# Torres v. Peoria Park District

> Appellate Court of Illinois · April 22, 2021 · 2020 IL App (3d) 190248

URL: https://www.frixlaw.com/law-library/cases/4680003

## Case

- **Court:** Appellate Court of Illinois
- **Decided:** April 22, 2021
- **Citations:** 2020 IL App (3d) 190248
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 7 later opinions in the Frix Law Library

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## Opinion text

Digitally signed by
Reporter of
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Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2021.04.19
16:54:58 -05'00'

Torres v. Peoria Park District, 2020 IL App (3d) 190248

Appellate Court MICHAEL T. TORRES and JAIMIE GIBSON, Plaintiffs-Appellants,
Caption v. THE PEORIA PARK DISTRICT, d/b/a Camp Wokanda,
Defendant-Appellee.

District & No. Third District
No. 3-19-0248

Filed February 26, 2020

Decision Under Appeal from the Circuit Court of Peoria County, No. 17-L-346; the
Review Hon. Michael P. McCuskey, Judge, presiding.

Judgment Reversed and remanded.

Counsel on Scott B. Gibson and John R. Steigauf, of Gibson Steigauf, of
Appeal Waukegan, for appellants.

Adam P. Chaddock, of Quinn, Johnston, Henderson, Pretorius &
Cerulo, of Peoria, and Edward F. Dutton, of Lisle, for appellee.

Panel JUSTICE CARTER delivered the judgment of the court, with opinion.
Justices O’Brien and Wright concurred in the judgment and opinion.
OPINION

¶1 Plaintiffs, Michael T. Torres and Jaimie Gibson, filed a second amended complaint against
defendant, the Peoria Park District, alleging they sustained injuries that were proximately
caused by defendant’s willful and wanton conduct. Defendant filed a motion to dismiss the
plaintiffs’ second amended complaint, which the trial court granted with prejudice. Plaintiffs
appealed. We reverse the trial court’s order granting defendant’s motion to dismiss and remand
for further proceedings.

¶2 FACTS
¶3 On August 26, 2017, plaintiffs, Michael Torres and Jaimie Gibson, allegedly sustained
injuries at a campground owned by defendant, the Peoria Park District. On December 18, 2017,
plaintiffs filed a complaint against the Peoria Park District for damages, which was dismissed
without prejudice. Thereafter, plaintiffs filed an amended complaint, which was also dismissed
without prejudice. On June 22, 2018, plaintiffs filed a second amended complaint against the
park district for damages.
¶4 In count I (regarding the injuries of Michael Torres) and in count II (regarding the injuries
of Jaimie Gibson) of the second amended complaint, plaintiffs alleged that the park district had
engaged in willful and wanton conduct that proximately caused their injuries. Specifically,
plaintiffs alleged the park district “owned, operated, maintained, and patrolled” Camp
Wokanda; Camp Wokanda included a park, camping sites, wedding/banquet facility, and
indoor accommodations for hire, as well as access to overnight camping sites on their property
in exchange for a monetary fee; in February 2017, plaintiffs met with an agent or employee of
the park district for a tour of Camp Wokanda for the purpose of deciding whether to reserve
the camp for their future wedding and reception; at that meeting, the camp’s employee
described the rules, regulations, and policies of Camp Wokanda and led plaintiffs on a tour
throughout the campground, during which time the employee explained that plaintiffs could
rent one particular campsite for their exclusive use during their stay, pointed to two poles on
each side of the path to the campsite, and explained that the poles were there for plaintiffs’
exclusive use and could be used “for any camping or recreational purpose they so desired.”
¶5 In counts I and II, plaintiffs additionally alleged that sometime before August 26, 2017,
plaintiffs reserved one of the campsites for multiple nights, beginning on Friday, August 25,
2017, and paid the requested monetary fee; on August 25, 2017, plaintiffs arrived at Camp
Wokanda, checked in with employees/agents of the park district, and were directed by the
defendant to their designated individual campsite; on Saturday, August 26, 2017, plaintiffs
attached their own camping hammock to two vertical parallel poles that were secured in the
ground at the entryway of their designated campsite area and sat in the hammock together; one
of the poles broke and fell onto both plaintiffs, causing the hammock and plaintiffs to drop to
the ground; and no warnings were posted prohibiting the use of hammocks at the campsite.
¶6 Plaintiffs further alleged in counts I and II that in February 2017 and on August 26, 2017,
the park district had a policy of not allowing hammocks or any other object to be hung from
the poles and had actual knowledge that the said poles were never intended to, and did not have
the structural ability to, support appreciable weight (including people in hammocks); at no time
did the plaintiffs agree to or sign any type of release of liability; at no time did defendant
communicate with plaintiffs about any rules, policies, or warnings regarding their stay and use

