Opinion
2-21-0267
03-25-2022
KATHLEEN FERGUSON, Plaintiff-Appellant, v. CITY OF ELGIN, Defendant-Appellee.
This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Kane County, No. 16-L-285 Honorable James R. Murphy, Judge, Presiding.
BRENNAN, JUSTICE delivered the judgment of the court. Justices Zenoff and Jorgensen concurred in the judgment.
ORDER
BRENNAN, JUSTICE
¶ 1 Held: The trial court erred in granting defendant's motion for summary judgment because there were genuine issues of fact as to whether defendant engaged in willful and wanton conduct. Reversed and remanded.
¶ 2 Plaintiff, Kathleen Ferguson, was injured in June 2015 when she slipped on water in the locker room of The Centre, an indoor pool facility owned by defendant, the City of Elgin (city). The Centre is located at 100 Symphony Way in Elgin, IL. Plaintiff filed a personal injury suit. The city filed a motion for summary judgment, arguing that plaintiff could not show that the city engaged in willful and wanton conduct, thus the city was immune under section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Act). 745 ILCS 10/3-106 (West 2014). The trial court granted the city's motion, and plaintiff appealed. For the reasons that follow, we reverse.
¶ 3 I. BACKGROUND
¶ 4 A. The Complaint
¶ 5 Plaintiff's complaint alleged that, shortly after entering a women's locker room at The Centre, she slipped and fell on the exposed pavement of the locker room. The floor was covered by a pool of water emanating from a machine, called a Suitmate, used to extract water from bathing suits. Due to the fall, plaintiff sustained severe and permanent injuries requiring extensive medical consultations, experienced pain and suffering, lost income, and incurred expenses related to her medical treatment. The complaint alleged that the city engaged in willful and wanton conduct when it failed to adequately remove the condition that caused her fall and failed to warn patrons of the danger.
¶ 6 B. Bruggeman's Deposition
¶ 7 Plaintiff deposed Gregory Bruggeman, a senior recreation supervisor responsible for overseeing The Centre's aquatics facility. Bruggeman testified that he had no personal knowledge of plaintiff's injury or the condition of the locker room at the time of her fall.
¶ 8 Bruggeman was familiar with the Suitmate in the women's locker room. He explained that extracted water is discharged through a hose to the floor, where it then flows into a drain that is covered by a mat. To the best of his knowledge, a mat was in front of the Suitmate on the day of plaintiff's injury because it was always there. He believed mats had been present in the locker rooms since 2010. Counsel for plaintiff asked about the purpose of the mat:
"Q. Why is the mat there?
A. We look at areas where there might be water and we address it, and so we put
down mats. We have mats there. We have mats in the lobby area. We have mats in high- high walking areas, high traffic areas, excuse me, and so we just put them down when we feel they're necessary.
Q. And why did you feel a mat is necessary by this spinner machine?
A. High traffic area.
Q. Is it also an area that because the machine is discharging water that there could be water on the floor so you'd want the mat there for people to walk on? Would that be fair or-let me-go ahead and answer.
A. No."
¶ 9 There was a verbal policy in effect whereby staff members would clean and mop areas as needed, including the women's locker room. The frequency of this activity would vary depending on the day and time. The mat in front of the Suitmate would never be replaced or serviced, and Bruggeman would expect staff members servicing the locker room to move the mat back into place if it were discovered out-of-place. He was not aware of any past complaints regarding the mat being out of place.
¶ 10 The Centre had signage about slippery floors throughout the locker room area, however Bruggeman did not know if there was a specific sign regarding the Suitmate.
¶ 11 C. Plaintiff's Deposition
¶ 12 The city deposed plaintiff, who testified that, prior to June 2, 2015, she had been visiting The Centre three times per week for two or three months. She slipped in the locker room approximately three weeks before her injury but did not fall at that time. She reported the slip to an employee.
¶ 13 Plaintiff visited The Centre on June 2, 2015, to use the pool. After finishing her workout, she returned to the locker room, removed her swimsuit, and placed it in the Suitmate. She did not notice any accumulation of water upon entry. After using the machine, she slipped in a puddle of water in front of the machine.
