Wright v. Gurnee Park District

2025 IL App (2d) 240687

No. 2-24-0687

Opinion filed October 21, 2025

________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________

AMANDA V. WRIGHT, ) Appeal from the Circuit Court

) of Lake County.

Plaintiff-Appellant, )

)

v. ) No. 21-L-372

)

THE GURNEE PARK DISTRICT, ) Honorable

) Joseph V. Salvi,

Defendant-Appellee. ) Judge, Presiding.

______________________________________________________________________________

JUSTICE McLAREN delivered the judgment of the court, with opinion.

Justices Hutchinson and Birkett concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Amanda V. Wright, was injured when she fell on a tree stump on property owned

by defendant, the Gurnee Park District. The injury occurred at Prairie Oaks Park, a multi-use

property that includes a playground, a paved trail system, and natural areas for passive recreation.

The tree stump at issue was in a natural area of the park (Property) directly behind the home of

plaintiff’s brother, Tobias Wilson. Plaintiff filed a personal injury suit. Defendant filed a motion

for summary judgment (735 ILCS 5/2-1005 (West 2022)), arguing that (1) plaintiff was neither an

intended nor permitted user of the Property, (2) no duty was owed because the condition and risk

of the area were open and obvious, and (3) defendant was not guilty of willful and wanton conduct

and was thus immune under the Local Governmental and Governmental Employees Tort Immunity

2025 IL App (2d) 240687

Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 2020)). The trial court granted

defendant’s motion on the first two grounds, and plaintiff appealed. For the following reasons, we

affirm.

¶2 I. BACKGROUND

¶3 A. The Complaint

¶4 In May 2021, plaintiff filed a complaint against defendant and the Village of Gurnee, which

the trial court dismissed on plaintiff’s motion. Subsequently, plaintiff filed a three-count first

amended complaint against defendant only. Defendant filed a motion to dismiss the first amended

complaint under section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West

2022)). In July 2022, the trial court granted the motion to dismiss counts I and III but denied the

motion to dismiss count II. In her second amended complaint, filed in August 2022, plaintiff

alleged one count of willful and wanton conduct by defendant. Defendant filed a motion to dismiss

under section 2-615 of the Code (735 ILCS 5/2-615 (West 2022)), which the trial court denied in

December 2022. Thereafter, defendant filed an answer to plaintiff’s second amended complaint

and asserted affirmative defenses, including the Tort Immunity Act. Defendant filed a motion for

summary judgment in April 2024, which the trial court granted on June 14, 2024.

¶5 Plaintiff’s second amended complaint alleged the following. As a result of defendant’s

willful and wanton acts and/or omissions, plaintiff “tripped over unkempt grass and a raised and

uneven tree stump, causing her to trip and fall directly to the ground below.” The fall caused

plaintiff severe and permanent injuries requiring extensive medical consultations, pain and

suffering, lost income, and incurred expenses related to her medical treatment. Defendant engaged

in willful and wanton conduct when it failed to adequately remove the stump that caused plaintiff’s

fall and knew or should have known that it was a hazard to pedestrian traffic. Plaintiff alleged that

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defendant was willful and wanton in failing to warn pedestrians of the hazard, failing to grind

down and completely remove the stump, and failing to trim “unkempt grass and overgrown

shrubbery” that were concealing the hazard.

¶6 B. Plaintiff’s Deposition

¶7 Plaintiff testified that, on the day of the incident, June 13, 2020, she was visiting the home

of her brother, Tobias Wilson. Defendant’s Property behind Tobias’s home is part of a lightly

wooded, grassy area that leads to a trail that connects to Prairie Oaks Park, a recreational property

owned and maintained by defendant.

¶8 Plaintiff has lived in Gurnee since 2013. Her brother lived there before she moved to the

area. They live a seven-minute drive apart and often visit each other’s homes. Tobias had two

children at home who are around the same age as plaintiff’s children.

¶9 On the day of the incident, plaintiff and her two youngest children visited Tobias. She

testified it was a nice day and she hoped her children could play outside with their cousins during

the early days of the COVID-19 pandemic. Although plaintiff had been to Tobias’s home many

times, she had rarely been at the back of the house—and on those few occasions she remained on

the deck. Plaintiff had not been in the grassy part of the backyard until the day of the incident.

