Tagliere v. Western Springs Park District

FIFTH DIVISION
February 25, 2011

No. 1-09-2633

STEVEN TAGLIERE, Individually, and ) Appeal from the
as Natural Guardian of TAIYLOR ) Circuit Court of
TAGLIERE, a Minor, ) Cook County.
)
Plaintiff-Appellant, )
v. )
)
WESTERN SPRINGS PARK DISTRICT, )
a Municipal Corporation, ) Honorable
) Marcia Maras,
Defendant-Appellee. ) Judge Presiding.

JUSTICE HOWSE delivered the judgment of the court, with

opinion.

Presiding Justice Fitzgerald Smith and Justice Epstein

concurred in the judgment and opinion.

Plaintiff, Steven Tagliere, filed a complaint against the

defendant, Western Springs Park District (hereinafter Park

District), seeking damages for injuries his minor daughter,

Taiylor, sustained while playing on a seesaw owned by the Park

District. The circuit court of Cook County determined that the

failure of a Park District employee to discover a defect in the

seesaw during his regularly scheduled inspections did not

constitute willful and wanton conduct and entered summary

judgment in favor of the Park District. On appeal, Tagliere

alleges the failure of the Park District to discover and correct

a defect in the seesaw despite repeated inspections constituted
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willful and wanton conduct as a matter of law and the Park

District had actual or constructive knowledge of the defect and

the failure to correct the defect constituted willful and wanton

conduct. For the reasons set forth below, we affirm the decision

of the circuit court.1

BACKGROUND

In Tagliere’s third amended complaint, he alleges that

Taiylor, age seven, sustained a broken ankle on February 9, 2006,

while playing on a defective seesaw at a park owned by the

Western Springs Park District. Tagliere alleges the manufacturer

of the seesaw instructed the Park District on how to inspect and

maintain the seesaw. Tagliere also alleges that the seesaw was

visibly defective and the Park District’s failure to discover the

defects on routine inspection and make repairs constituted

willful and wanton conduct.

In a discovery deposition, John R. Gleason, the owner of

NuToys Leisure Products, Inc., testified that the Park District

purchased the seesaw from his company in 1991. The seesaw was

manufactured by Landscape Structures, Inc., which sends

1
Justice Michael P. Toomin originally participated in this
case. Oral argument was held on November 9, 2010. However, he
has since left this court. Justice James Epstein, in Justice
Toomin's stead, has considered the original briefs and record in
this matter, has listened to oral arguments, has reviewed the
Rule 23 order issued, and now joins in the instant decision
rendered above.

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maintenance information directly to the purchasers of the

equipment.

Gleason testified that the center of the seesaw has a coil

that is attached to the seesaw by four spring clamps held

together by four bolts. If the clamps are missing, the seesaw

will go up and down farther than it should and a “pinch point”

will be created. Gleason testified that a pinch point is a space

between two hard objects where a user can become injured.

Gleason testified he inspected the seesaw after the accident

and observed it was in disrepair but could not determine for how

long. He observed that the spring clamps were not in place, only

one of four bolts was in place but was not fastened, and parts of

the seesaw contained rust. Gleason testified that the defects in

the seesaw were obvious.

Michele Tagliere, Taiylor’s mother, testified in a discovery

deposition that prior to her daughter’s accident, she was not

aware of any accidents on the seesaw at the park. On the day of

the accident, Michele received a call from Taiylor’s school

informing her that Taiylor had been injured. Michele went to the

school, heard Taiylor screaming, and observed Taiylor’s left

ankle to be severely injured. Michele called 911 and Taiylor was

taken to the hospital. Michele later learned from a neighbor

that Taiylor’s injury occurred on the seesaw.

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The next morning doctors performed a closed reduction on the

broken bones in Taiylor’s left ankle. Taiylor was placed in a

cast on her left side from her toes up to her waist. Taiylor

wore the cast for approximately two months. Taiylor was unable

to attend school for approximately two months.

Tagliere testified in a discovery deposition that on the day

of Taiylor’s accident, he was called to the hospital where he

observed Taiylor in the emergency room, heavily medicated, and

with her leg in a splint.