¶ 14 There were no mats in the women's locker room on June 2, 2015. Plaintiff remembered noticing mats at the entry of the locker room, but not inside. She never told any employees at The Centre that mats were missing because she did not know they were supposed to be there. She had never seen any mats inside the women's locker room during her prior visits. She also did not see any warning signs in the area where she fell.
¶ 15 After the fall, plaintiff spoke to an employee of The Centre. She described the employee as white, in her twenties, taller than her, and having light brown hair. She wore glasses and her hair was in a ponytail. The employee asked plaintiff if she was okay and filled out an accident report. She also told plaintiff that the mats that were supposed to be in the locker room were on order.
¶ 16 D. The City's Motion for Summary Judgment
¶ 17 The city filed a motion for summary judgment on January 20, 2021, arguing that the undisputed facts failed to establish willful and wanton conduct. Attached to the motion were the complaint, both depositions, and photos of the Suitmate and a floor mat covering the drain. Plaintiff filed a response to the city's motion. Attached to plaintiff's motion were the same documents as well as (1) a purchase order and invoice for two "Antifatigue Drainage Mat[s]" from Grainger, dated June 2, 2015, and listing the city as the customer, Bruggeman as the caller, and 100 Symphony Way in the city as the shipping destination; and (2) a series of the city's internal accident reports. The city also filed a reply to plaintiff's response on February 24, 2021, arguing specifically that plaintiff failed to show that the city consciously removed the mats in the women's locker room. The city also contended that plaintiff's deposition testimony that an employee told her mats were on order was inadmissible hearsay.
¶ 18 The trial court summarily granted the city's motion in a written order filed on April 23, 2021. The order contained no explicit findings or reasoning. Plaintiff timely appealed.
¶ 19 II. ANALYSIS
¶ 20 At issue in this appeal is whether the trial court erred when it granted summary judgment for the city.
¶ 21 A. Standard of Review
¶ 22 A trial court may grant a motion for summary judgment if it determines 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 2020). The court must consider the pleadings and any depositions, admissions, or affidavits on file. Id.; Cohen v. Chicago Park District, 2017 IL 121800, ¶ 17. Summary judgment "is a drastic means of disposing of litigation, and this court has a duty to construe the record strictly against the movant and liberally in favor of the nonmoving party." Murray v. Chicago Youth Center, 224 Ill.2d 213, 245-46 (2007). A court should not grant a motion for summary judgment "unless the moving party's right to judgment is clear from doubt, because plaintiffs are not required to prove their cases at the summary judgment stage." Id. at 246. The key question is whether a reasonable jury could return a contrary verdict. See Barr v. Cunningham, 2017 IL 120751, ¶ 15. Summary judgment is inappropriate whenever "(1) there is a dispute as to a material fact, (2) persons could draw divergent inferences from undisputed facts, or (3) reasonable persons could differ on the weight to be given the relevant factors of a legal standard." Cohen, 2017 IL 121800, ¶ 41. We review the trial court's decision to grant summary judgment de novo. Id. ¶ 17.
¶ 23 B. Willful and Wanton Conduct
¶ 24 Plaintiff alleged, in part, that the city engaged in willful and wanton conduct by failing to prevent the hazard that caused her injury-a slip-and-fall in a women's locker room-and by failing to warn patrons of the hazard. Municipalities are immune from suits alleging injury based on the existence of a condition on public property used for recreational purposes unless the entity or an employee caused the injury through willful and wanton conduct. 745 ILCS 10/3-106 (West 2014)." 'Willful and wanton conduct' *** means 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 2014). A plaintiff can demonstrate willful and wanton conduct by (1) showing that the defendant failed to take reasonable precautions after receiving knowledge of a specific danger or (2) presenting some evidence that the activity is generally associated with serious injuries. Barr, 2017 IL 120751, ¶¶ 20, 21. Whether an activity is generally associated with serious injuries is a question of fact for the jury to decide. See id. ¶ 23 (noting the lack of evidence presented at trial that floor hockey played with plastic hockey sticks and squishy balls is an obviously dangerous activity); Murray, 224 Ill.2d at 246 ("The evidence demonstrates that it is well known that use of a mini-trampoline is associated with the risk of spinal cord injury [.]").