¶ 10 Plaintiff testified that Tobias had specifically invited her so that her two youngest children

could play badminton with her brother’s family. Instead of erecting the badminton net on Tobias’s

property, plaintiff and Tobias erected the net on defendant’s Property behind his home. The

children were not interested in playing badminton, however, so plaintiff and Tobias played

together. Tobias won the first game, and the siblings switched sides for a second game.

¶ 11 Plaintiff testified her brother had cautioned her to be careful around an area she described

as having taller grass. She believed it was a “shrub” or “bush” that was to the side of where they

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were playing. When the shuttlecock landed near the “shrubbery,” plaintiff walked directly to it and

bent down to pick it up. Plaintiff’s left foot hit the tree stump, and she fell. Plaintiff testified she

had instinctively tried to catch herself as she fell and she heard and felt her left wrist break.

¶ 12 Plaintiff acknowledged there were numerous, obvious hazards where they constructed the

badminton net. Prior to the incident, she had not investigated the hazards, including the tree stump.

Plaintiff could tell that defendant’s Property had been mowed recently. Plaintiff was familiar with

the website for the park district but had not contacted anyone regarding her plan to erect the

badminton net on park property.

¶ 13 C. Tobias’s Deposition

¶ 14 Tobias testified that he owned the home at 5032 Prairie Oak Drive on the date of the

incident. Tobias noted that he and his family generally do activities in the front yard. He agreed

with plaintiff’s characterization of him that he tries to have a “fun” house and has many games for

his children. His backyard slopes down towards defendant’s Property, so he decided with his wife

and plaintiff to erect the badminton net on the flatter park district Property on the day of the

incident.

¶ 15 While he lived in the home for several years, Tobias testified that he did not pay much

attention to his backyard and the park land beyond. He would mow the lawn as needed, but never

beyond his own property line. Tobias did not have detailed memories of the game with plaintiff

but described it as casual and not competitive. When plaintiff fell, Tobias heard her arm break and

drove her to the hospital.

¶ 16 D. Becker’s Deposition

¶ 17 Steven Becker testified he had worked for defendant since 1996 and was the grounds

operations supervisor in the summer of 2020. Becker has several associate degrees related to his

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2025 IL App (2d) 240687

position, including arboriculture, landscape maintenance, turf maintenance, and natural areas

management. He is also a certified park and recreational professional and a certified arborist. In

his role, Becker testified he would walk through all 400 acres of park district property on at least

a monthly basis.

¶ 18 Becker testified he was very familiar with defendant’s Property behind 5032 Prairie Oak

Drive. The Property was often wet because sump pumps from surrounding homes drain into the

area. Residents often dump branches from their yards onto the Property. He worked with other

employees to seed the grass and plant oak trees in the area; turning it from “an absolute mud pit”

with invasive species into a grassy, wooded area.

¶ 19 Becker testified he was notified of a downed tree on the Property in September 2018. He

and another employee “processed the tree” by removing limbs, cutting the trunk into smaller

pieces, and cutting the stump down as low as possible. Becker remembered the tree was a very

large Boxelder, an invasive species not planted by defendant, and the stump had many jagged

splinters before he cut it. While he might remove stumps entirely in areas with high traffic, Becker

testified there was no need to remove this stump because it was in a low maintenance, low traffic

area. There was also no need to trim weeds around the stump because it was clearly visible. There

had been no reports of anyone tripping on the stump before plaintiff. When shown photos of the

stump taken a few days after the incident, Becker testified the stump was clearly visible despite

slightly taller grass and wood violets, a low-growing wildflower.

¶ 20 When Becker was notified of plaintiff’s injury, he contacted the Joint Utilities Location

Information for Excavators (JULIE) to have the area around the stump inspected for underground

utilities. Because there were utilities directly below the stump, Becker had to be very careful

removing it.