Tagliere testified that he was not aware of any complaints

about the condition of the seesaw at the park prior to the

accident. Tagliere testified that he was aware of complaints

regarding playground equipment in other parks prior to the

accident but was not aware of any injuries as a result of

defective playground equipment.

Tagliere took photographs and video of the seesaw after the

accident. At that time, he observed that bolts were missing on

the springs of the seesaw but he does not know for how long.

Taiylor testified in a discovery deposition that when the

accident happened, five other girls were on the seesaw and she

was sitting in a middle seat. Taiylor testified that while the

girls rode up and down on the seesaw she was swinging her left

foot when she felt pain and fell off the seesaw. Her left ankle

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was caught in the seesaw and she managed to pull it out. Taiylor

testified that a “lunch dad” picked her up and a “lunch mom” held

her foot.

Taiylor testified that she observed a bolt on the ground by

the seesaw prior to her accident. She left the bolt by the

seesaw and did not show it to anyone or report it to anyone.

Taiylor testified that she currently feels pain when she

plays sports and trips over her left foot when she is running.

Dennis Conway, Western Springs Park District foreman,

testified in a discovery deposition that he inspects the

playground equipment in 12 village parks once a month. Conway

observes each piece of equipment for breaks and wear. If a

defect is discovered, the equipment is shut down until it is

repaired. Conway keeps a file on each park containing all the

original documents that came with each piece of playground

equipment, including orders for new parts.

Conway, who has attended classes on playground safety,

including instruction on how to inspect playground equipment,

testified he had inspected the seesaw at the park both before and

after the accident.

Conway viewed photos of the seesaw taken shortly after the

accident and observed from the photos that bolts and clamps on

the seesaw were missing. Conway testified that when he inspects

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the seesaw he uses a check list provided by the manufacturer. He

sits on either side of the seesaw and pushes up and down, side to

side, “to make sure it looks like it’s acting the way it’s

suppose to perform and then [I] check the handheld rails, all of

them, check all of the footrests, and I’ll move the seats.”

Conway inspected the seesaw approximately two weeks before

the accident, on January 25, 2006. He also inspected it after

the accident and did not observe any defects. The seesaw was

eventually removed to a Park District garage where Conway

participated in its repair, including adding brackets to the top

of the coils. Conway is not aware of any problems with the

seesaw since it was repaired. Conway also has no opinion as to

how Taiylor’s accident occurred.

On cross-examination, Conway testified that he is not aware

of any complaints regarding the seesaw prior to the accident. He

also testified that he was not aware that the seesaw was missing

the brackets on top of the coils or any bolts at the time of the

accident or even that the seesaw needed brackets on its top. He

testified that he did not have a sufficient understanding of the

design and of the seesaw to determine that it was missing bolts

and clamps. Conway testified he and his supervisor Craig

Himmelmann were unable to observe a defect on the seesaw after

the accident. As a result, they contacted Jack Gleason from

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NuToys to help determine the cause of the accident and whether

there were defects that needed repair.

The record contains an affidavit from plaintiff’s expert

engineer Gary Hutter, who possesses a bachelor of science degree

in mechanical engineering and a master of science degree in

environmental engineering. Hutter has worked for more than 30

years in the fields of mechanical, environmental and safety

engineering and currently is employed by Meridian Engineering and

Technology Company.

Hutter attested that he inspected the seesaw and opined that

it was structurally unsound and in unsafe condition for use by

children because bolts were missing from the bolt holes on the U-

shaped bracket at the “fulcrum point” of the seesaw where two

coil springs are located. The coil springs were missing spring

clamps that he opined should have been attached. Hutter opined

that because of the defects, gaps were created between the spring

coil and the bracket and the gaps increased and decreased in size

as the seesaw rose up and down creating a pinch point.

Hutter opined:

“When the seesaw is in good repair, no

pinch points or crush points exist that could

catch or trap any part of a child’s body.”

Steven King, owner of Landscape Structures, Inc., the

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manufacturer of the seesaw, testified in a discovery deposition

that his company provided installation instructions to the Park

District in 1991 when it installed the seesaw. The Park District

was provided with a general maintenance inspection sheet

containing a checklist to establish a regular routine of

inspections.

