Jonathan Miller v. Illinois Department of Natural Resources

ORDER

Jann, J.

This claim is before the Court following an evidentiary hearing on October 19, 2006, before the assigned Commissioner.

Claimant, a minor, by his father, James R. Miller, filed his complaint for $100,000 in damages for injuries sustained in a bicycle accident at Argyle State Park (hereinafter referred to as the “Park”) on September 9, 1996.

The Claimant alleges the Illinois Department of Natural Resources (hereinafter referred to as “DNR”), “willfully and wantonly” failed to maintain and control the “Park” by placing exposed “rebar” from “riprap” or concrete barriers in a recreational area the Respondent knew, or should have known, was frequented by both children and adults on bicycles. The concrete barriers were placed along a water runoff area, away from the bicycle path, to prevent flooding and soil erosion following heavy rains. Respondent alleges the Claimant assumed the risk while traveling at excessive speed, lost control of his bicycle, left the bicycle path and ventured into a drainage area clearly not intended for bicycle riders. Claimant filed the present complaint with the Court of Claims on March 12, 1998.

FACTS

[*209] At the hearing, Claimant presented undisputed evidence that he suffered substantial injuries with medical bills in excess of $100,000, as a direct result of racing his bicycle downhill and running off the bicycle path and falling into the drainage area. The Respondent produced Tom levy, Public Service Administrator at Starved Rock State Park, as a witness who testified that the bicycle path in question was regularly used for bicycle enthusiasts with a posted speed limit of 10 miles per hour. He further testified that “riprap” or concrete barriers were installed at the “Park” to prevent flooding and soil erosion due to heavy rains. He further testified that “rebar” or iron bars were not regularly removed from “riprap”. He further testified that approximately 300,000 people visit the park on an annual basis and to his knowledge and recollection, no other accidents of this nature have been reported to the park service.

Claimant produced Ty Arnold, longtime friend of Jonathan Miller, who testified Claimant was training for an upcoming bicycle race and while racing downhill fell off the bicycle path and ran into the “riprap” and “rebar” material sustaining multiple injuries. Claimant also produced, Charles Scott Carpenter, a professional engineer with the Illinois Department of Transportation (“IDOT”). He testified that “IDOT” is responsible for all roads and bridges in the State of Illinois and has specifications for the use of “riprap”. He further testified that exposed “rebar” is usually removed from “riprap”. Counsel for the Respondent objected to this testimony as irrelevant to the issue of how “DNR” maintains its parks. The Commissioner sustained Respondent’s objection because “IDOT” is a separate agency and is not responsible for maintaining parks under “DNR” management. Claimant also produced James Bragdon, as his expert witness who testified Respondent’s erosion control methods were evidence of a “willful and wanton” breach of the standard of care owed users of the States Parks.

ISSUE

Did the use of “riprap’, with exposed “rebar” material, constitute a “willful and wanton” breach of the standard of care by Argyle State Park and the Illinois Department of Natural Resources (“DNR”) and as such, was the use of such material the proximate cause of Claimant’s injuries?

[*210] LEGAL ANALYSIS

The law is well settled that visitors to State parks are invitees to whom the State owes a duty of reasonable care in maintaining the premises. Wrightman v. State (1978), 32 Ill Ct. Cl, 546-547. The Court further stated that “this Court has held that the State of Illinois is not the insurer of safety of persons who visit its parks and recreation areas” In Pearlman v. State (1979), 33 Ill Ct. Cl 28,31, the Court again reiterated that,

“The State of Illinois is not an insurer and before the Respondent can be liable for Claimant’s injury it must be shown by the preponderance or the greater weight of the evidence that a dangerous and defective condition existed*** and that the Respondent knew or should have known of said defective and dangerous condition”

Claimant has alleged, in his Amended Complaint, that the Respondent’s conduct was “willful and wanton” Sherman v. State, 61 Ill Ct. Cl. 230 (1998). To prevail upon the merits of his claim, Claimant must prove by a preponderance of the evidence that by its methods of providing erosion control by using “riprap” and “rebar” materials, Respondent acted in a “willful and wanton” manner thereby breaching the standard of care owed to Claimant.

In the Sherman case, an injured bicyclist’s claim was denied after he struck a cable wire strung across a bike trail. The Court held that a “willful and wanton” injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure after knowledge of impending danger, to exercise ordinary care to prevent it, or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care. Under Sherman, Claimant must prove that Respondent either knew or failed to discover that its erosion methods were a danger to intended users of the roadway as a result of recklessness or carelessness.