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2025 IL App (2d) 240687

¶ 21 E. Lukowicz’s Deposition

¶ 22 Justin Lukowicz testified he was a full-time landscaper for defendant in 2020. Normally

there were seasonal employees to help with landscaping and maintenance. However, the COVID-

19 pandemic had left defendant short staffed. As a result, during the summer of 2020, Lukowicz

was solely responsible for mowing half of the 400 acres of park land. Therefore, he generally

trimmed less than before.

¶ 23 Lukowicz testified that, on June 12, 2020, the day before the incident, he spent 7.5 hours

mowing Prairie Oaks Park and attached park property, including the grassy, wooded area behind

Tobias’s property. While there would normally be another crew member to assist, Lukowicz

testified that they would not have trimmed weeds by any trees in that area, including by the tree

stump on the Property. Trimming and edging were reserved for areas with higher traffic, such as

playgrounds and athletic fields.

¶ 24 Lukowicz testified that his responsibilities included inspecting park property for hazards

as he landscaped. If he found something, he would immediately report it to his supervisor. While

he would not have driven his mower over any stump for fear of damaging defendant’s equipment,

he testified he did not believe the stump on the Property was a hazard. Patrons sometimes informed

Lukowicz of park-related issues, but he never received complaints about the Property’s

landscaping.

¶ 25 F. Owens’s Deposition

¶ 26 Kraig Owens testified he was employed by defendant as a project and risk manager in June

2020. He was promoted to director of parks and planning in December 2020. Owens testified that

it had been standard practice by defendant to grind down tree stumps in high-traffic areas, but

stumps in other areas were either left to decompose naturally or were left to be ground down to

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2025 IL App (2d) 240687

woodchips in the future. When the tree fell on the Property in 2018, the stump was cut down as

close to ground level as possible.

¶ 27 Owens testified that defendant’s operations changed in the summer of 2020. By June 2020,

playgrounds and basketball courts were closed to comply with pandemic restrictions. Seasonal

hiring was halted. The full-time landscaping employees worked to mow the grass on over 400

acres of parkland each week. The employees would trim trees as necessary, maintain asphalt

pathways, and generally keep defendant’s properties in good repair.

¶ 28 Owens testified that the rules of Prairie Oaks Park, as listed on defendant’s website, state

that games and sports are only allowed in designated areas. Games and sports are not allowed in

other areas. If a member of the public had requested to play badminton on the Property, Owens

testified he would have directed them to the large open field nearby that was dedicated to

recreational play.

¶ 29 Owens testified that he received a report of the June 13 incident on June 18, 2020. He went

to the Property that day and took photos of the stump. Owens testified that he believed the stump

was obvious, but he had it removed since plaintiff had reported that she tripped over it. This was

the only complaint related to the stump on the Property, according to Owens.

¶ 30 G. Motion for Summary Judgment

¶ 31 On April 1, 2024, defendant filed a motion for summary judgment pursuant to section 2-

1005 of the Code. 735 ILCS 5/2-1005 (West 2022). After a hearing, on June 14, 2024, the trial

court granted the motion and held that (1) under section 3-102 of the Tort Immunity Act (745 ILCS

10/3-102 (West 2020)), Gurnee Park District Ordinance Code § 5.01 (approved January 17, 2017),

and park district rules, plaintiff was neither an intended nor permitted user of the park, and (2) the

defect was open and obvious. Plaintiff filed a motion to reconsider on June 14, 2024. The trial

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2025 IL App (2d) 240687

court denied the motion and reaffirmed judgment in favor of defendant on October 10, 2024. A

bystander report of the arguments and findings of the trial court was entered on February 13, 2025.

This timely appeal followed.

¶ 32 II. ANALYSIS

¶ 33 Plaintiff appeals, arguing that she was an intended and permitted user of the park and the

tree stump was not an open and obvious condition. Although the trial court had not addressed the

issue, plaintiff also argues that defendant’s conduct in failing to “remove unkempt grass and

shrubbery” rose to the level of willful and wanton conduct. For reasons that follow, we affirm the

trial court.