King testified that in 1991 his company did not test its

playground equipment for pinch points but now such testing is

standard procedure.

Craig Himmelmann, director of parks for the Western Springs

Park District, testified in a discovery deposition that safety

inspection of the seesaw involved checking the seats, handholds

and foot pegs, to make sure they were tight. They would also

rock the seesaw to check for any shifting on the fulcrum.

Himmelmann testified that at the time of the accident he was not

aware that the seesaw possessed clamps that were attached by

bolts to the springs/fulcrum. Himmelmann did not observe empty

bolt holes on the seesaw prior to the accident. Himmelmann

testified that if he had seen the holes prior to the accident, he

would not have known what they were.

Himmelmann testified that after the accident he inspected

the seesaw and referred to the installation instructions but

could not determine what, if anything, was wrong with the seesaw.

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Himmelmann contacted NuToys and was provided a diagram of the

seesaw that indicated the seesaw was missing a clamp. Himmelmann

was unfamiliar with the term “pinch point” and testified he was

unaware that equipment, like a seesaw that contains springs, if

improperly installed, could create pinch points.

Himmelmann testified:

“There was no need to check for pinch

points because I have been told by NuToys

that the coils springs were designed not to

pinch.”

Himmelmann, who has been employed by the Park District since

1985, testified that when the seesaw was installed in 1991, it

arrived pre-assembled. The Park District hired an outside

company to complete its installation. Himmelmann testified that

he had no reason to believe that the seesaw was not properly

installed.

At the end of discovery, including the completion of 11

depositions, the Park District filed its motion for summary

judgment alleging it was immune under section 3-106 of the Local

Governmental and Governmental Employees Tort Immunity Act (745

ILCS 10/3-106 (West 2008)) (hereinafter Tort Immunity Act). The

trial court granted the motion, holding:

“[T]he local public entity is liable only

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when it is guilty of willful and wanton

misconduct approximately causing the injury.”

The trial court found that willful and wanton misconduct in

regards to playground equipment can occur only if the public

entity has actual knowledge of a dangerous condition. The trial

court stated:

“You must be informed of a dangerous

condition, know that others have been injured

or intentionally removed a safety feature.”

The trial court stated that there is no issue of material

fact in the case at bar because there is no evidence the park

district had actual knowledge that the seesaw was in dangerous

condition. Tagliere’s motion for reconsideration was denied.

This appeal followed.

ANALYSIS

The issue presented for review is whether the trial court

erred when it granted summary judgment for the defendant based on

its immunity under the Tort Immunity Act (745 ILCS 10/1-101 et

seq. (West 2008)). We review a trial court’s grant of summary

judgment de novo. Adamczyk v. Township High School District 214,

324 Ill. App. 3d 920, 922 (2001).

The purpose of summary judgment is not to try a question of

fact but rather to determine whether a genuine issue of material

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fact exists. Williams v. Manchester, 228 Ill. 2d 404, 416-17

(2008). Summary judgment is proper when the pleadings,

affidavits, depositions and admissions of record, construed

strictly against the moving party, show that there is no genuine

issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law. Gregory v. Beazer

East, 384 Ill. App. 3d 178, 184-85 (2008). Summary judgment

should not be granted unless the movant’s right to judgment is

clear and free from doubt. Mitchell v. Special Education Joint

Agreement School District No. 208, 386 Ill. App. 3d 106, 111

(2008).

A triable issue precluding summary judgment exists where the

material facts are disputed or where, the material facts being

undisputed, reasonable persons might draw different inferences

from the undisputed facts. Williams, 228 Ill. 2d at 417.

Although summary judgment can aid in the expeditious disposition

of a lawsuit, it remains a drastic means of disposing of

litigation and, therefore, should be allowed only where the right

of the moving party is clear and free from doubt. Williams, 228

Ill. 2d at 417.

In this case it is undisputed that Taiylor’s injuries

occurred on Park District property intended for recreational use

and that the Park District is a local governmental unit. In

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Illinois, local governmental units are liable in tort on the same

basis as private tortfeasors unless a valid statute dealing with

tort immunity imposes conditions upon that liability. LaMonte v.

