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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