¶ 34 A. Plaintiff’s Brief

¶ 35 We begin by addressing defendant’s argument that plaintiff’s statement of facts violated

Illinois Supreme Court Rule 341(h)(6) (eff. Oct. 1, 2020) because it is both argumentative and fails

to provide this court with an understanding of the case. Defendant notes that plaintiff’s statement

of facts is a single paragraph that cites only the statement of facts in one of plaintiff’s responses

below—and repeats the same factual misrepresentations—and not the deposition testimony or

facts identified during discovery. Defendant therefore posits that we should disregard plaintiff’s

statement of facts in its entirety.

¶ 36 Moreover, we sua sponte note that plaintiff’s brief also boldly claims that “[t]his appeal

does not involve any statutes” in the “Statutes Involved” section as required by Illinois Supreme

Court Rule 341(h)(5) (eff. Oct. 1, 2020). This is incorrect. The trial court specifically cited the Tort

Immunity Act and the Gurnee Park District Ordinance Code when granting summary judgment.

Plaintiff may wish to argue that these statutes should not apply, but it is fallacious to claim that no

statutes are involved in the immediate matter. The Tort Immunity Act is central to this case.

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2025 IL App (2d) 240687

¶ 37 After reviewing plaintiff’s brief, we agree with defendant that plaintiff’s statement of facts

is woefully lacking. The record is almost 900 pages in length and includes numerous depositions,

exhibits, and filings across over three years of litigation. The statement of facts in plaintiff’s brief

was so insufficient as to require a considerable amount of effort from both defendant and this court

to recreate the facts from the record.

¶ 38 Illinois Supreme Court rules “are not suggestions; rather, they have the force of law, and

the presumption must be that they will be obeyed and enforced as written.” People v. Campbell,

224 Ill. 2d 80, 87 (2006). Failing to comply with the rules regarding appellate briefs is not an

inconsequential matter. Burmac Metal Finishing Co. v. West Bend Mutual Insurance Co., 356 Ill.

App. 3d 471, 478 (2005). The purpose of the rules is to require parties to proceedings before a

reviewing court to present clear and orderly arguments so that we may properly ascertain and

dispose of the issues involved. Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151,

¶ 7. “Where a brief has failed to comply with the rules, we may strike portions of the brief or

dismiss the appeal should the circumstances warrant.” Super Mix of Wisconsin, Inc. v. Natural Gas

Pipeline Co. of America, 2020 IL App (2d) 190034, ¶ 28. We decline to strike any portion of the

brief or dismiss the appeal, but we will disregard the noncompliant portions of plaintiff’s brief.

We strongly admonish plaintiff’s counsel to carefully follow the requirements of the supreme court

rules in future submissions. Failure to comply is unfair to this court, opposing counsel, and one’s

client.

¶ 39 B. Summary Judgment

¶ 40 Summary judgment may be granted when the pleadings, depositions, admissions, and

affidavits, viewed in the light most favorable to the nonmovant, fail to establish that a genuine

issue of fact exists, therefore entitling the moving party to judgment as a matter of law. 735 ILCS

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5/2-1005(c) (West 2022); Village of Bartonville v. Lopez, 2017 IL 120643, ¶ 34. The party moving

for summary judgment bears the initial burden of proof. National Tractor Parts Inc. v. Caterpillar

Logistics Inc., 2020 IL App (2d) 181056, ¶ 38. Summary judgment should be denied where a

reasonable person could draw divergent inferences from undisputed facts. Seymour v. Collins,

2015 IL 118432, ¶ 42. “Summary judgment is a drastic means of disposing of litigation.” Wright

v. Waukegan Community Unit School District 60, 2022 IL App (2d) 210334, ¶ 25 (citing Jackson

v. TLC Associates, Inc., 185 Ill. 2d 418, 423 (1998)). As such, the movant’s right to summary

judgment must be clear and free from doubt. Jackson, 185 Ill. 2d at 424. Rulings on motions for

summary judgment are reviewed de novo. Home Insurance Co. v. Cincinnati Insurance Co., 213

Ill. 2d 307, 315 (2004). Under the de novo standard of review, we perform the same analysis as

the trial court and give no deference to the trial court’s conclusions. People v. Morgan, 2025 IL

130626, ¶ 22. In addition, we may affirm a grant of summary judgment on any basis appearing in

the record, even if the trial court did not rely on that ground. In re Marriage of Hipes, 2025 IL App

(1st) 240601, ¶ 71.

