applies, and in the absence of fraud or willful and wanton negligence, courts will enforce it unless “‘(1) it would be against a settled public policy of the State to do so, or (2) there is something in the social relationship of the parties militating against upholding the agreement.'” McKinney, 2012 IL App (4th) 110098, ¶ 14 (quoting Harris v. Walker, 119 Ill. 2d 542, 548, 519 N.E.2d 917, 116 Ill. Dec. 702 (1988)). Exculpatory agreements between the public and those charged with a duty of public service, such as those involving a common [**7] carrier, an innkeeper, a public warehouseman, or a public utility, have been held to be unenforceable as contrary to public policy. McKinney, 2012 IL App (4th) 110098, ¶ 14; Johnson v. Salvation Army, 2011 IL App (1st) 103323, ¶ 19, 957 N.E.2d 485, 354 Ill. Dec. 169; White v. Village of Homewood, 256 Ill. App. 3d 354, 358-59, 628 N.E.2d 616, 195 Ill. Dec. 152 (1993). Courts have alternatively recognized that exculpatory agreements between common carriers and passengers are unenforceable because of the special social relationship of a semipublic nature that permeates the transaction between the parties. See McClure Engineering Associates, Inc. v. Reuben Donnelley Corp., 101 Ill. App. 3d 1109, 1111, 428 N.E.2d 1151, 57 Ill. Dec. 471 (1981); First Financial Insurance Co. v. Purolator Security, Inc., 69 Ill. App. 3d 413, 419, 388 N.E.2d 17, 26 Ill. Dec. 393 (1979) (“when an exculpatory provision is found invalid because of a special relationship between the parties, it is the semipublic nature of the party seeking to exculpate itself from liability that allows the court to invalidate the provision”).

[*P16] Thus, any contract by which a common carrier of goods or passengers undertakes to relieve itself from liability for loss or damage arising from its negligence or the negligence of its servants is void. Checkley v. Illinois Central R.R. Co., 257 Ill. 491, 494, 100 N.E. 942 (1913); Simmons v. Columbus Venetian Stevens Buildings, Inc., 20 Ill. App. 2d 1, 17, 155 N.E.2d 372 (1958); Restatement (Second) of Torts § 496B cmt. g (1965) (“Where the defendant is a common carrier ***, or is otherwise charged with a duty of public service, and the agreement to assume the risk relates to the defendant’s performance of any part of that duty, it is well settled that it will not be given effect.”). “Having undertaken the duty to the public, which includes the obligation of reasonable care, [**8] [common carriers] are not free to rid themselves of their public obligation by contract, or by any other agreement.” Restatement (Second) of Torts § 496B cmt. g (1965).

[*P17] An exculpatory contract, wherein a common carrier of goods or passengers undertakes to exempt itself from liability for negligence “if sustained, would relieve the carrier from its essential and important duties to the public growing out of the character of its employment, and tend to defeat the foundation principle on which the law of common carriers is based; that is, the securing of the highest care and diligence in the performance of the important duties due to the public.” Checkley, 257 Ill. at 494; see also Simmons, 20 Ill. App. 2d at 17. “The heightened status afforded to common carrier[ ] *** relationships is based on the protection of the public ***.” Zerjal v. Daech & Bauer Construction, Inc., 405 Ill. App. 3d 907, 912, 939 N.E.2d 1067, 345 Ill. Dec. 887 (2010); see also Simmons, 20 Ill. App. 2d at 17 (“It has been said if there is any general reason for the rule to be deduced from the passenger cases, it is that the public service consideration alone prevents contractual limitation of liability for negligence.”).

[*P18] In holding that a common carrier has a duty to exercise the highest degree of care consistent with the practical operation of its conveyances to protect its passengers (Rotheli v. Chicago Transit Authority, 7 Ill. 2d 172, 177-78, 130 N.E.2d 172 (1955); Browne v. Chicago Transit Authority, 19 Ill. App. 3d 914, 917, 312 N.E.2d 287 (1974)), courts have considered the “‘unique control [a common [**9] carrier] possesses over its passengers’ safety.'” Krywin v. Chicago Transit Authority, 391 Ill. App. 3d 663, 666, 909 N.E.2d 887, 330 Ill. Dec. 865 (2009) (quoting Sheffer v. Springfield Airport Authority, 261 Ill. App. 3d 151, 154, 632 N.E.2d 1069, 198 Ill. Dec. 458 (1994)); see also O’Callaghan v. Dellwood Park Co., 242 Ill. 336, 345, 89 N.E. 1005 (1909) (“If the injury of a passenger is caused by apparatus wholly under the control of a carrier and furnished and managed by it, and the accident is of such a character that it would not ordinarily occur if due care is used, the law raises a presumption of negligence.”). “Common carriers are charged with the highest duty of care when transporting passengers because passengers must wholly rely upon a common carrier’s proper maintenance and safe operation of its equipment during passage.” Sheffer, 261 Ill. App. 3d at 156. “[C]ommon carriers are responsible for their patrons’ physical safety for which there is no second chance if a mistake should occur.” Zerjal, 405 Ill. App. 3d at 912.