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of Camp Wokanda; and, on August 26, 2017, after the pole broke and injured plaintiffs, a
Peoria police officer told one of the plaintiffs’ family members that the park district had a
policy that did not allow erecting hammocks or any other object from any structure within the
park district property. Plaintiffs attached the police report to the second amended complaint,
indicating that, upon his arrival to the scene, the responding officer saw a “telephone pole”
standing on the right of the entrance to the camp area with a hammock tied to it and a
“telephone pole” on the ground to the left of the entrance. The responding officer also indicated
in the report that he followed the ambulance to the hospital to gather information and, while
Torres and Gibson were being treated, he advised Torres’s mother that “it is Peoria Park
District Policy that we do not allow erecting hammocks, or any other object, from any structure
within Park District properties.”
¶7 Plaintiffs also alleged in counts I and II that on and before 1975, Camp Wokanda was
owned and used by the United States Boy Scouts, who erected numerous manmade wooden
poles adjacent to a number of campsite openings and trails to be used to hang banners, flags,
finish line signs, and string lights; those poles remained vertically in the ground and remained
in their original location for many years; the poles “were not intended by the Boy Scouts to
support any appreciable weight including the hanging of hammocks with people in them”; the
Boy Scouts had actual knowledge, including the formation of a safety policy, that the poles
were not safe to support any appreciable weight, including people in hammocks; in 1975, the
park district purchased Camp Wokanda and continuously owned, operated, maintained, and
administered Camp Wokanda to the present time; for 42 years (1975 through August 26, 2017),
the park district kept said poles in their pre-1975 locations and had actual knowledge and a
policy that the poles, including the pole that broke and injured plaintiffs, were unsafe and
unable to support appreciable weight, including people sitting in a hammock; at no time did
the park district notify plaintiffs of its policy that did not allow the hanging of hammocks from
the poles or that its policy prohibiting hanging hammocks from the poles was due to the poles
never having been intended to hold appreciable weight or due to the poles being old and rotted;
the park district did not have an inspection system and did not inspect the poles to ascertain
the condition of the poles; the park district did not post any warning signs regarding the use of
the poles; before August 26, 2017, certain poles located on Camp Wokanda broke or fell and
had to be removed; for many years before and on August 26, 2017, the park district had actual
knowledge that said poles, including the pole that injured the plaintiffs, were structurally not
intended to support any appreciable weight, including people in hammocks, as evidenced by
its safety policy and were unsafe for use by fee-paying campers including plaintiffs; and on
August 27, 2017, a camp employee told Torres’s family the plaintiffs’ incident “wasn’t the
first time the camp’s structures had fallen—just the week before, an old rotted tree that hadn’t
been properly removed fell on a tent at one of the campsites.”
¶8 Plaintiffs alleged in counts I and II that, by its acts and omissions regarding the poles, the
park district was utterly indifferent to the safety of people on its property (including plaintiffs)
and consciously disregarded the safety of other people (including plaintiffs). Plaintiffs alleged
that they were injured due to the willful and wanton conduct of the park district in one or more
of the following respects, where the park district:
“a. Failed to provide a safe campsite for use of the plaintiffs;