¶ 41 In the instant case, the trial court granted summary judgment because it found that

(1) plaintiff was not an intended and permitted user of the Property and (2) the dangerous condition

of the tree stump was open and obvious. We will address each finding in turn and address whether

defendant’s conduct was willful and wanton and therefore not immune from liability under the

Act.

¶ 42 1. Intended and Permitted Use

¶ 43 Plaintiff argues that the trial court erred in finding that she was neither an intended nor

permitted user of the park. The Tort Immunity Act defines the care owed by a local public entity

as follows:

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2025 IL App (2d) 240687

“Except as otherwise provided in this Article, a local public entity has the duty to exercise

ordinary care to maintain its property in a reasonably safe condition for the use in the

exercise of ordinary care of people whom the entity intended and permitted to use the

property in a manner in which and at such times as it was reasonably foreseeable that it

would be used, and shall not be liable for injury unless it is proven that it has actual or

constructive notice of the existence of such a condition that is not reasonably safe in

reasonably adequate time prior to an injury to have taken measures to remedy or protect

against such condition.” (Emphasis added.) 745 ILCS 10/3-102(a) (West 2020).

¶ 44 Our supreme court has held that a plaintiff must be both an intended and permitted user of

the property to maintain the litigation against the local public entity. Vaughn v. City of West

Frankfort, 166 Ill. 2d 155, 160 (1995). “In truth, an intended user of property is, by definition, also

a permitted user; a permitted user of property, however, is not necessarily an intended user.” Boub

v. Township of Wayne, 183 Ill. 2d 520, 524 (1998).

¶ 45 Plaintiff bears the burden to show that she was an intended and permitted user of the

Property when she played badminton in that portion of Prairie Oaks Park. See Alave v. City of

Chicago, 2023 IL 128602, ¶ 37 (noting that it is the plaintiff’s burden to allege and prove all

elements of a negligence claim). The relevant intent is that of the local public entity, not the intent

of the individual using the property. Wojdyla v. City of Park Ridge, 148 Ill. 2d 417, 425 (1992).

The intent of a local public entity with regard to the use of its property must be inferred from the

circumstances. Sullivan v. City of Hillsboro, 303 Ill. App. 3d 650, 653 (1999). The intended use

can be determined by looking for “affirmative manifestations” such as signs, ground markings,

and other physical manifestations. Alave, 2023 IL 128602, ¶ 40. “An important circumstance to

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2025 IL App (2d) 240687

consider is whether the municipality has enacted an ordinance governing the use of the property.”

First Midwest Trust Co. v. Britton, 322 Ill. App. 3d 922, 928 (2001).

¶ 46 Defendant points to several entries in the Gurnee Park District Ordinance Code. While a

few of these citations are unpersuasive, two are worth discussing. The first pertinent section relates

to the erection of the badminton net:

“Unlawful Construction, Maintenance or Encroachment.

No person shall upon or in connection with any property owned and/or managed

by the District:

(a) Erect, construct, install, or place any structure, building, improvement,

shed, fence, wall, dog run, dog house, tree house, playhouse, play equipment, TV

or radio reception device, machinery, equipment, or apparatus of any type, whether

stationary or moveable and whether permanent or temporary in character, or

stockpile, store or place any organic or inorganic material used for the construction

of such items on, below, over or across a Park, without the written authorization

from the District, and then only in accordance with the terms and conditions set

forth in a license agreement, easement or other written agreement. Corporations

may be prosecuted for a violation of this Section when an agent of the corporation

performs the conduct that is prohibited.” Gurnee Park District Ordinance Code

§ 2.14 (approved January 17, 2017).

And second, the trial court specifically referred to ordinance 5.01, which states that “No person

shall, without a permit: *** (l) [c]onduct any organized sporting event as part of any public

assembly, picnic, or other gathering.” Id. § 5.01. The court further noted a park rule that provided

that “Games and Sports are allowed in designated areas only.”