[*P19] In determining whether a defendant is a common carrier that owes the highest degree of care in transporting its passengers, the courts have characterized the following as common carriers: owners of buildings with elevators (Rotheli, 7 Ill. 2d at 177); a scenic railway at an amusement resort, where “steep inclines, sharp curves, and great speed necessarily are sources of peril” (O’Callaghan, 242 Ill. at 344); a merry-go-round (Arndt v. Riverview Park Co., 259 Ill. App. 210, 216-17 (1930)); a taxicab (Metz v. Yellow Cab Co., 248 Ill. App. 609, 612 (1928)); and a Ferris wheel (Pajak v. Mamsch, 338 Ill. App. 337, 341, 87 N.E.2d 147 (1949)).

[*P20] In finding that an escalator was not a common carrier, the Illinois Supreme Court in Tolman found [**10] it significant that a person on an escalator may actively participate in the transportation in a manner similar to the use of a stairway and may contribute to his own safety. Tolman v. Wieboldt Stores, Inc., 38 Ill. 2d 519, 526, 233 N.E.2d 33 (1967). The court noted that the role of a passenger on a train, bus, or elevator is a passive one, and ordinarily such a passenger cannot exercise any control over his own safety. Id. at 525. The court further held that the rule as to the higher duty one owning and operating an elevator owes to a passenger riding in same, who is injured through some defect in its operating mechanism, is predicated upon the fact that a person riding in an elevator cannot possibly know or show, if such elevator gets out of control, what caused it to do so. Id. at 524-25. The court noted that because the elevator owner was in sole control of the elevator and the machinery used in its operation, an inference of negligence on the part of said owner arose out of the circumstances. Id.; see also Lombardo v. Reliance Elevator Co., 315 Ill. App. 3d 111, 125, 733 N.E.2d 874, 248 Ill. Dec. 199 (2000) (because bank had full control of premises, it had the duties of common carrier owed to the plaintiff who suffered injuries when the lift he was riding suddenly fell); Carson v. Weston Hotel Corp., 351 Ill. App. 523, 532, 115 N.E.2d 800 (1953) (lessee in full control of the premises had the duties of a common carrier of elevator [**11] passengers).

[*P21] While proper solicitude for human safety requires a carrier of passengers not to diminish its liability to them, the relative bargaining power of the parties is also a factor. Simmons, 20 Ill. App. 2d at 17. In Hamer v. City Segway Tours of Chicago, LLC, 402 Ill. App. 3d 42, 43-44, 930 N.E.2d 578, 341 Ill. Dec. 368 (2010), the plaintiff sought to recover for injuries she suffered on a tour run where she rode a segway onto a small grassy hill, and it threw her off. The plaintiff signed a release before participating in the tour. Id. The plaintiff argued, however, that her social relationship with the defendant and its tour guide rendered the release unenforceable. Id. at 46. The court concluded, without analysis, that the defendant was not a common carrier. Id. Finding also that that there was no disparity of bargaining power because the plaintiff simply could have refused to join the tour if she had disagreed with the exculpatory clause, the court held that the exculpatory language of the release was enforceable. Id.

[*P22] Further, courts have distinguished between a common and a private carrier. “A common carrier, generally, is a carrier hired to carry any person who applies for passage as long as there is room available and there is no legal excuse for refusing.” Long v. Illinois Power Co., 187 Ill. App. 3d 614, 628, 543 N.E.2d 525, 135 Ill. Dec. 142 (1989). “Ordinarily, a common carrier must accept as a passenger [**12] any person offering himself or herself for passage at the proper time and in the proper manner and who is able and willing to pay the fare.” Id. “[A] common carrier may be liable for an unexcused refusal to carry all who apply.” Doe v. Rockdale School District No. 84, 287 Ill. App. 3d 791, 794, 679 N.E.2d 771, 223 Ill. Dec. 320 (1997). A common carrier is “obligated by law to undertake the charge of transportation, which none but a common carrier, without a special agreement, is.” Rathbun v. Ocean Accident & Guarantee Corp., 299 Ill. 562, 566, 132 N.E. 754 (1921).