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b. Showed an utter indifference for the safety of people on their property including
the Plaintiff by having actual knowledge that said poles were unsafe for use by its
patrons in hammocks;
c. Showed a conscious disregard for the safety of people on their property including
the Plaintiff by having actual knowledge that said poles were unsafe for use by its
patrons in hammocks;
d. Allowed an unsafe condition to exist at the campsite being the faulty and unsafe
pole when it had actual knowledge that said pole was faulty and unsafe;
e. Verbally told the Plaintiffs to use said poles without any restrictions when the
Defendant knew or should have known that said poles were unsafe for hammock use;
f. Required the Plaintiffs to use a particular designated campsite when it knew or
should have known that it was unsafe;
g. Failed to comply with its own policies and procedures;
h. Failed to comply with its own policy to notify campers, including the Plaintiffs
not to hang a hammock on said poles due to the poles being unsafe;
i. Failed to comply with its own policy to notify campers, including the Plaintiffs
not to hang a hammock on said poles due to the poles being old and rotten;
j. Failed to comply with its own policy to notify campers, including the Plaintiffs
not to hang a hammock on said poles due to the poles never being intended to safely
hold appreciable weight[;]
k. Failed to post any warning signs or any other communication to inform the
Plaintiffs or other patrons of the CAMP WOKONDA policy prohibiting its campsite
patrons from hanging hammocks on said poles;
l. Failed to warn of the unsafe condition of the property;
m. Failed to warn of the unsafe condition of the poles;
n. Failed to provide safe poles for use of the Plaintiffs at the campsite;
o. Failed to inspect said poles;
p. Provided unsafe poles for use of its patrons including the Plaintiffs at the
campsite; and
q. Failed to remove faulty and unsafe poles from the property.”
¶9 Plaintiffs alleged that, as a direct and proximate result of one or more of the aforesaid acts
of willful and wanton conduct of the park district, plaintiffs sustained injuries and losses. For
plaintiff Michael Torres, as alleged in count I, his injuries included broken bones, severe spine
injuries, the need for future surgery, and scarring. For plaintiff Jaimie Gibson, as alleged in
count II, her injuries included broken bones and a punctured lung. Each plaintiff requested a
judgment against the park district in an amount in excess of $50,000.
¶ 10 In addition, realleging the factual allegations contained in counts I and II, plaintiffs alleged
in count III (related to Michael Torres) and count IV (related to Jaimie Gibson) that the park
district violated the Premises Liability Act (740 ILCS 130/1 et seq. (West 2016)) by (a) failing
to provide a safe campsite for use of the plaintiffs, (b) showing an utter indifference for
plaintiffs by having actual knowledge that said poles were unsafe for use by its patrons in
hammocks, (c) showing a conscious disregard for the safety of plaintiffs by having actual
knowledge that said poles were unsafe for use by its patrons in hammocks, (d) allowing an