¶ 25 The question here is whether there is a genuine issue of material fact as to whether the city demonstrated an utter indifference to or conscious disregard for the safety of others. Recognizing that this is an extremely close case, we answer the question in the affirmative.
¶ 26 In Cohen v. Chicago Park District, 2017 IL 121800, ¶ 24-34, our supreme court determined that the plaintiff bicyclist failed to establish that the defendant park district engaged in willful and wanton conduct when it failed to repair a crack in a shared-use path. Noting that cracks and holes are "an unfortunate but unavoidable reality," the court explained that the cracks did not present an "extraordinary and unusual risk" and there were no prior injuries involving the crack at issue. Id. ¶ 31. It further explained that the defendant promptly inspected the crack and solicited bids to repair it. Id. ¶ 32. Thus, although the defendant could have performed a temporary repair, equating the failure to do so with willful and wanton conduct would render the standard synonymous with ordinary negligence. Id. ¶ 33.
¶ 27 In contrast, our supreme court in Murray v. Chicago Youth Center, 224 Ill.2d 213, 246 (2007), reversed the appellate court's conclusion that the defendant's conduct was not willful and wanton. There, a mother and son filed suit after the boy was injured in a tumbling class conducted by the defendants. The plaintiffs had alleged that the defendant's failure to implement adequate safeguards caused the boy to become injured on a mini-trampoline. Id. at 244-45. The supreme court concluded that a triable issue of fact existed as to whether the defendants' conduct was willful and wanton because the evidence demonstrated that the risk of injury from use of a mini-trampoline was well known. Id. at 246. Further, the program was not supervised by a qualified instructor, there were inadequate reminders of the risk of injury, and trained spotters and safety equipment were not provided at all times. Id.
¶ 28 This court similarly concluded that there was a triable issue fact as to whether a defendant's failure to secure a rope ladder behind a tennis court curtain constituted willful and wanton conduct. Oelze v. Score Sports Venture, LLC, 401 Ill.App.3d 110, 123 (2010). In Oelze, the plaintiff was playing tennis when she tripped on a rope ladder that was left behind a curtain located at the back of the court. The evidence showed that an employee regularly used the rope ladder to train clients and was responsible for storing it; moreover, there was "no question" that defendant and its employees knew that placing an object on the floor where the rope ladder was located created a dangerous hidden tripping hazard. Id. The court further explained that it was clear that the defendant was conscious of the danger because it instructed employees to keep walkways clear. Id. Because it was unclear how the rope ladder came to rest near the curtain, there was a triable issue of fact as to whether it was left inadvertently or due to a conscious disregard for the safety of others. Id. at 124; but see Barr, 2017 IL 120751, ¶¶ 20-24 (concluding plaintiff failed to show that defendant knew of specific danger of playing floor hockey without goggles and failed to show it was an obviously dangerous activity).
¶ 29 The instant fact pattern is more analogous to Murray and Oelze than Cohen. Plaintiff alleged that she slipped and fell in the women's locker room at the city's facility and that the cause was an accumulation of water she did not notice in front of the Suitmate. Bruggeman testified that it was necessary to maintain a mat in front of the Suitmate because it was a high-traffic area and the mats had been in the women's locker room since 2010. He also testified that employees are responsible for checking and cleaning the locker rooms. While he believed a mat was in front of the Suitmate on June 2, 2015, plaintiff testified that no mat was present on that day or during any of her prior visits in 2015. No warning signs were present. After plaintiff reported her injury to a female employee, that employee told plaintiff that mats for the women's locker room were on order. Further, plaintiff attached a purchase order for two mats placed by the city on the same day as her injury and listing Bruggeman as the caller.
