Nos. 2--96--0695, 2--96--0916 cons.
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
MARY JANE JOST, Adm'r of the ) Appeal from the Circuit Court
Estate of Susan Schultz, ) of Lake County.
Deceased, and W.A. JOST, Father )
and Surviving Heir of Susan )
Schultz, Deceased, )
)
Plaintiffs-Appellants, )
)
v. ) No. 95--L--1612
)
DOUGLAS G. BAILEY; SHARON )
CRANSTON; STEVEN O. PFOSER; )
RICHARD A. SHEEHAN, d/b/a )
Fatman Inn; NORTHEASTERN )
ILLINOIS ASSOCIATION OF )
SNOWMOBILE CLUBS, )
)
Defendants )
)
(The County of Lake and Lake )
County Forest Preserve ) Honorable
District, Defendants- ) Stephen E. Walter,
Appellees). ) Judge, Presiding.
PRESIDING JUSTICE GEIGER delivered the opinion of the court:
The plaintiffs, Mary Jane Jost, as administrator of the estate
of Susan Schultz, deceased, and W.A. Jost, as father and surviving
heir of the deceased, appeal from the judgment of the circuit court
of Lake County dismissing their wrongful death and survival actions
against the defendants, the County of Lake, Illinois (the County)
and the Lake County Forest Preserve District (the Forest Preserve).
The plaintiffs' second amended complaint alleged that the County
and the Forest Preserve were negligent and wilful and wanton in
their approval of a dangerous and unsafe snowmobile trail. On
April 23, 1996, the trial court dismissed the action on the basis
that the County and the Forest Preserve were immunized by section
5--1(N) of the Snowmobile Registration and Safety Act (the
Snowmobile Act) (625 ILCS 40/5--1(N) (West 1994)) and section 3--
109 of the Local Governmental and Governmental Employees Tort
Immunity Act (the Tort Immunity Act) (745 ILCS 10/3--109 (West
1994)). We affirm and remand the cause.
Prior to a discussion of the facts of this case, we note that
the County has filed a motion to strike certain portions of the
plaintiffs' brief pursuant to Supreme Court Rules 361 (155 Ill. 2d
R. 361) and 341(e)(6) (155 Ill. 2d R. 341(e)(6)). The County
argues that the plaintiffs' statement of facts contains references
to allegations that were not considered by the trial court in
ruling on the motions to dismiss the second amended complaint.
Contrary to the County's assertions, however, our review of the
plaintiffs' brief reveals that all of the allegations contained in
the statement of facts were also alleged in the second amended
complaint. Therefore, the County's motion to strike is denied.
The plaintiffs' second amended complaint contains the
following allegations: On January 22, 1995, the plaintiffs'
decedent was riding as a passenger on a snowmobile operated by
Stephen Pfoser. At approximately 10 p.m., the decedent and Pfoser
were crossing over the Des Plaines River on the Russell Road bridge
in Newport Township, Lake County. This particular bridge is owned
and maintained by the County. Pfoser was operating his snowmobile
in a westerly direction along the south shoulder of the bridge,
traveling against the oncoming motor vehicle traffic.
As Pfoser and the decedent crossed the bridge, their
snowmobile was struck by an eastbound motor vehicle being operated
by Douglas Bailey and owned by Sharon Cranston. Prior to the
collision, Bailey had consumed alcoholic beverages at the "Fatman
Inn," which is a dramshop owned and operated by Richard Sheehan.
The collision occurred when Bailey drove his vehicle out of the
eastbound lane and onto the paved shoulder located on the south
side of the bridge. The decedent died as a result of the injuries
she suffered during the collision.
At the time of the accident, Pfoser was following a snowmobile
trail that had been marked by the Northeastern Illinois Association
of Snowmobile Clubs (NIASC) and approved by the County and the
Forest Preserve. NIASC marked the trail by placing signs and
directional indicators on the Forest Preserve property adjacent to
the bridge. These signs and markings directed westbound
snowmobiles to cross the bridge on the wrong side of the road,
against oncoming traffic. Such a route is expressly prohibited
under the safety provisions of the Snowmobile Act. See 625 ILCS
40/5--2(B) (West 1994).