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2025 IL App (2d) 240687

¶ 47 The parties disagree as to the intended use of the Property behind Tobias’s house. Plaintiff

argues that the Property is open to the public and there was no rule, ordinance, or sign that

specifically prohibited the playing of badminton in the area. Defendant counters that the first

ordinance listed above prohibits erecting temporary play structures and that there are posted park

rules stating that “Games and Sports are allowed in designated areas only” and visitors should

“stay on the marked trail” to preserve nature.

¶ 48 The parties have provided photographs, video stills, testimony, and an overview of property

plats using Illinois geographic information system data. The photos show an area with grass, trees,

and no clearly defined trails. The Property lies behind residences and is adjacent to a trail that leads

to designated fields that can be reserved for sport and play. All of these connected areas are

considered part of Prairie Oaks Park, and all are maintained by defendant. While the Property

behind Tobias’s house can be used by homeowners to more easily access nearby parks, this

property is clearly not a public park for sport. It is a green space. There are no physical markings

or indications that this area was intended to be used for sports. General use by the public to access

connected recreational areas is not the same as defendant intending that the grassy, wooded area

itself be used by the public for games and sports. The trial court did not err in finding that plaintiff

was not an intended user of the space for the purpose of playing badminton.

¶ 49 Moreover, plaintiff’s argument that badminton was a permitted use of the property is not

the “smash” she may have intended. Plaintiff argues that badminton is allowed anywhere on park

property because the rules only mention other specific sports being restricted to designated areas.

Based on this logic, badminton is allowed anywhere on park property because defendant’s rules

only restrict the playing of baseball, soccer, lacrosse, and golf in designated areas. As defendant

notes, the logical extension of this argument is an exercise in reductio ad absurdum: that any sport

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not specifically mentioned could be played anywhere, from bowling in flower beds to diving in

retention ponds and playing badminton inside any building owned by defendant. The trial court

did not err in finding that plaintiff was not a permitted user of the property.

¶ 50 2. Open and Obvious Doctrine

¶ 51 In the alternative, plaintiff asserts that the trial court erred in finding the stump to be an

open and obvious hazard. Plaintiff claims the site included “messy, unkempt grass and overgrown

shrubbery” that concealed the “uneven, jagged, and elevated tree stump.” Defendant counters that

even if plaintiff could not clearly discern the stump from one narrow viewpoint, she was aware of

the general condition of the property and failed to exercise ordinary judgment in recognizing the

potential risk.

¶ 52 Section 3-102 of the Act provides that a local public entity has the duty to exercise ordinary

care to maintain its property in a reasonably safe condition. 745 ILCS 10/3-102 (West 2020). The

Act did not create this duty; it merely codified the duty that existed at common law. Bruns v. City

of Centralia, 2014 IL 116998, ¶ 15. Therefore, we look to the common law to determine whether

defendant’s general duty of care set forth in the Act extended to the risk at issue in this case. See

Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 414 (1991).

¶ 53 The open-and-obvious doctrine is an exception at common law to the general duty of care

owed by a landowner. Ward v. K mart Corp., 136 Ill. 2d 132, 142, 151 (1990); Olson v. Williams

All Seasons Co., 2012 IL App (2d) 110818, ¶ 42. In Illinois, this exception is based on section

343A(1) of the Second Restatement of Torts and adopted by our supreme court. See Restatement

(Second) of Torts § 343A(1) (1965); Ward, 136 Ill. 2d at 151. A dangerous condition “may be so

blatantly obvious and in such position on the defendant’s premises that he could not reasonably be

expected to anticipate that people will fail to protect themselves from any danger posed by the

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condition.” Ward, 136 Ill. 2d at 148; accord Suchy v. City of Geneva, 2014 IL App (2d) 130367,

¶ 22. The law assumes that people will recognize danger and take care to avoid risk. Bezanis v.

Fox Waterway Agency, 2012 IL App (2d) 100948, ¶ 15. Where the facts are not in dispute about

the physical nature of the condition, the question of whether the condition is open and obvious is

a legal one, properly determined by a court. Olson, 2012 IL App (2d) 110818, ¶ 42; Wilfong v. L.J.

Dodd Construction, 401 Ill. App. 3d 1044, 1053 (2010).