City of Belleville, 41 Ill. App. 3d 697, 705 (1976) (citing

Krieger v. Village of Carpentersville, 8 Ill. App. 3d 243, 247

(1972)); Austin View Civic Ass'n v. City of Palos Heights, 85

Ill. App. 3d 89, 95 (1980).

The Park District alleged and the trial court found the

Park District was immune under section 3-106 of the Tort Immunity

Act (745 ILCS 10/3-106 (West 2008)), which provides:

“Neither a local public entity nor a public

employee is liable for an injury where the

liability is based on the existence of a

condition of any public property intended or

permitted to be used for recreational

purposes, including but not limited to parks,

playgrounds, open areas, buildings or other

enclosed recreational facilities, unless such

local entity or public employee is guilty of

willful and wanton conduct proximately

causing such injury.” 745 ILCS 10/3-106

(West 2008).

Willful and wanton conduct is defined in section 1-210

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of the Tort Immunity Act as:

“[A] course of action which shows an actual

or deliberate intention to cause harm or

which, if not intentional, shows an utter

indifference to or conscious disregard for

the safety of others or their property. This

definition shall apply in any case where a

‘willful and wanton’ exception is

incorporated into any immunity under this

Act.” 745 ILCS 10/1-210 (West 2008).

In order to establish willful and wanton conduct, a

plaintiff must prove that a defendant engaged in a “course of

action” that shows an actual or deliberate intention to cause

harm or shows an utter indifference to or conscious disregard for

the safety of others. 745 ILCS 10/1-210 (West 2008).

I. Failure to Discover the Defect Despite Repeated Inspections

Tagliere alleges the failure of the Park District to

discover and correct a defect in the seesaw despite repeated

inspections constituted willful and wanton conduct as a matter of

law, citing Winfrey v. Chicago Park District, 274 Ill. App. 3d

939 (1995).

In Winfrey, the plaintiff sought damages for injuries he

received on Chicago Park District property. The park district

was immune from liability under the Tort Immunity Act unless the

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park district was guilty of willful and wanton conduct. After

noting that the Tort Immunity Act includes park districts within

its definition of local public entities, the court discussed

various common law definitions of willful and wanton conduct

discussed in Illinois case law:

“Willful and wanton conduct is not a

static concept. In examining the concept in

the context of a negligence action, the

supreme court recognized that willful and

wanton conduct exists along a continuum; it

may be either intentional or less than

intentional, 'i.e., where there has been “a

failure, after knowledge of impending danger,

to exercise ordinary care to prevent” the

danger, or a “failure to discover the danger

through *** carelessness when it could have

been discovered by the exercise of ordinary

care.”’ " Winfrey, 274 Ill. App. 3d at 944

(quoting Ziarko v. Soo Line R.R. Co., 161

Ill. 2d 267, 274 (1994), quoting Schneiderman

v. Interstate Tourist Lines, Inc., 394 Ill.

569, 583 (1946); citing 3 Richard A. Michael,

Illinois Practice §24.8, at 385-86 (1989)).

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The supreme court has noted that willful and wanton conduct

may be only “ ‘degrees less than intentional wrongdoing’ " or

“ ‘degrees more than ordinary negligence’ "; and it has long

recognized that willful and wanton is not a concept amenable to

precise description. Winfrey, 274 Ill. App. 3d at 944 (quoting

Ziarko, 161 Ill. 2d at 275). In Myers v. Krajefska, 8 Ill. 2d

322 (1956), the court explained that while courts had used

“ ‘different wording, language and terminology’ " to define

willful and wanton, the core element of the term common in all of

the cases was that “ ‘liability can be founded *** where the act

was done with actual intention or with a conscious disregard or

indifference for the consequences when the known safety of other

persons was involved. The knowledge concerning other persons can

be actual or constructive. *** It is generally considered in that

area of fault between ordinary negligence and actual malice.’ "

Winfrey, 274 Ill. App. 3d at 944-945 (quoting Myers, 8 Ill. 2d at

328-29; accord Lynch v. Board of Education of Collinsville

Community Unit District No. 10, 82 Ill. 2d 415, 429-30 (1980)).

