Kenneth Lowe Jun. 30, 2014, 2:46pm

The Chicago Park District must post signs in its parks explaining that only children under the age of 12 can use its equipment, a state appeals panel held last week in overturning the dismissal of a lawsuit stemming from a 13-year-old's injury on a slide.

In an unpublished order handed down June 27, the First District Appellate Court reversed Cook County Circuit Judge Kathy M. Flanagan's ruling that tossed the lawsuit Artenia Bowman filed against the park district on behalf of her then-13-year-old daughter.

Determining that Bowman's daughter had violated a park district ordinance restricting those older than 12 from using its equipment, despite the lack of a sign providing such notice, Flanagan granted the park district's motion for summary judgment.

The appeals panel, however, reversed Flanagan's ruling and remanded the case, saying the park district failed to inform parks users the slide at issue was intended for kids under 12 and or cite a case in which a child was charged with knowing municipal ordinances.

Justice Robert E. Gordon wrote the order, with Justices Stuart E. Palmer and William Henry Taylor II concurring.

The appellate court ruling stems from Bowman's lawsuit, amended in March 2012, seeking damages from the park district for an ankle injury her daughter sustained in April 2011 while playing at a park on North Artesian Avenue known as Park 399.

In her suit, Bowman accused the park district of engaging in willful and wanton conduct for its alleged failure to repair a damaged slide at the park.

Bowman's daughter, in her deposition, said she went to Park 399 and played a game of tag with a group of younger friends, including her younger brother. According to the order, "her foot became caught in a hole in the plastic at the bottom of the slide, resulting in a fractured ankle."

The park district filed a motion for summary judgment, arguing that it didn't owe Bowman's daughter a duty because she was not an intended user of the slide as she was 13 and one of its ordinances restricted use of its equipment to kids 12 and under.

It further claimed that “the hole at the bottom of the curved slide was an open and obvious risk that the 13-year-old should have avoided.”

Bowman, in response, alleged the park district had failed to properly establish the park equipment was only to be used by children under 12, the danger created by the hole at the bottom of the slide was not “open and obvious,” and that its failure to repair the slide, after being informed almost a year earlier of the danger, was willful and wanton.

Her allegation over willful and wanton conduct was backed up a nearby resident to the park, who testified in a discovery deposition that he had complained to the city about the condition of the slide, and reached out to Alderman Roberto Maldonado’s office three times asking to have it fixed.

Staff members in Maldonado's office, as well as employees at the park district, testified in depositions that they either saw complaints about the slide or the slide's actual damage as early as 2010.

Flanagan granted the park district's motion for summary judgment, finding that regardless of whether there was a sign, Bowman's daughter was not an intended user of the slide based on the ordinance and the fact she was 13.

As such, she did not address whether the park district's alleged failure to repair the slide was willful and wanton, or if the damage was open and obvious.

Saying that Flanagan was wrong to hinge her decision on whether the 13-year-old was an intended user of the slide, the appeals panel remanded the matter for the trial court to decide the two issues she didn't address dealing with willful and wanton conduct, and open and obvious danger.

Gordon explained the panel reversed the lower court for two reasons.

"First, the defendant does not cite a case where a child was charged with the responsibility of knowing municipal ordinances, without a sign or other notice, nor can we find such a case," Gordon wrote. "Second, defendant failed to inform park users of any age, by any means, that this park and the slide were intended for children younger than age 12."

In regards to the panel's second point, Gordon wrote "Nothing in the record shows that even adult members of the public had any means of knowing that [the Park District] had allegedly designated this particular park for a certain age group."

Gordon said the publication of ordinances is necessary in order for the public to be informed and adjust their conduct accordingly.

While park district code restricts kids 12 and over from playing on playgrounds designed for kids under 12, Gordon noted that nothing in the code stated Park 399 or its slide was designated for kids under 12.

"The [park district] website for the park mentions no age range, only stating: 'This park features a playground and swings and green space. It is an active community park,'" Gordon wrote for the panel.

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