by William R. Thomas (Fall 2016)
In July of 2016, the Third District Appellate Court affirmed a Will County judge’s decision dismissing a complaint by the surviving spouse of a bicycle participant in a Will County Forest Preserve District event in Lorenc v. Forest Preserve District of Will County, 2016 IL App (3d) 150424.
In October of 2013, James Lorenc participated in the Cruise the Creek Bicycle Riding Event held in the Hickory Creek Forest Preserve. The Forest Preserve District of Will County provided volunteers identified as “trail sentinels” designed to provide safety to the participants and to monitor the trail. While approaching a downhill portion of the trail near a bridge, Lorenc reacted to a volunteer sentinel stepping into the middle of the path and motioning with his hands for the bicycle to stop. This caused several bicyclists, including Lorenc, to apply the brakes which unfortunately caused his bicycle to slide; causing him to fly over the handlebars. He landed on his head which injured him, and eventually led to his death.
In an action brought by the surviving spouse of the bicyclist, the Plaintiff filed a wrongful death and survival action against the Forest Preserve. The Forest Preserve filed a motion to dismiss under both 735 ILCS 5/2-615 and 619 of the Illinois Code of Civil Procedure. The Forest Preserve argued that pursuant to Section 2-615 of the Illinois Code of Civil Procedure that the Plaintiff failed to allege sufficient allegations to form a finding of willful and wanton misconduct against the Forest Preserve and argued for immunity from liability in the Section 2-619 motion under the Local Governmental and Governmental Employees Tort Immunity Act. In agreeing with the Will County trial court, the appellate court broke down the analysis into the respective grounds for the dismissal.
A Section 2-615 motion attacks the legal sufficiency of the complaint claiming defects on the face of the complaint. Due to the Forest Preserve being a public entity a plaintiff must prove not mere negligence but that the actions constituted willful and wanton conduct. The complaint must allege, in order to prove the willful and wanton conduct, that the Forest Preserve owed a duty to Lorenc, that it breached that duty, that the breach was the proximate cause of the Lorenc’s injury, and that the defendant’s conduct either exhibited a deliberate intent to cause harm or utter indifference or a conscious disregard for the welfare of the Plaintiff. (Citing Kirwan v. Lincolnshire-Riverwoods Fire Protection District, 349 Ill.App.3d 150 (2nd Dist. 2004))
The Local Governmental and Governmental Employees Tort Immunity Act provides several definitions that are important. The Act defines willful and wanton conduct 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.” (745 ILCS 10/1-210)
The appellate court reviewed the factual allegations which included affidavits and depositions as to both the reason behind the trail sentinels and their training. While part of their training is designed to instruct them to stay off the trail for the safety of the participants, they are there to assist the participants. The appellate court found that while this trail sentinel volunteer did not follow the Forest Preserve’s exact instructions about not standing on the trail, it concluded that the act itself did not establish the high burden of an utter indifference or a conscious disregard for the bicyclist’s safety and did not rise to the necessary level of willful and wanton misconduct. Based upon this analysis, the appellate court affirmed the trial court’s decision to dismiss the complaint.
Its secondary analysis of the immunity of the Forest Preserve required the further analysis of the facts to various definitions found in the Immunity Act. The Act provides and protects local public entities and their employees from liability arising out of the operation of government. (745 ILCS 10/1-101.1(a)) It further provides in part that “a local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable.” (745 ILCS 10/2-109) Finally, the Act indicates “a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.” (745 ILCS 10/2-201)
In analyzing the facts, the appellate court felt that the volunteer trail sentinels were provided with discretion on how they would provide the safety and notify the bicyclists of hazards, or otherwise provide assistance. The court further found that the actions of this sentinel to jump into the path, wave his hands to alert the bicyclist, was an exercise of such discretion and therefore under 745 ILCS 10/2-201, qualified as a public employee utilizing such discretion and found that the Forest Preserve was therefore immune from a liability under the Tort Immunity Act.
The Lorenc case stands as an example of an analysis of the proper use of motions attacking pleadings and raising affirmative defenses including immunity for governmental dependents so that not every accident, even a death, results in legal liability.