The Park District argues that the common law definitions of

willful and wanton in the cases cited by Tagliere are no longer

applicable when determining whether the conduct of a public

entity constitutes willful and wanton conduct under the Tort

Immunity Act. Defendant argues that the Illinois legislature

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amended section 1-210 of the Act in 1998 to exclude the

definitions found in the common law cited by Tagliere. The

amendment added one sentence to the statute after it defined

willful and wanton conduct:

“[A] course of action which shows an actual

or deliberate intention to cause harm or

which, if not intentional, shows an utter

indifference to or conscious disregard for

the safety of others or their property. This

definition shall apply in any case where a

‘willful and wanton’ exception is

incorporated into any immunity under this

Act.” (Emphasis added.) 745 ILCS 10/1-210

(West 2008).

The record contains a transcript of the hearings held in the

Illinois General Assembly in conjunction with the amendment of

section 1-210 of the Act. We note the following exchange:

“Krause: Is it the intent of this Bill

to ensure that the definition of willful and

wanton conduct, provided in the Tort Immunity

Act, be applied in all cases where a willful

and wanton exception is incorporated into the

Act?

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Dart: Yes. A sentence has been added to

the definition of willful and wanton conduct

in the Act, clarifying that the statutory

definition be used for cases affected by the

Act and that other definitions of willful and

wanton conduct that may have or will be

provided through common laws, shall not be

used in such cases.” 90th Ill. Gen. Assem.,

House Proceedings, May 20, 1998, at 17

(statements of Representatives Krause and

Dart).

The 1998 amendment of section 1-210 of the Act did not

change the statutory definition of willful and wanton. However

the legislature, in the amendment, clearly indicated that it

requires the use of the statutory definition of willful and

wanton to evaluate the conduct of public entities in Tort

Immunity cases to the exclusion of common law definitions found

in the cases cited by Tagliere.

Under section 1-210, as amended, a public entity is guilty

of willful and wanton conduct only where the entity engages in a

“course of action which shows an actual or deliberate intention

to cause harm or which, if not intentional, shows an utter

indifference to or conscious disregard for the safety of others

or their property.” 745 ILCS 10/1-210 (West 2008).

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In this case, the Park District made repeated inspections of

the seesaw prior to Taiylor’s injury but failed to discover the

defect. Based on the record before us, we cannot say that

Conway’s failure to discover the defect, even after repeated

inspections, constituted actual or deliberate intention to cause

harm or shows an utter indifference to or conscious disregard for

the safety of others. Conway’s failure to discover the defect

may be arguably negligent, however, the conduct of the Park

District was not willful and wanton, as defined by section 1-210

of the Tort Immunity Act.

Tagliere also alleges that the trial court failed to apply

a balancing test to determine whether the Park District’s failure

to repair the seesaw constituted willful and wanton conduct,

citing Burlingame v. Chicago Park District, 293 Ill. App. 3d 931

(1997). In Burlingame, we held that the question of whether or

not the failure of a public entity to discover and repair a

dangerous condition on its property constituted willful and

wanton conduct could be evaluated using a balance test:

“We find that this approach can provide

useful guidance for charges of willful and

wanton misconduct: a failure to repair a

dangerous condition may constitute negligence

whenever the likelihood of severe injury

outweighs the burden of preventing injury,

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but the same failure constitutes willful and

wanton misconduct only if the balance is

especially one-sided, as where the likelihood

of severe injury is particularly great or the

burden of preventing injury is patently

small. Only in cases of such severe

imbalances could the failure to act shock the

conscience in the manner of willful and

wanton misconduct.” Burlingame, 293 Ill.

App. 3d at 934 (citing Oravek v. Community

School District 146, 264 Ill. App. 3d 895,

900 (1994)).

Tagliere argues that the defect in the seesaw could have

been discovered with relative ease and, therefore, the failure to

discover it and make repairs, under the Burlingame balancing

procedure, constituted willful and wanton conduct.

We note Burlingame concerned injuries that were incurred

before the 1998 amendment to section 1-210 of the Act. The 1998

amendment to section 1-210 requires that the statutory definition

of willful and wanton be used to evaluate the Park District’s

conduct in this case, rather than the common law definition and

balancing test of the Burlingame case.