On February 24, 1995, the plaintiffs filed a nine-count
wrongful death and survival action, naming Bailey, Cranston,
Pfoser, and Sheehan as defendants. On March 2, 1995, the
plaintiffs filed an amended complaint which added the County and
NIASC as defendants. On December 19, 1995, the plaintiffs filed a
second amended complaint which added the Forest Preserve as a
defendant.
The only counts at issue on appeal are those directed against
the County and the Forest Preserve. These counts allege negligence
and wilful and wanton misconduct on the part of the County and the
Forest Preserve in approving the NIASC trail. The plaintiffs
contend that the defendants knew or should have known that
directing snowmobiles to travel against motor vehicle traffic would
result in serious bodily harm or death. The plaintiffs also allege
that the defendants breached their duty of care to the plaintiffs
by permitting the NIASC trail to exist on their property for two
years, even though the trail route was in violation of the safety
provisions of the Snowmobile Act (625 ILCS 40/5--2(B) (West 1994)).
On January 25, 1996, and February 26, 1996, respectively, the
County and the Forest Preserve filed motions to dismiss the second
amended complaint pursuant to sections 2--615 and 2--619 of the
Code of Civil Procedure (735 ILCS 5/2--615, 2--619 (West 1994)).
In their motions, the defendants argued, inter alia: (1) that,
pursuant to section 5--1(N) of the Snowmobile Act, they owed no
duty to keep their property safe for snowmobiles; (2) that,
pursuant to section 3--109(a) of the Tort Immunity Act, they owed
no duty to individuals participating in an ultrahazardous activity;
(3) that, pursuant to section 2--103 of the Tort Immunity Act (745
ILCS 10/2--103 (West 1994), they could not be held liable for the
approval of the trail; (4) that their conduct was not the proximate
cause of the decedent's injuries and death; and (5) that the
plaintiffs did not allege facts sufficient to support an action for
wilful and wanton misconduct.
In response to the motions, the plaintiffs argued: (1) that
once the County and the Forest Preserve voluntarily undertook to
approve the trail, they assumed the duty to act with reasonable
care; (2) that the immunities provided under the Tort Immunity Act
do not apply in instances where the governmental entity created the
hazard that caused the injury; (3) that snowmobiling could not be
considered an "ultrahazardous activity"; (4) that the immunity
provisions of the Snowmobile Act are unconstitutional; and (4)
that, pursuant to section 9--103 of the Tort Immunity Act (745 ILCS
10/9--103 (West 1994), the Forest Preserve had waived all
immunities by requiring NIASC to procure an insurance liability
policy which named it as an additional insured.
On April 23, 1996, following a hearing on the motions, the
trial court entered the following findings:
"a. Plaintiffs *** have failed to sufficiently allege facts
to support their claim of a duty owed them by the County, [or]
the Forest Preserve, *** whether premised on voluntary
undertaking or otherwise.
b. The allegations of the Plaintiffs *** are insufficient to
support a claim of willful and wanton conduct by the County or
by the Forest Preserve.
c. There has been no waiver of immunity by the Forest
Preserve *** under section 2--103 of the Tort Immunity Act.
d. Section 5--1(N) of the Snowmobile Act provides an
absolute immunity to the County and the Forest Preserve.
e. Section 5--1(N) of the Snowmobile Act is constitutional.
f. As a matter of law, the alleged conduct of the County and
the Forest Preserve *** does not constitute the proximate
cause of the plaintiff's injuries as the condition allegedly
created by those defendants was superseded by the criminal
conduct of a third party."
The trial court then granted both motions to dismiss pursuant to
section 5--1(N) of the Snowmobile Act and section 3--109 of the Tort
Immunity Act. On May 16, 1996, the trial court entered an order,
pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)),
making its order dismissing the County final and appealable. On
June 28, 1996, the trial court entered a similar order in regard to
its dismissal of the Forest Preserve. The plaintiffs filed timely
notices of appeal as to both rulings. On August 16, 1996, this
court entered an order consolidating the appeals.
The standards regarding our review of an order which grants a
section 2--615 motion (735 ILCS 5/2--615 (West 1994)) or a section
2--619 motion (735 ILCS 2--619 (West 1994)) are well established.