¶ 30 Viewing the above evidence in the light most favorable to the non-movant, a reasonable jury could make several additional inferences. There was evidence that mats were present in front of the Suitmate prior to 2015, though plaintiff testified that she had not seen one in the two or three months she had been visiting The Centre. A jury could reasonably infer that the city, having control of the locker room, (1) either caused the mat to be removed or had notice that the mat was removed; and (2) failed to either replace the mat prior to plaintiff's injury or post a warning for patrons. Like the failure to adequately supervise a supervised tumbling class (cf. Murray v. Chicago Youth Center, 224 Ill.2d at 246) or the failure to properly secure dangerous but hidden gym equipment (cf. Oelze, 401 Ill.App.3d at 123), there is a triable issue of fact as to whether the city's alleged failure to place (or replace) a mat or a warning in front of the Suitmate rises to willful and wanton conduct. Unlike the failure to make immediate repairs in a shared-use path (contra Cohen, 2017 IL 121800, ¶ 33), equating the failure to replace a mat in the circumstances alleged with willful and wanton conduct would not render the standard synonymous with ordinary negligence.
¶ 31 There was also some evidence both that (1) the city knew of a specific risk and (2) the alleged conduct was generally associated with a risk of serious injury. Bruggeman testified that he believed placing a mat in front of the Suitmate was necessary, although his stated reason was due to foot traffic. Plaintiff testified that a city employee told her, after learning of her slip-and-fall injury, that mats for the women's locker room were on order; a purchase order showed that mats were in fact purchased on the date of plaintiff's injury; and a related invoice showed that the mats were delivered to 100 Symphony Way in Elgin, the address of The Centre. First, a jury could reasonably question Bruggeman's explanation that foot traffic was the sole reason for the mats, given the other evidence. Second, that an employee responded to plaintiff's injury by telling her that mats were on order gives rise to a reasonable inference that the employee believed a mat would have prevented her injury, which gives rise to a further inference that the city believed that the accumulation of water in a manner alleged to have occurred here could present a risk of serious injury. This inference is reinforced by the purchase order and invoice on the same day as Plaintiff's injury. Third, a jury could reasonably conclude that the accumulation of water in a manner alleged to have occurred here is generally associated with a risk of serious injury, such as a slip-and-fall accident.
¶ 32 Accordingly, a reasonable jury could conclude that the city engaged in willful and wanton conduct by causing the mat to be removed and either failing to replace it or failing to warn of the danger. Thus, it cannot be said that the city's entitlement to immunity is clear from doubt. See Murray, 224 Ill.2d at 246.
¶ 33 The city argues that it could not be willful and wanton because it had no notice of any prior accidents in the area where plaintiff fell and no knowledge of the specific hazard that led to plaintiff's injury. The city cites several cases to illustrate why plaintiff's allegations are inadequate. See Vilardo v. Barrington Community School District 220, 406 Ill.App.3d 713, 724 (2010) (holding defendant's failure to discover alleged defect in protective screen at batting cage not willful or wanton because there was no evidence that anybody knew of any defect prior to the plaintiff's injury); A.D. ex rel. J.D. v. Forest Preserve District of Kane County, 313 Ill.App.3d 919, 924 (2000) (holding defendant's maintenance of a thorny honey locust tree not willful and wanton where it was undisputed defendant had no knowledge of any prior injury or complaint about tree); Winfrey v. Chicago Park District, 274 Ill.App.3d 939, 945 (1995) (holding defendant's failure to prevent plaintiff's fall through hole in fence not willful and wanton because plaintiff did not allege defendant acted intentionally or show defendant knew of hole). The city contends that it had no prior knowledge of the specific accumulation of water that led to plaintiff's injury, thus it could not have disregarded the risk presented in a willful and wanton manner.
¶ 34 In contrast to the cases the city cites, however, here there was evidence that the city was aware of a dangerous condition-namely, the placement of the Suitmate in relation to the drain, where it had previously placed a mat. The cases the city cites do not support its argument that it had to have knowledge of the specific accumulation of water that caused plaintiff to slip. The allegedly hazardous condition was the lack of a mat or a warning sign, and a jury could infer that the city knew about the potential condition that required a mat or a warning to mitigate the hazardous condition. .