The balancing test of Burlingame is not applicable to this

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case because the legislature defined willful and wanton as “a

course of action which shows an actual or deliberate intention to

cause harm or which, if not intentional, shows an utter

indifference to or conscious disregard for the safety of others.”

745 ILCS 10/1-210 (West 2008). The legislature also provided

that this was the only definition to be used when evaluating the

alleged willful and wanton conduct of public entities under the

Tort Immunity Act. The failure of the Park District to discover

the defect despite repeated inspections may have been negligent

but did not constitute willful and wanton conduct as defined by

section 1-210. The trial court was correct to not conduct the

Burlingame balancing test because the legislature has amended

section 1-210 of the Act to eliminate its applicability to this

case.

II. Actual Notice of Dangerous Conditions

Tagliere claims the Park District had actual notice of the

dangerous condition of the seesaw because the missing clamps were

in place when the Park District received the pre-assembled seesaw

in 1991. Tagliere claims that Conway should have observed the

missing clamps during his regular inspections. Tagliere argues a

reasonable inference can be made that Conway ignored the

dangerous condition of the seesaw that existed at the time he

performed his inspection in 2005 and 2006. Tagliere claims the

failure of the park District to repair the seesaw after knowledge

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of the dangerous condition constitutes willful and wanton

conduct.

Conway testified that he was not aware that bolts and spring

clamps were missing. The record shows Conway is not an engineer

and he was unaware that he needed to inspect the spring coils to

make sure the clamps were in place. Conway testified that

regular inspections of the seesaw consisted of checking the

seats, handholds, footpegs and moving the seesaw up and down.

The record contains a document titled “Inspection Checklist,”

which is a sheet of paper containing four empty columns, titled

“Play Component,” “Inspected,” “Problem (if any)” and “Action

Taken.” The document does not contain columns or checklists for

the coils, bolts, spring clamps or pinch points on the seesaw.

There is no indication that a person performing inspections on

the seesaw, using this document as a guide, would know to check

the condition of the coils, bolts, spring clamps, or to look for

pinch points.

Conway testified that he did not know that a pinch point

could occur on the seesaw. After the accident, Conway inspected

the seesaw and could not determine what was wrong with it, nor

did he observe a defect.

The record shows that it was not until Conway received a

diagram from the seller NuToys, after the accident and after his

inspections, that he learned the seesaw was missing two spring

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clamps. There is no question that the missing clamps and bolts

can be easily observed. However, the record shows that Conway

was unable to make a determination that spring clamps were

missing until after receiving additional information from the

manufacturer after Taiylor’s injury. Therefore, we cannot say

Conway had actual knowledge the spring clamps were missing prior

to Taiylor’s injury when he did not know they even existed, and

he did not know they needed to be in place, or that the danger of

pinch points existed or that he needed to inspect the seesaw for

pinch points.

Tagliere next claims there is sufficient circumstantial

evidence that the Park District had actual notice of the defects

in the seesaw, citing Pfeifer v. Canyon Construction Co., 253

Ill. App. 3d 1017 (1993). Tagliere claims the Park District had

actual knowledge of the defects in the seesaw based on

circumstantial evidence, like the truck owner in Pfeifer, because

Conway admitted he inspected the seesaw prior to the accident and

other witnesses testified that the dangerous condition was not

difficult to detect by a visual inspection.

In Pfeifer, the plaintiff’s husband died from asphyxiation

from fumes produced when the engine of a truck caught fire.

Pfeifer, 253 Ill. App. 3d at 1019. The engine of the truck had

been extensively modified. The fire started when a fuel line had

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been rerouted over the steering shaft. The fuel line failed when

it came into contact with moving parts of the steering system and

leaked fuel onto the exhaust manifold.

After the plaintiff presented her case, the trial court

directed a verdict for defendant, finding there was not

sufficient evidence that defendant had actual knowledge that the

fuel lines had been rerouted and created a danger of fire.

Pfeifer, 253 Ill. App. 3d at 1020. Since defendant was a

gratuitous bailor, defendant was liable to plaintiff’s decedent

only if it knew or had reason to know the truck was dangerous for

the use for which it was supplied.

