Brian J. Peterson v. State of Illinois

ORDER

Birnbaum, J. THIS MATTER is before the Court upon a recommendation from Commissioner Buford following an evidentiary hearing held on September 13, 2011. Claimant, Brian J. Peterson, filed his Complaint sounding in negligence on February 22, 2010 arising from an August 4, 2009 incident while he was riding his bike at Moraine Hills State Park. He seeks reimbursement for medical expenses related to this injury.

Facts

On August 4, 2009, Claimant was riding his bicycle on a paved path in Moraine Hills State Park in McHenry, Illinois. More than ten miles of trails make Moraine Hills State Park popular for hikers, skiers and cyclists. Annually, Moraine Hills State Park hosts 70,000-90,000 visitors, half of which are bicyclists. Three trails, surfaced with crushed limestone, wind their way through the park, offering scenic and wildlife viewing opportunities. Within Moraine Hills State Park, Claimant was on the 3.7 mile "red trail", known as The Lake Defiance Loop. While [*283] on this trail, Claimant alleges he was thrown from his bicycle while riding down a double winding hill where he encountered uneven pavement. The uneven pavement consisted of three cracks, apparently caused by tree roots pushing through the asphalt. This raise in pavement was estimated to be between one and two inches in height. Consequently, Claimant suffered from an AC phase three separation of his left shoulder which tore the ligaments in several areas of the left shoulder.

On June 17, 2010, Respondent filed a Motion to Dismiss pursuant to the Recreational Use of Land and Waters Areas Act, 745 ILCS 65/1, et seq. and the the "State Parks Act", 20 ILCS 835, et seq. On April 14, 2011 this Court denied Respondent's Motion to Dismiss. The Court denied Respondent's Motion because the Recreational Use of Land and Waters Areas Act did not apply to Claimant's 2009 injury, as the Act was amended in 2005 to include only hunting incidents. Before the 2005 amendment, the definition of "recreational or conservation purposes" was "any activity undertaken for conservation, resource management, exercise, education, relaxation, or pleasure on land owned by another." 745 ILCS 65/2. Effective August 18, 2005, an amendment by public act 94-625 changed the definition of "recreational or conservation purposes" to include the current language: "entry onto the land of another to conduct hunting or recreational shooting or a combination thereof or any activity solely related to the aforesaid hunting or recreational shooting." Id. Clearly, as Claimant's activity on August 4, 2009 failed to involve a hunting or recreational shooting incident, this Court denied Respondent's Motion to Dismiss pursuant to the Recreational Use of Land and Waters Areas Act.

Additionally, in the June 17, 2010 Motion to Dismiss Respondent argued that the "State Parks Act" required the Department of Natural Resources to "conserve the original character as distinguished from the artificial landscaping of such parks." 20 ILCS 835/3. Based on this [*284] language, Respondent asserted that the tree roots are a natural feature of the land and thus, must be maintained as the natural character of the park. However, this Court held that the Department of Natural Resources has the power and responsibility to maintain the State parks, specifically the paths and trails, alongside preserving their natural character pursuant to Section 4 of the State Parks Act. 20 ILCS 835/4. Thus, this Court denied Respondent's Motion to Dismiss because the State Parks Act failed to apply to Claimant's 2009 injury. The case was remanded to the Commissioner for further proceedings.

On September 13, 2011, a hearing was held before Commissioner Buford. In addition to Claimant, the witnesses who testified at the September 13, 2011 hearing were the Superintendent from Moraine Hills State Park and a Conservation Police Officer overseeing the Park's district.

The Moraine Hills State Park superintendent, Greg Kelly, has held the position of superintendent for eight years and his duties range from administrative responsibilities to personally supervising the maintenance and upkeep of the Park. Mr. Kelly testified he regularly checks the trails as part of his duties and also utilizes the trails for his personal recreational enjoyment. Specifically, he testified the cracks allegedly causing Claimant's injury were not hazardous and that he, and other Park visitors, frequently bicycle the trails without incident. Additionally, Mr. Kelly testified that no one has previously complained regarding the trail's cracks and park maintenance is ongoing.

At the time of trial, Conservation Police Officer Mike Lyne had worked for the Illinois Conservation Police for 23 years and had specific law enforcement duties relating to Moraine Hills State Park since 1990. Officer Lyne testified that the cracks allegedly causing Claimant's injury were not distinguishable in regards to the rest of the trails in Moraine Hills. Additionally, Officer Lyne testified that he did not consider the condition dangerous or one that should be normally reported to the Department of Natural Resources.

[*285] Analysis

In order for Claimant to recover against the State, he must prove by a preponderance of the evidence that the State owed him a duty, the duty was breached by a negligent act or omission, and that such negligence was the proximate cause of his injuries. Ondes v. State, 43 Ill. Ct. Cl. 272 (1991). The State of Illinois owes a duty to the public to exercise reasonable care in establishing, maintaining and supervising its parks. Kami v. State, 21 Ill. Ct. Cl. 467 (1953); Wightman v. State, 32 Ill. Ct. Cl. 546 (1978). Additionally, in Pearlman v. State, 33 Ill. Ct. Cl.

28, 31 (1979), the Court 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."

In Lyons v. State, 39 Ill. Ct. Cl. 192 (1987), a park visitor was injured when her foot became caught in a hole on a platform near a wooden stairway at Blackhawk State Park in Rock Island. Recovery was disallowed, as the Court concluded the defect was minor, park employees made routine inspections prior to the incident and that there are some risks inherent in hiking.

Id. at 194. This Court finds an analogous fact pattern in the present case. In this case, the evidence shows that the defect in the trail allegedly causing Claimant's injuries was 1-2 inches in height. From this evidence and the testimony of witnesses, it appears that the alleged defect at best, would be construed to be a minor defect on the trail. Di minimis or slight defects are not actionable in that no one would anticipate danger from such minor defects. Putman v. Village ofBensenville, 337 Ill. App. 3d 197, 786 N. E. 2d 203 (2003). Because the State is not an insurer it cannot be expected to remove all risks of accidents which may occur in the absence of negligence. Kamin v. Illinois, 21 Ill. Ct. Cl. 467 (1953). Both Officer Lyne and Site [*286] Superintendent Kelly testified that small obstacles may appear on the trail and that it is important for a bicycle rider to proceed at a reasonable speed to keep the bicycle under control. This Court is of the opinion that bicycle users and hikers utilizing trails within the Moraine Hills State Park must be said to assume some risk inherent with the sport. Additional testimony indicates no visitors complained about the area prior to Claimant's accident and that maintenance of the area and surrounding trails is ongoing by park officials. The burden is upon the Claimant to prove by a preponderance of the evidence that the State breached its duty of reasonable care. The evidence and testimony at trial clearly shows that Respondent's agents had no notice of the alleged dangerous condition and did not breach their duty to exercise reasonable care in the maintenance of the Moraine Hills State Park. It is the opinion of the Court that Claimant has not shown by a preponderance of the evidence that the State was negligent.

IT IS HEREBY ORDERED that for the above reasons, this claim is DENIED.