[*P23] A common carrier holds himself out as such by advertising or by actually engaging in the business and pursuing the occupation as an employment. Id. at 567. The test to distinguish a common carrier from a private carrier is whether the carrier serves all of the public alike. Green v. Carlinville Community Unit School District No. 1, 381 Ill. App. 3d 207, 211, 887 N.E.2d 451, 320 Ill. Dec. 307 (2008); Illinois Highway Transportation Co. v. Hantel, 323 Ill. App. 364, 375, 55 N.E.2d 710 (1944). Again, common carriers necessarily have control and regulation of the passengers’ conduct and of the operation of the carriage before they can be held to the extraordinary liability of common carriers to such passengers. Rathbun, 299 Ill. at 567 (evidence that deceased contracted car by private contract and had control of car and driver revealed defendant was not common carrier but was liable only as private carrier for ordinary negligence).

[*P24] “Private carriers as ordinarily defined are those who, without being engaged in such business as a public employment, undertake [**13] to deliver goods or passengers in a particular case for hire or reward.” Rathbun, 299 Ill. at 566. A private carrier makes no public profession to carry all who apply for transport, transports only by special agreement, and is not bound to serve every person who may apply. Green, 381 Ill. App. 3d at 211; Rockdale School District No. 84, 287 Ill. App. 3d at 795.

[*P25] “Whether a particular transportation service is undertaken in the capacity of a private or of a common carrier must be determined by reference to the character of the business actually carried on by the carrier, and also by the nature of the service to be performed in the particular instance.” (Internal quotation marks omitted.) Long, 187 Ill. App. 3d at 630. When a plaintiff affirms and the defendant denies that the defendant is operating as a common carrier, the question becomes a controverted question of fact to be determined by a consideration of the evidence by the trial court. Rathbun, 299 Ill. at 566; Bare v. American Forwarding Co., 242 Ill. 298, 299, 89 N.E. 1021 (1909); Hantel, 323 Ill. App. at 374; Beatrice Creamery Co. v. Fisher, 291 Ill. App. 495, 497, 10 N.E.2d 220 (1937).

[*P26] Accordingly, we find that whether Grafton Zipline is a common carrier is a question of fact, “dependent upon the nature of the business in which [it is] engaged, and [is] to be determined from a consideration of all of the evidence.” Beatrice Creamery Co., 291 Ill. App. at 497. In its order, the circuit court noted that questions of fact remained regarding whether Grafton Zipline is a common carrier. [**14] We agree and find this so with regard to the certified question. To determine whether the exculpatory clause is unenforceable on the basis that Grafton Zipline is a common carrier “charged with a duty of public service” the court must necessarily determine disputed factual issues. The court must determine whether Grafton Zipline had control and regulation of the passengers’ conduct and of the operation of the carriage (see Rathbun, 299 Ill. at 567 (evidence that deceased contracted car by private contract and had control of car and driver revealed defendant was not common carrier but was liable only as private carrier for ordinary negligence)); whether the plaintiff actively participated in the transportation and contributed to her own safety (Tolman, 38 Ill. 2d at 525-26 (because escalator allowed the plaintiff to actively participate in the transportation and allowed control over safety, escalator not common carrier); whether there was a disparity of bargaining power between the parties (see Hamer, 402 Ill. App. 3d at 43-44 (exculpatory clause enforceable where plaintiff could simply have refused to join the segway tour)); and whether Grafton Zipline made a profession to carry all who applied for carriage (see Browne v. SCR Medical Transportation Services, Inc., 356 Ill. App. 3d 642, 647, 826 N.E.2d 1030, 292 Ill. Dec. 594 (2005) (because medical transport van served only those individuals [**15] who met its eligibility requirements, could decline to serve anyone based on numerous factors such as location and availability of medical transport vans, made no profession to carry all who apply for carriage, and was not bound to serve every person who may apply, medical transport van was not a common carrier)). To answer the certified question before the circuit court has heard evidence on these matters would be premature. Thus, we decline to answer the certified question, and we remand the cause for further proceedings consistent with this order. See Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 477, 693 N.E.2d 358, 230 Ill. Dec. 229 (1998).

[*P27] CONCLUSION

[*P28] For the reasons stated, we decline to answer the certified question as its ultimate disposition depends on the resolution of multiple factual predicates. We remand the cause to the Madison County circuit court for further proceedings.

[*P29] Certified question not answered; cause remanded.


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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