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unsafe condition to exist at the campsite being the faulty and unsafe poles when it had actual
knowledge that said poles were faulty and unsafe, (e) verbally telling plaintiffs to use said poles
without any restrictions when the park district knew or should have known the said poles were
unsafe for hammock use, (f) requiring plaintiffs to use a particular designated campsite when
it knew or should have known that it was unsafe, (g) failing to comply with its own policies
and procedures, (h) failing to comply with its own policy to notify campers (including
plaintiffs) not to hang a hammock on said poles due to the poles being unsafe, (i) failing to
comply with its own policy to notify campers (including plaintiffs) not to hang a hammock on
said poles due to the poles being old and rotten, (j) failing to comply with its own policy to
notify campers (including plaintiffs) not to hang a hammock on said poles due to the poles
never being intended to safely hold appreciable weight, (k) failing to post any warning signs
or any other communication to inform the plaintiffs of its policy prohibiting its campsite
patrons from hanging hammocks on said poles, (l) failing to warn of the unsafe condition of
the property, (m) failing to warn of the unsafe condition of the poles, (n) failing to provide safe
poles for use of the plaintiffs at the campsite, (o) failing to inspect said poles, (p) providing
unsafe poles for use of its patrons including the plaintiffs at the campsite, and (q) failing to
remove faulty and unsafe poles from the property.
¶ 11 In response to plaintiffs’ second amended complaint, the park district filed a combined
motion to dismiss pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS
5/2-619.1 (West 2016)), which allows a party to move to dismiss a pleading under both section
2-615 of the Code (id. § 2-615 (providing for a dismissal of a pleading which is “substantially
insufficient in law”)) and section 2-619 of the Code (id. § 2-619 (providing for an involuntary
dismissal based upon certain defects or defenses)). In the section 2-615 portion of its motion,
the park district contended that it was immune from negligence liability pursuant section 3-
106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort
Immunity Act) (745 ILCS 10/3-106 (West 2016)) for claims based upon a condition of public
property intended for recreational use unless the park district was guilty of willful and wanton
conduct, and the park district argued the plaintiffs failed to sufficiently allege the park district
engaged in willful and wanton conduct. In further support of its section 2-615 motion, the park
district argued immunity from liability pursuant to section 3-102(a) of the Tort Immunity Act
(id. § 3-102(a)), which places a general duty upon local public entities to maintain its property
in a reasonably safe condition, and the park district argued plaintiffs’ allegations indicated that
plaintiffs’ use of the poles was not a use and plaintiffs failed to allege the park district had
notice of an unsafe condition regarding the poles. In the section 2-619 portion of its motion to
dismiss, the park district argued that plaintiffs’ claim was barred because the park district was
immune from negligence liability pursuant to section 3-106 of the Tort Immunity Act, where
plaintiffs’ allegations did not indicate the park district engaged in willful and wanton conduct
as required by section 3-106.
¶ 12 On April 11, 2019, a hearing on the park district’s motion to dismiss took place. The trial
court found that plaintiffs’ second amended complaint failed to properly plead facts necessary
“to survive the Tort Immunity Act” and granted the park district’s combined motion to dismiss.
¶ 13 Plaintiffs appealed.

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¶ 14 ANALYSIS
¶ 15 Plaintiffs appeal, arguing that the trial court erred in dismissing their complaint. In
response, the Park district argues that the trial court correctly dismissed plaintiffs’ second
amendment complaint as required by section 3-106 of the Tort Immunity Act (id. § 3-106).
¶ 16 A section 2-615 motion to dismiss attacks the legal sufficiency of a complaint, while a
section 2-619 motion to dismiss admits the sufficiency of the complaint but asserts an
affirmative defense or other matter that avoids or defeats the claim. Carr v. Koch, 2012 IL
113414, ¶ 27. Immunity under the Tort Immunity Act is an affirmative matter properly raised
in a section 2-619(a)(9) motion to dismiss. Van Meter v. Darien Park District, 207 Ill. 2d 359,
367 (2003).
¶ 17 As an initial matter, we note that the trial court granted the park district’s section 2-619.1
motion to dismiss with prejudice but did not specifically indicate whether the complaint was
dismissed pursuant to the section 2-615 portion or the section 2-619 portion of the motion.
Accordingly, we will consider not only whether plaintiffs’ allegations are barred by an
affirmative matter avoiding the legal effect of or defeating plaintiffs’ claims under section 2-
619(a)(9) of the Code, but we will also consider the legal sufficiency of plaintiffs’ claims under
section 2-615 of the Code.
¶ 18 Whether the trial court dismissed the complaint pursuant to either section 2-615 or 2-619
of the Code, we accept as true all well-pleaded facts and all reasonable inferences that may be
drawn from those facts, while construing the allegations in the complaint in the light most
favorable to the plaintiff. Floyd v. Rockford Park District, 355 Ill. App. 3d 695, 699-700
(2005). A motion to dismiss should not be granted unless it is clearly apparent that no set of
facts could be proven that would entitle the plaintiff to recovery. Snyder v. Heidelberger, 2011
IL 111052, ¶ 8 (a section 2-619 motion “should be granted only if the plaintiff can prove no
set of facts that would support a cause of action”); Marshall v. Burger King Corp., 222 Ill. 2d
422, 429 (2006) (“a cause of action should not be dismissed pursuant to section 2-615 unless
it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to
recovery”).
¶ 19 In their briefs on appeal, the parties both address the issue of whether plaintiffs were
intended users of the campsite and poles and the issue of whether the park district had actual
notice that the poles were unsafe. Those arguments are irrelevant to this case insofar as those
arguments are made in reference to section 3-102 of the Tort Immunity Act, which codified
the common-law duty of a local public entity to maintain its properly in a reasonably safe
condition. See 745 ILCS 10/3-102(a) (West 2016); Monson v. City of Danville, 2018 IL
122486, ¶ 24.
¶ 20 Section 3-102(a) of the Tort Immunity Act provides:
“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 2016).