When considering the sufficiency of a complaint under section 2--
615, the reviewing court must determine whether the allegations in
the complaint, when construed in the light most favorable to the
plaintiff, are sufficient to set forth a cause of action upon which
relief may be granted. Burdinie v. Village of Glendale Heights, 139
Ill. 2d 501, 505 (1990). When reviewing a section 2--619 dismissal,
the question on appeal is whether the existence of a genuine issue
of material fact should have precluded the dismissal, or absent such
an issue of fact, whether dismissal is proper as a matter of law.
Moon v. Smith, 276 Ill. App. 3d 958, 962 (1995).
Although the trial court granted the defendants' motions to
dismiss on several grounds, we believe that section 5--1(N) of the
Snowmobile Act controls our disposition on appeal. Section 5--1(N)
provides as follows:
"N. Notwithstanding any other law or Section of this Act
to the contrary, the State and any political subdivision or
municipality thereof owes no duty of care to keep the premises
safe for entry or use by others for snowmobiling or to guard
against or give warnings of any condition, use, structure or
activity on property in which the State and any political
subdivision or municipality thereof has any interest." 625
ILCS 40/5--1(N) (West 1994).
We are aware of no Illinois court that has considered the meaning
and effect of this particular section of the Snowmobile Act. The
County and the Forest Preserve argue that the plain language of
this section provides them absolute immunity from any suit arising
from a snowmobile injury occurring on their property, including
suits alleging wilful and wanton misconduct.
The primary rule of statutory construction is to ascertain
and give effect to the intent of the legislature. Johnson v.
Mers, 279 Ill. App. 3d 372, 381 (1996). We must determine this
intent from the language of the statute, and the statute must be
evaluated as a whole. Payne v. Lake Forest Community High School
District 115, 268 Ill. App. 3d 783, 785 (1994). If the language
of the statute is clear, the court will give it effect without
turning to other statutory construction aids. Payne, 268 Ill.
App. 3d at 785.
The plain language of section 5--1(N) appears to provide
absolute immunity to governmental entities, as it does not contain
any exceptions to immunity for voluntary undertakings or wilful and
wanton misconduct. A review of the Snowmobile Act reveals that,
when the General Assembly intended to create an exception to the
immunities afforded, it specifically expressed that intent with
language stating the particular conduct to be excepted from
immunity. For example, in section 5--1(I) of the Snowmobile Act,
the General Assembly provided:
"I. Notwithstanding any other law to the contrary, an
owner, lessee, or occupant of premises owes no duty of care to
keep the premises safe for entry or use by others for
snowmobiling, or to give warning of any condition, use,
structure or activity on such premises. *** Nothing in this
section limits in any way liability which otherwise exists for
willful or malicious failure to guard or warn against a
dangerous condition, use, structure, or activity." (Emphasis
added.) 625 ILCS 40/5--1(I) (West 1994).
The absence of language excepting voluntary undertakings or wilful
and wanton misconduct from immunity in section 5--1(N), where such
language is contained in other sections of the same act,
demonstrates the General Assembly's intention that there be no
exceptions to the immunity provided by section 5--1(N). See Carter
v. City of Elmwood, 162 Ill. App. 3d 235, 237 (1987). We also note
that the plaintiffs concede in their appellate brief that the
language of section 5--1(N) appears to grant absolute immunity in
all circumstances.
Furthermore, this conclusion is in harmony with the manner in
which this court construed the immunity provisions contained in the
Tort Immunity Act. We have consistently held that the immunities
provided by the Tort Immunity Act are absolute unless the
legislature provided language which expressly limited the scope of
the immunity. See Johnson v. Mers, 279 Ill. App. 3d 372, 381
(1996) (interpreting 745 ILCS 10/2--201 (West 1992)); Payne v. Lake
Forest Community High School District 115, 268 Ill. App. 3d 783,
787 (1994) (interpreting 745 ILCS 10/3--108(a) (West 1992)); Scott
v. Rockford Park District, 263 Ill. App. 3d 853, 856-57 (1994)
(interpreting 745 ILCS 10/3--107(a) (West 1992)). We therefore
conclude that section 5--1(N) of the Snowmobile Act completely
immunizes the County and the Forest Preserve from the allegations
contained in the plaintiffs' second amended complaint.