¶ 54 As noted above, the record in the immediate matter is replete with evidence relating to the

physical nature of the tree stump. It is plain from the photos that there was an area of higher grass

clearly visible. Even if plaintiff might not have been able to tell what was near the taller grass from

a distance, she surely would have known that this area had not been mowed for a reason. There

was something in the grass. And views of the stump from almost every direction clearly show that

this something was a tree stump cut close to the ground. The stump was not “jagged,” and photos

reveal the “shrub” was actually low-growing plants, identified by Becker, a certified arborist, as

wood violets.

¶ 55 Plaintiff described the area around the stump as being “unkempt” and “overgrown” with

“shrubbery.” Plaintiff does not claim to be a botanist, horticulturist, or even well acquainted with

landscaping and lawncare. But her mischaracterization of the plants does not rise to the level of a

dispute over the physical condition of the area. Plaintiff and her brother both testified they saw the

area of taller grass and Tobias warned plaintiff to use care near it. There was no genuine issue of

material fact that a reasonable person would anticipate the danger of stepping on or near the

“shrubbery.” For these reasons, the trial court properly held that the open-and-obvious doctrine

applied as a matter of law.

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¶ 56 We note that plaintiff claims for the first time on appeal that the distraction exception to

the open-and-obvious doctrine should apply. The existence of an open and obvious condition is

not a per se bar to finding a legal duty. Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 449

(1996). For instance, the distraction exception applies “ ‘where the possessor [of land] has reason

to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious,

or will forget what he has discovered, or fail to protect himself against it.’ ” Sollami v. Eaton, 201

Ill. 2d 1, 15 (2002) (quoting Restatement (Second) of Torts § 343A cmt. f, at 220 (1965)). Plaintiff

attempts to avail herself of this exception with the claim that she was distracted by the “unkempt

grass and overgrown shrubbery.” However, because plaintiff failed to raise this argument in the

trial court, we decline to consider it now. See Western Casualty & Surety Co. v. Brochu, 105 Ill.

2d 486, 500 (1985) (“It is axiomatic that questions not raised in the trial court are deemed waived

and may not be raised for the first time on appeal.”).

¶ 57 3. Willful and Wanton Conduct

¶ 58 Finally, plaintiff asserts that defendant committed willful and wanton conduct and thus is

not protected by the Act. Plaintiff makes this argument in passing and without citation to the Act,

in violation of Illinois Supreme Court Rule 341(h)(5) (eff. Oct. 1, 2020). The trial court did not

address this issue as it granted summary judgment on other grounds, but we are not restricted from

addressing it ourselves because we may affirm on any basis supported by the record under our

de novo review. Home Insurance Co., 213 Ill. 2d at 315.

¶ 59 The purpose of the Act is to protect local public entities and public employees from liability

arising from the operation of government. Van Meter v. Darien Park District, 207 Ill. 2d 359, 368

(2003). By providing immunity, the legislature sought to prevent public funds from being diverted

from their intended purpose to the payment of damages claims. Village of Bloomingdale v. CDG

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Enterprises, Inc., 196 Ill. 2d 484, 490 (2001). The immunities afforded under the Act serve as

affirmative defenses, which, if properly raised and proven, bar a plaintiff’s right to recovery.

Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 43-44 (1998). If no immunity provision applies, a

public entity is as potentially liable in tort as any private party. Murray v. Chicago Youth Center,

224 Ill. 2d 213, 229 (2007). “Since the Tort Immunity Act is in derogation of the common law, it

must be construed strictly against the public entity seeking immunity.” Andrews v. Metropolitan

Reclamation District of Greater Chicago, 2019 IL 124283, ¶ 23.

¶ 60 As noted above, the Tort Immunity Act states that a local public entity has a duty to

“maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of

people whom the entity intended and permitted to use the property in a manner in which and at

such times as it was reasonably foreseeable that it would be used.” 745 ILCS 10/3-102(a) (West

2020). The Act specifically addresses public property used for recreation:

“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.” Id.

§ 3-106.