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¶ 21 Under the same article—article III, “Immunity from Liability for Injury Occurring in the
Use of Public Property”—section 3-106 of the Tort Immunity Act 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.” Id. § 3-106.
¶ 22 Here, there is no dispute that the property in question was recreational property so that
section 3-106 of the Tort Immunity Act applies. See id.; Murphy v. Springfield Park District,
2019 IL App (4th) 180662, ¶ 49 (section 3-106, and not section 3-102, governs whether a local
public entity is liable for an injury where there is no dispute concerning the recreational nature
of the property). Under section 3-106, the park district is liable for plaintiffs’ injuries only if
the park district is guilty of willful and wanton conduct that proximately caused the plaintiffs’
injuries. See 745 ILCS 10/3-106 (West 2016); Murphy, 2019 IL App (4th) 180662, ¶ 49; Leja
v. Community Unit School District 300, 2012 IL App (2d) 120156, ¶ 10; Dunbar v. Latting,
205 Ill. App. 3d 786, 792 (1993). Because the parties agree that the plaintiffs’ injuries occurred
on recreational property, section 3-106 controls, and the issue of notice is relevant only insofar
as it relates to whether the park district engaged in willful and wanton conduct. See Murphy,
2019 IL App (4th) 180662, ¶ 50. Therefore, we need only address the issue of whether
plaintiffs properly alleged that the park district’s willful and wanton conduct proximately
caused their injuries.
¶ 23 Although the issue of whether a defendant’s actions amounted to willful and wanton
conduct is usually a question of fact for the jury, a court may decide as a matter of law whether
the plaintiff’s allegations of willful and wanton conduct are sufficient to state a cause of action.
Leja, 2012 IL App (2d) 120156, ¶ 11. “Whether conduct is willful and wanton depends on the
circumstances of each case.” Harris v. Thompson, 2012 IL 112525, ¶ 41; see also Barr v.
Cunningham, 2017 IL 120751, ¶ 15 (“[w]e consider the totality of the evidence in determining
whether a defendant’s conduct was willful and wanton”).
¶ 24 Section 1-210 of the Tort Immunity 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 (West 2016). “[A] course of action which *** shows an
utter indifference to or conscious disregard for the safety of others or their property” “
contemplates more than mere inadvertence, incompetence, or unskillfulness.” (Internal
quotation marks omitted.) Leja, 2012 IL App (2d) 120156, ¶ 11. “Illinois courts define willful
and wanton conduct, in part, as the failure to take reasonable precautions after ‘knowledge of
impending danger.’ ” Barr, 2017 IL 120751, ¶ 20 (quoting Lynch v. Board of Education of
Collinsville Community Unit District No. 10, 82 Ill. 2d 415, 429 (1980)). Willful and wanton
conduct differs from mere negligence in that it “ ‘requires a conscious choice of a course of
action, either with knowledge of the serious danger to others involved in it or with knowledge
of facts which would disclose this danger to any reasonable man.’ ” Burke v. 12 Rothschild’s