Additionally, we note that, even if the defendants were not
immunized under the Snowmobile Act, the plaintiffs' allegations
could still not withstand dismissal. We agree with the trial court
that the alleged "approval" of the NIASC trail, standing alone,
would not amount to the sort of conduct necessary to establish a
voluntary undertaking or wilful and wanton misconduct. See
generally Cwik v. Forest Preserve District of Cook County, 131 Ill.
App. 3d 1097, 1099 (1985); Lerma v. Rockford Blacktop Construction
Co., 247 Ill. App. 3d 567, 572-73 (1993). Furthermore, pursuant to
section 2--103 of the Tort Immunity Act (745 ILCS 10/2--103 (West
1994)), the defendants are "not liable for an injury caused by
adopting or failing to adopt an enactment or by failing to enforce
any law." The County's and the Forest Preserve's act of approving
the NIASC trail would therefore also be immunized under this
section.
The plaintiffs' next argument on appeal is that section 5--
1(N) of the Snowmobile Act is unconstitutional. The plaintiffs
argue that section 5--1(N) violates the "certain remedy" provision
of article I, section 12, of the Illinois Constitution, which
provides:
"Every person shall find a certain remedy in the laws for
all injuries and wrongs which he receives to his person,
privacy, property or reputation. He shall obtain justice by
law, freely, completely, and promptly." Ill. Const. 1970,
art. I, §12.
The plaintiffs argue that to grant absolute governmental immunity
in all circumstances is irreconcilable with this constitutional
provision.
We are aware of no court that has addressed the
constitutionality of section 5--1(N) of the Snowmobile Act. At the
outset, we note that all legislative enactments carry a strong
presumption of constitutionality (Bernier v. Burris, 113 Ill. 2d
219, 227 (1986)), and all doubts must be resolved in favor of their
validity (Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 368
(1986)). Accordingly, the burden rests upon the plaintiffs, as the
challenging parties, to rebut this presumption. People v. Bales,
108 Ill. 2d 182, 188 (1985).
In Ostergren v. Forest Preserve District, 104 Ill. 2d 128
(1984), our supreme court considered the constitutionality of a
different provision of the Snowmobile Act, section 5--1(I) (625
ILCS 40/5--1(I) (West 1994)). In Ostergren, a snowmobiler sought
damages for injuries allegedly caused by the negligence of the
County of Will, the Forest Preserve District of Will County, and
the Forest Preserve Board of Will County in maintaining and
supervising their property for use by snowmobilers. 104 Ill. 2d at
130. The trial court dismissed the plaintiff's complaint, holding
that the action was barred by section 5--1(I) of the Snowmobile
Act. Ostergren, 104 Ill. 2d at 130. On appeal, the plaintiff
argued that the section was unconstitutional because it violated
the "certain remedy" provision of the Illinois Constitution.
Ostergren, 104 Ill. 2d at 134.
At the time that the plaintiff in Ostergren filed suit,
section 5--1(I) provided, in pertinent part:
" 'An owner, lessee, or occupant of premises owes no duty
to keep the premises safe for entry or use by others for
snowmobiling, or to give warning of any unsafe condition or
use of or structure or activity on such premises.' "
Ostergren, 104 Ill. 2d at 131, quoting Ill. Rev. Stat. 1981,
ch. 95½, par. 605--1(I) (now codified, as amended, at 625 ILCS
40/5--1(I) (West 1994)).
Although this section was subsequently amended to allow for suits
alleging wilful and wanton conduct, the supreme court limited its
discussion to the language cited above. Ostergren, 104 Ill. 2d at
135-36. The court noted that a different standard of care for tort
liability in snowmobile accidents was justified due to the inherent
danger of snowmobile operation in private lots, public parks, and
forest preserves. Ostergren, 104 Ill. 2d at 133. The court
therefore concluded that the language of section 5--1(I) provided
absolute immunity to the defendants and was a constitutional
exercise of the State's police power. Ostergren, 104 Ill. 2d at
133.