In the case at bar, Ty Arnold, (Claimant’s friend) testified Claimant was preparing for a bicycle race at the “Park” and was racing downhill exceeding the posted 10 m.p.h. speed limit. Due to his excessive speed, Claimant lost control of his bicycle, fell off the road and into the “riprap” and “rebar” erosion control drainage area. He further testified both he and Claimant used this bicycle path on at least 20 other occasions. Tom Levy (Administrator of Argyle State Park) testified that over 300,000 people visit the “Park” annually and no incidents [*211] or injuries of this nature had been reported to the park service. Mr. Levy further testified that “DNR” staff placed the “riprap” material in the drainage ditch in an effort to control flooding and soil erosion.

The Respondent has asked the Court to consider the case of DiBenedetto v. Flora Township, 153 Ill 2d. 66, 605 N E 2nd 571, 178 Ill Dec 777 (1992). In DiBenedetto, the Illinois Supreme Court upheld the trial court’s decision that the burden which would be imposed upon the State to make roadside drainage ditches safe for motorists who stray from the traveled way was of such a great magnitude that no duty was owed to plaintiff. The drainage ditch was there to protect against flooding and not designed for traffic. The court held that the proximate cause of the accident was not the ditch, but the loss of control of the vehicle by the driver going off road.

Here, Claimant by traveling at excessive speed, lost control of his bicycle and fell into a drainage area not intended for bicycle traffic. There is no persuasive evidence that use of the materials at issue to prevent erosion was a danger to persons using the roadway at the speeds posted, or that an accepted standard of care for similar purpose in a State Park was violated. Claimant’s expert testimony as to IDOT practice and protocol for roadways used for general travel versus the limited recreational purpose intended for roadways in most State Parks, is not pursuave to the facts presented. The intent of a natural preserve is to maintain the most “natural” flora and fauna possible without the installation of standard roadways with wide shoulders, drainage culverts in shiny galvanized ribbed metal sticking out of bucolic settings, flashing lights to remind the careless that when one climbs to the top of a cliff, there is a probable danger if one chooses to ignore the obvious, and there is a plausible and persuasive argument that if one chooses to venture into areas posted as restricted or use the roadways in a manor directly and specifically prohibited, one is at his personal peril for the consequences of his own acts. One, even if a minor, is generally deemed to have sufficient mental capacity to ascertain normal risks under Illinois law, unless there is proof of special and verifiable naiveté or diminished capacity of record for a person of the Claimant’s age and experience.

Claimant’s witness also testified that he and Claimant were familiar with the alleged danger from numerous prior outings on the same path, and that Claimant was clearly traveling in excess of reasonable speed given the posted limit, and failed to exercise due care for his personal safety on the facts of record. As such, the proximate cause of Claimant’s injuries was not the “riprap” or “rebar” material, but Claimant’s inability to exercise [*212] control of his bicycle while traveling downhill at excessive speed and as a direct result, he fell off the bicycle path into the drainage ditch area. Claimant was not riding a bike for the first time, nor riding this path for the first time.

He was racing and had done so previously in abrogation of known speed limits and observed danger for the acts he undertook, and had a reasonable expectation of injury if he chose to abuse and misuse the provided amenities of the Park for the purposes intended for invitees.

WHEREFORE, Claimant has failed to prove by a preponderance of the evidence that Respondent acted in a “willful and wanton” manner by intentionally creating a dangerous condition with a reckless disregard for the safety of others.

IT IS HEREBY ORDERED that this claim is denied and dismissed with prejudice on the merits.

Claimant’s claims presented under ordinary negligence were previously dismissed on Respondent’s Motion under the Recreational Use of Land and Waters Act as is referenced in the record. This cause is denied and closed.

ORDER

Jann, J.

This cause is before the Court on Claimant’s Motion for Rehearing after denial of his claim and Respondent’s Objections with a Response by Claimant.

Claimant asserts that the Court failed to consider all evidence in its decision denying the claim. We conclude Claimant has not presented evidence or law to compel a rehearing after review.

It appears Claimant has not accepted the legal consequences of admissions and proofs or the required standard for proof of willful and wanton neglect by a State Park.

Simply put, Claimant now attempts to impute an extraordinary duty of care owed him because he was practicing for a bike race in the future.

The race was granted a permit for limited use. Claimant was not on September 6, 1996.

[*213] Claimant’s Motion for Rehearing is DENIED after review, and our Opinion of denial of the underlying claims and dismissal with prejudice is AFFIRMED and this cause is closed.