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Liquor Mart, Inc., 148 Ill. 2d 429, 449 (1992) (quoting Restatement (Second) of Torts § 500
cmt. g, at 590 (1965)). 1
¶ 25 “[C]ourts employing the [Tort Immunity] Act’s definition have found willful and wanton
conduct to exist where a public entity knew of a dangerous condition yet took no action to
correct the condition [(see, e.g., Muellman v. Chicago Park District, 233 Ill. App. 3d 1066,
1069 (1992))], where a public entity was aware of prior injuries caused by a dangerous
condition but took no action to correct it [(see, e.g., Carter v. New Trier East High School, 272
Ill. App. 3d 551, 557-58 (1995))], and where a public entity intentionally removed a safety
feature from recreational property despite the known danger of doing so [(see, e.g., Benhart v.
Rockford Park District, 218 Ill. App. 3d 554, 559-60 (1991))].” Leja, 2012 IL App (2d)
120156, ¶ 11. In Benhart, for example, the Appellate Court, Second District, held that a patron
of a water park sufficiently stated a cause of action for willful and wanton conduct by the park
district by alleging the owner of the water park intentionally removed nonslip strips from a
wave pool despite knowing the wave pool was slippery without the strips. Benhart, 218 Ill.
App. 3d at 559-60.
¶ 26 In this case, the allegations in plaintiffs’ second amended complaint indicated that, in 1975,
the park district purchased the campground from the Boy Scouts with the wooden poles in
place on the property at that time, so that the park district knew that the poles were at least 42
years old at the time of the incident. In erecting the poles, the Boy Scouts knew the poles were
not safe to support any appreciable weight and had implemented a policy indicating the poles
were not safe to support any appreciable weight. At some point after purchasing the
campground from the Boy Scouts, the park district implemented a similar policy prohibiting
erecting hammocks, or any other objects, from any structure on park district property, and it
can be inferred that policy included a prohibition on hanging a hammock from the poles at
issue in this case. It can also be reasonably be inferred from the allegations that the park district
established this policy, at least in part, for the safety of its patrons because the park district
knew that the poles at issue were at least 42 years old and had not been originally erected to
bear any appreciable weight, even though the poles appeared sturdy enough to do so.

1
“The Restatement avoids the use of the term ‘willful and wanton,’ characterizing all such conduct
as ‘reckless.’ ” Burke, 148 Ill. 2d at 449 (citing Restatement (Second) of Torts § 500, Special Note
(1965) (providing, “[t]he conduct described in this Section is often called ‘wanton or willful
misconduct’ ”). Comment g of section 500 of the Restatement (Second) of Torts provides:
“Reckless misconduct differs from negligence in several important particulars. It differs from that
form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure
to take precautions to enable the actor adequately to cope with a possible or probable future
emergency, in that reckless misconduct requires a conscious choice of a course of action, either
with knowledge of the serious danger to others involved in it or with knowledge of facts which
would disclose this danger to any reasonable man. It differs not only from the above-mentioned
form of negligence, but also from that negligence which consists in intentionally doing an act with
knowledge that it contains a risk of harm to others, in that the actor to be reckless must recognize
that his conduct involves a risk substantially greater in amount than that which is necessary to make
his conduct negligent. The difference between reckless misconduct and conduct involving only
such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk,
but this difference of degree is so marked as to amount substantially to a difference in kind.”
Restatement (Second) of Torts § 500 cmt. g, at 590 (1965).