¶ 35 The city disputes the admissibility of the statement by an employee to plaintiff that mats were on order, which it contends is hearsay and lacks necessary foundation to establish admissibility as a vicarious admission by a party opponent." 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ill. R. Evid. 801(c) (eff. Oct. 15, 2015). If offered to show that the city had knowledge of the dangerous condition in the women's locker room, however, the statement would not be offered for the truth of the matter asserted. See People v. Prather, 2012 IL App (2d) 111104, ¶ 11 ("Indeed, evidence that is offered to show a person's knowledge or awareness of a circumstance and not to establish the truth of the circumstance is not hearsay."). The employee's statement, made after she learned from plaintiff about her slip-and-fall, was arguably relevant not to prove that the mats had been ordered (which was arguably incorrect given the documentation showing that the order was placed on the same day as Plaintiff's injury), but rather to demonstrate that the employee (and, thus, the city) believed that the presence of a mat would have prevented plaintiff's slip-and-fall. The city fails to explain how the statement would otherwise constitute hearsay.
¶ 36 The city also cites two cases for the proposition that the requirement of notice means plaintiff had to show that the city was aware of more than the general condition of the area. See Brzinski v. Northeast Illinois Regional Commuter R.R. Corp., 384 Ill.App.3d 202, 206 (2008) (explaining that presence of easily detectable sinkholes was irrelevant to whether defendant had constructive notice of an undetectable sinkhole); Gleason v. City of Chicago, 190 Ill.App.3d 1068, 1070 (1989) (explaining that presence of larger cracks near the ¼-inch crack that caused plaintiff's fall was irrelevant to whether defendant's failure to repair the ¼-inch crack was negligent). The city acknowledged that another patron had commented that it was "very slippery in there," referring to the women's locker room, but notes that none of the accidents disclosed in the internal accident reports occurred near the Suitmate. From this the city concludes that it was not informed of the specific hazard that caused plaintiff's fall. However, as stated above, the hazardous condition was the placement of the Suitmate in relation to the drain in the absence of a mat or warning. Brzinski and Gleason are distinguishable because the general conditions referred to by the courts in those cases were discrete physical defects in the ground. Here we are not presented with discrete physical defects unknown to the city, but rather an arguable known slip-and-fall hazard caused by water related to the placement of the Suitmate, coupled with the removal of the mats previously placed there without any warning.
¶ 37 Finally, the city argues that, "absent a policy determination to permanently remove the mat as a safety feature, the City of Elgin did not engage in a 'course of conduct' necessary to establish willful and wanton conduct." In support the city cites Lerma v. Rockford Blacktop Construction Co., 247 Ill.App.3d 567, 573 (1993), which involved wrongful death claims brought against a park district that controlled a dam under repair. The plaintiffs alleged that the project required river currents to be redirected downstream, resulting in dangerous undercurrents and an accumulation of debris from the project, and that the defendant knew about the condition but failed to warn the public or restrict access to the area near the dam. Id. at 568-69. The court noted "the distinction between *** action versus nonaction, commission as opposed to omission" and concluded that the allegations were insufficient to "demonstrate a course of action showing deliberate intention to cause harm or conscious disregard for the safety of others." Id. at 573; see also Bucheleres v. Chicago Park District, 171 Ill.2d 435, 460 (1996) ("[T]he [defendant's] replacement of sand in an area of the lakeshore where the currents normally wash out the sand is not the type of conduct that gives rise to a duty where no duty existed before.").
¶ 38 Lerma s applicability to the instant fact pattern is questionable given more recent supreme court precedent in which the defendant's failure to institute safety precautions, despite a known safety risk, was held to sufficiently allege willful and wanton conduct. Cf. Murray, 224 Ill.2d at 246 (2007); see also Barr, 2017 IL 120751, ¶ 20 ("Illinois courts define willful and wanton conduct, in part, as the failure to take reasonable precautions after 'knowledge of impending danger.' "). There was sufficient evidence for a jury to infer that the city had knowledge of the danger posed by the Suitmate and failed to take reasonable precautions to guard against it. Accordingly, we reject this argument.
¶ 39 Because a reasonable jury could conclude that the city engaged in willful and wanton conduct by removing the mat in front of the Suitmate and failing to provide a warning regarding the risk proximate to the Suitemate, the trial court erred by granting the city's motion for summary judgment.
¶ 40 III. CONCLUSION
¶ 41 For the reasons stated, we reverse the judgment of the circuit court of Kane County.
¶ 42 Reversed and remanded for further proceedings.