In Bowman v. The Chicago Park District, the Illinois Appellate Court held that the Chicago Park District (“CPD”) may be liable for the injury that Cheneka Ross, a 13 year old child, suffered while playing at a park that was intended for children age 12 and under. 2014 IL App (1st) 132122. Cheneka fractured her ankle when her foot became caught in a hole in the bottom of a slide at a park owned by the CPD. Her mother, the Plaintiff, sued the CPD, alleging that it acted willfully and wantonly for failing to repair the damaged slide. In particular, the Plaintiff argued that the hole at the bottom of the slide was not open and obvious and that the CPD failed to repair the slide after being informed of the damage almost one year prior to Cheneka’s injury. The CPD argued that it was not liable for Cheneka’s injury because, as a 13 year old, she was an unintended user of the slide and because the hole at the bottom of the slide was an open and obvious risk that she should have known to avoid.
Under the Illinois Local Governmental and Governmental Employees Tort Immunity Act, municipalities owe a duty of care to individuals who are intended and permitted users of municipal property. The trial court noted that Cheneka had violated a CPD ordinance which restricted the use of playgrounds to children under the age of 12. Thus, the trial court granted summary judgment for the CPD, agreeing that Cheneka was an unintended user of the slide, and therefore, the CPD did not owe her a duty of care and was not liable for her injury.
However, the Appellate Court found that the trial court erred because it only considered the CPD ordinance and did not look to the property itself to determine its intended use and the intended users. The park did not have any signs or any notice indicating that it was designated for use by children under the age of 12 and the CPD did not show that it took any measure to prevent children over age 12 from using the park. Additionally, the Appellate Court noted that the CPD could not cite a case where a child was charged with the responsibility of knowing municipal ordinances without a sign or other notice.
Because the Appellate Court found that Cheneka was an intended user of the park, it reversed the trial court’s decision and ordered the trial court to ascertain whether the CPD is liable for Cheneka’s injury after it determinines whether the slide’s condition was open and obvious so that Cheneka should have known to avoid it and whether the CPD’s failure to repair the slide after being notified amounted to willful and wanton conduct.