The Second District reversed the trial court, finding that a

reasonable jury could infer from the circumstantial evidence that

defendant knew about changes made to the truck’s fuel lines

because: (1) defendant owned and maintained the truck from the

time of its purchase; (2) that the evidence showed the truck had

been extensively modified after it had been delivered to the

defendant; and (3) that the defendant employed mechanics to

perform maintenance on the truck and some drivers maintained the

truck themselves. Pfeifer, 253 Ill. App. 3d at 1025.

However, we cannot say that circumstantial evidence shows

the Park District knew of the defects. The evidence shows the

Park District purchased the seesaw pre-assembled and hired an

outside company to complete installation. In contrast, there is

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circumstantial evidence defendant modified the fuel lines in

Pfeifer because it extensively modified the engine of the truck

and evidence shows only defendant’s mechanics could have rerouted

the fuel line. Here, there is no evidence the defendant modified

the seesaw. The defects in the seesaw, which consisted of

missing parts, were not a modification and were not discernable

to Park District staff because they did not possess the requisite

knowledge to recognize whether any parts were missing on the

seesaw.

The record shows that the second district in Pfeifer found

that the defendant had the requisite knowledge and tools to

modify the fuel lines, unlike the case at bar where the Park

District staff did not have the requisite knowledge of the design

and make up of the seesaw to perform proper safety inspections,

let alone any modifications, which are not even at issue here.

Also unlike Pfeifer, there is no evidence here, circumstantial or

otherwise, that the Park District created the defect or even knew

of its existence before the accident.

III. Constructive Knowledge

Next, Tagliere claims the Park District had constructive

knowledge that the seesaw was defective and is therefore liable.

Tagliere cites Muellman v. Chicago Park District, 233 Ill.

App. 3d 1066 (1992), for the proposition that “[w]here evidence

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exists that a public entity has knowledge a dangerous condition

can exist on its property, even if it does not regularly conduct

inspections, and it fails to take steps to discover and correct

the condition, knowledge sufficient for a willful and wanton

claim can be imputed to it despite a claim by the public entity

that it lacks actual knowledge.”

In Muellman, plaintiff was injured when she stepped into a

large open pipe while walking to an outdoor concert in Chicago’s

Grant Park. Muellman, 233 Ill. App. 3d at 1066-67. An employee

for defendant testified that the pipes normally are covered with

lids but these lids can be easily removed and are often knocked

off by defendant’s lawn care equipment. Muellman, 233 Ill. App.

3d at 1067. The employee testified he painted some of the pipes

yellow and orange so the pipes would be visible to those

operating lawn mowing equipment. Another employee testified that

he was aware the lids were being stolen.

In affirming judgment for plaintiff, we found that the

defendant was aware and acknowledged the danger of the pipes by

painting them to avoid damage to its equipment. We also found

the defendant “consciously disregarded the safety of the general

public by painting only those pipes which they determined could

damage defendant’s [lawn care] equipment.” Muellman, 233 Ill.

App. 3d at 1069.

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Notwithstanding the Muellman injuries occurred before the

1998 amendment to section 1-210 of the Act, the case is

distinguishable on the facts. The defendant in Muellman knew

some lids were stolen and selected some pipes to paint so the

operators of lawn equipment could spot them. The defendant,

knowing the missing lids were dangerous, made no provision for

the safety of pedestrians, leaving them at peril. In contrast,

here, there is no evidence the Park District knew the spring

clamps were missing from the seesaw.

In sum, we cannot say the trial court erred when it

determined there was no evidence the Park District’s conduct

demonstrated an utter indifference to or a conscious disregard

for the safety of others. At most, the failure of Conway to

discover the missing spring clamps during his inspection was

negligent. However, we cannot say the Park District showed an

utter indifference to or conscious disregard for the safety of

others or that it was informed, either through actual or

constructive notice, of a dangerous condition on the seesaw.

There is no evidence the Park District knew or should have known

others had been injured because of the condition, or that it

intentionally removed a safety device or feature from the seesaw.

745 ILCS 10/1-210 (West 2008). As a result, we cannot say the

trial court erred in granting defendant’s motion for summary

judgment.

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CONCLUSION

We affirm the order granting summary judgment by the circuit

court.

Affirmed.

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