This section was enacted to encourage the development and maintenance of public parks,

playgrounds, and other recreational areas. Bubb v. Springfield School District 186, 167 Ill. 2d 372,

378 (1995). As with other sections of the Act, this provides a public entity with “an affirmative

defense, which, if properly raised and proven by the public entity, bars a plaintiff’s right to

recovery.” Id.

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¶ 61 The exception of “willful and wanton conduct” is defined by the Tort Immunity Act:

“ ‘Willful and wanton conduct’ as used in this Act 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. 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 2020).

It is clear that willful and wanton conduct requires more than mere “[i]nadvertence, incompetence,

or unskillfulness.” Floyd v. Rockford Park District, 355 Ill. App. 3d 695, 701 (2005). Rather, a

plaintiff must plead facts supporting an inference that the defendant was informed of a dangerous

condition on the recreational property, knew that others had been injured as a result of the

dangerous condition, or intentionally removed a safety device or feature from the recreational

property. Id.; Callaghan v. Village of Clarendon Hills, 401 Ill. App. 3d 287, 301 (2010).

¶ 62 Section 3-106 does not automatically apply to any public area where recreation might

occur. Bubb, 167 Ill. 2d at 381. “In determining the nature of public property, courts have therefore

considered whether the property has been used for recreation in the past or whether recreation has

been encouraged there.” Id. at 382. Assuming, arguendo, that plaintiff could have shown that the

property was intended to be used for recreation, plaintiff would still have to show that defendant

was guilty of willful and wanton conduct. “Willful and wanton misconduct approaches the degree

of moral blame attached to intentional harm, since the defendant deliberately inflicts a highly

unreasonable risk of harm upon others in conscious disregard of it.” (Internal quotation marks

omitted.) Burke v. 12 Rothschild’s Liquor Mart, Inc., 148 Ill. 2d 429, 448 (1992). Generally, to be

guilty of willful and wanton conduct, a defendant must be conscious, from knowledge of the

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surrounding circumstances and conditions, that such conduct will naturally and probably result in

injury. Leja v. Community Unit School District 300, 2012 IL App (2d) 120156, ¶ 11.

¶ 63 Determining whether conduct is “willful and wanton” is generally a question for the jury.

Cohen v. Chicago Park District, 2017 IL 121800, ¶ 27. However, there are circumstances in which

it is necessary for the court to “decide as a matter of law whether the plaintiff’s complaint alleges

sufficient facts of a defendant’s willful and wanton conduct to create a jury question.” Murray,

224 Ill. 2d at 245. Applying the principles to a review of the summary judgment pleadings in this

case establishes that no triable issue of material fact exists on whether defendant’s conduct was

willful and wanton.

¶ 64 The evidence demonstrates that defendant had not received any prior complaints about its

maintenance of this grassy, wooded Property. There were no previous accidents reported on the

Property. Despite staffing challenges brought on by the pandemic, defendant’s employees took

significant steps to maintain all park properties for the enjoyment of residents. The Property had

been mowed the day before plaintiff fell. The stump had not been removed when the tree fell in

2018, but the Property was a grassy, lightly wooded area that saw only limited public use compared

to the nearby trail and designated clearings for sports and recreation. Plaintiff failed to allege facts

that, taken as true, would permit an inference that defendant was on notice of a high risk of injury

posed by the stump. Even if we were to determine that defendant was negligent for not immediately

grinding the stump in 2018, which we have not, we would not find that defendant’s conduct was

“willful and wanton” as required by the Act.

¶ 65 III. CONCLUSION

¶ 66 For the reasons stated, we affirm the judgment of the circuit court of Lake County.

¶ 67 Affirmed.

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Wright v. Gurnee Park District, 2025 IL App (2d) 240687

Decision Under Review: Appeal from the Circuit Court of Lake County, No. 21-L-372;

the Hon. Joseph V. Salvi, Judge, presiding.

Attorneys Alexis C. Karkula, of Sherwood Law Group, LLC, of Chicago,

for for appellant.

Appellant:

Attorneys Dustin S. Fisher, of Park District Risk Management Agency, of

for Lisle, and Michael R. Hartigan, of Hartigan & O’Connor, P.C.,

Appellee: of Chicago, for appellee.

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