The court also held that section 5--1(I) did not violate the
"certain remedy" doctrine of the Illinois Constitution as it did
not prevent a plaintiff from seeking a remedy for his injuries
under the law. Ostergren, 104 Ill. 2d at 134. The court noted
that a victim in a snowmobile accident would still be able to sue
other parties, such as the manufacturer, distributor, or designer
of the snowmobile, as well as the other drivers involved in the
accident. Ostergren, 104 Ill. 2d at 134. The court therefore
concluded that the section did not violate the plaintiff's
constitutional right to a remedy under the law. Ostergren, 104
Ill. 2d at 134-35.
We also note that the Ostergren holding was cited with
approval in Bilyk v. Chicago Transit Authority, 125 Ill. 2d 230
(1988). In Bilyk, the supreme court addressed the
constitutionality of a provision of the Metropolitan Transit
Authority Act (70 ILCS 3605/27 (West 1994)), which provides that
neither the Chicago Transit Authority nor its agents can be held
liable for the failure to provide adequate police protection or
security. Bilyk, 125 Ill. 2d at 233-34. In holding that the
statute did not violate the "certain remedy" provision of the
Illinois Constitution, the court relied on Ostergren for the
proposition that the "General Assembly may restrict the class of
potential defendants from whom a plaintiff may seek a remedy
without violating the ["certain remedy"] provision." Bilyk, 125
Ill. 2d at 246.
In the instant case, as in Ostergren, section 5--1(N) of the
Snowmobile Act does not abolish the plaintiffs' cause of action for
the decedent's injuries and death; it simply restricts the
liability of one category of defendants. The statute does not
preclude the plaintiffs from seeking a remedy from other parties,
and, indeed, the plaintiffs have brought actions that are currently
pending against Bailey, Cranston, Pfoser, Sheehan, and NIASC. As
the plaintiffs have not been prevented from seeking a remedy at
law, there has been no constitutional violation.
Additionally, the statutory language contained in section 5--
1(N) is almost identical to the language contained in section 5--
1(I) at the time it was construed by the supreme court in
Ostergren. Both provisions plainly state that the landowners owe
no duty of care to "keep the premises safe for entry or use by
others for snowmobiling," or to give warnings of any unsafe
condition, use, structure, or activity on the premises. 625 ILCS
50/5--1(N) (West 1994); Ostergren, 104 Ill. 2d at 131. As the
supreme court has determined that the enactment of section 5--1(I)
was a constitutional exercise of the State's police power, we
decline to reach a different result in construing 5--1(N). We
therefore conclude that section 5--1(N) of the Snowmobile Act is
constitutional and provides absolute immunity to the County and the
Forest Preserve as to the allegations of the plaintiffs' second
amended complaint.
The plaintiffs' final contention on appeal is that the Forest
Preserve waived all applicable immunities when it required NIASC to
procure insurance to protect the Forest Preserve from suit.
Relying on Molitor v. Kaneland Community Unit District No. 302, 18
Ill. 2d 11, 17-18 (1959), the plaintiffs argue that immunities are
waived to the extent of any coverage provided pursuant to a policy
of liability insurance. We find no merit to this argument.
Section 9--103(c) of the Tort Immunity Act provides, in
pertinent part:
"Any insurance company that provides insurance coverage
to a local public entity shall utilize any immunities or may
assert any defenses to which the insured local public entity
or its employees are entitled." (Emphasis added.) 745 ILCS
10/9--103(c) (West 1994).
Pursuant to this language, the purchase of insurance is no longer
an automatic waiver of immunity, absent some specific contractual
waiver provision. Knox County v. Midland Coal Co., 265 Ill. App.
3d 782, 788 (1994); Jastram v. Lake Villa School District 41, 192
Ill. App. 3d 599, 604 (1989). As the plaintiffs have failed to
allege that the Forest Preserve has contractually waived the
immunities provided under the Snowmobile Act, we reject the
plaintiffs' contention that the Forest Preserve is liable to the
extent of any insurance coverage provided by the NIASC policy.
For the foregoing reasons, the judgment of the circuit court
of Lake County is affirmed, and the cause is remanded for further
proceedings consistent with this opinion.
Affirmed and remanded.
COLWELL and THOMAS, JJ., concur.