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¶ 27 The fact that the poles appeared sturdy is indicated by, or could be reasonably inferred
from, the photographs of the poles, which included a photograph of the fallen pole with
eyehooks and nails attached to it (suggesting various items were previously safely secured to
the pole without the pole falling), and from the facts alleged that plaintiffs had secured their
hammock to the poles and attempted to sit in the hammock together. Despite the park district
having a safety policy in place prohibiting such use of the poles, the park district (through its
agent or employee) allegedly specifically told plaintiffs the poles “were there for any camping
or recreational purpose they so desired” without any qualification or indication that doing so
would be against the park district’s policy. Similar to Benhart, the allegations in plaintiffs’
second amended complaint indicated that the park district had a safety feature in place (a policy
of prohibiting certain uses of the poles) but removed that safety feature by telling plaintiffs the
poles could be used for any purpose without informing them that doing so would be against its
policy. See id.
¶ 28 Given these allegations, we cannot say that it is clearly apparent that there is no set of facts
that could be proven that would entitle the plaintiffs to recover. Accepting the allegations in
the second amended complaint as true and drawing reasonable inferences from those
allegations, while construing the allegations in the light most favorable to the plaintiffs, we
conclude that plaintiffs sufficiently alleged that the park district engaged in willful and wanton
conduct by alleging a course of action by the park district that showed an utter indifference to
or conscious disregard for the safety of plaintiffs that proximately caused plaintiffs’ injuries.
See 745 ILCS 10/1-210 (West 2016). Therefore, the trial court erred in granting defendant’s
section 2-615 motion to dismiss. See 735 ILCS 5/2-615 (West 2016).
¶ 29 Additionally, based on the facts alleged, we cannot say that the park district is immune
from liability as a matter of law pursuant to section 3-106 of the Tort Immunity Act. See id.
§ 2-619(a)(9) (allowing an involuntary dismissal of a plaintiff’s claim where the claim is
“barred by other affirmative matter avoiding the legal effect of or defeating the claim”). The
“affirmative matter” asserted in a section 2-619(a)(9) motion to dismiss must be apparent on
the face of the complaint or be supported by affidavits or certain other evidentiary materials.
Van Meter, 207 Ill. 2d at 377. Once a defendant satisfies the initial burden of going forward
on the section 2-619(a)(9) motion to dismiss, the burden shifts to the plaintiff to establish that
the alleged defense is either unfounded or requires the resolution of an essential element of
material fact before it is proven. Id. If, after considering the pleadings and affidavits, the trial
judge finds that the plaintiff has failed to carry its shifted burden of going forward, the motion
may be granted. Id. On appeal from a section 2-619(a)(9) dismissal, the reviewing court must
consider whether a genuine issue of material fact existed to preclude the dismissal or, absent
such an issue of fact, whether dismissal is proper as a matter of law. Id. at 377-78.
¶ 30 In this case, the legal sufficiency of plaintiffs’ allegations was admitted by the park district
in regard to its section 2-619(a)(9) motion to dismiss. See Carr, 2012 IL 113414, ¶ 27 (a
section 2-619 motion to dismiss admits the sufficiency of the complaint but asserts an
affirmative defense or other matter that avoids or defeats the claim). The park district raised,
as an affirmative matter, its statutory immunity from liability under section 3-106 of the Tort
Immunity Act, arguing that the conduct alleged in plaintiff’s complaints involved acts or
omissions that did not equate to willful and wanton conduct. However, the affirmative matter
asserted by the park district (immunity pursuant to section 3-106 because the park district did
not engage in willful and wanton conduct) is not apparent on the face the complaint where a

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genuine issue of material fact remains as to whether the park district did in fact engage in the
willful and wanton conduct alleged by plaintiffs. See Murray v. Chicago Youth Center, 224
Ill. 2d 213, 245-46 (2007) (holding as a matter of law that the complaint alleged sufficient facts
of the defendants’ willful and wanton conduct to create a jury question).
¶ 31 As noted above, the plaintiffs sufficiently alleged a set of facts from which, if proven, a
jury could find the park district engaged in willful and wanton conduct that proximately caused
plaintiffs’ injuries. See Monson, 2018 IL 122486, ¶ 15 (since the Tort Immunity Act is in
derogation of the common law, we must construe the Act strictly against the public entity
seeking immunity). Consequently, the park district did not meet its burden of establishing its
affirmative defense under section 3-106 of the Tort Immunity Act. See Van Meter, 207 Ill. 2d
at 377.
¶ 32 For the above reasons, we conclude the trial court erred in granting the park district’s
combined motion to dismiss with prejudice.

¶ 33 CONCLUSION
¶ 34 The judgment of the circuit court of Peoria County is reversed, and this cause is remanded
for further proceedings.

¶ 35 Reversed and remanded.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4680003. Public record. Not legal advice.