
No. 3-02-0679





IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

MICHAEL ROBINSON, as Special Administrator of the Estate of Jennifer Robinson, deceased, AMY PYSZKA, and DANIEL KOCH,



Plaintiffs-Appellees,



v.



ILLINOIS POWER COMPANY, a utility corporation,



Defendant-Appellant.

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Appeal from the Circuit Court

of the 13th Judicial Circuit LaSalle County, Illinois







No. 01-L-139







Honorable Eugene P. Daugherity,

Judge, Presiding





JUSTICE LYTTON delivered the opinion of the court:







Plaintiffs sued defendant, Illinois Power Company, alleging that its negligent conduct caused them injury when their snowmobiles collided with support wires owned by Illinois Power.  Illinois Power filed a motion to dismiss based on language in the Snowmobile Registration and Safety Act (Act), which provides that a land owner, lessee, or occupant is liable only for willful or malicious conduct.  The trial court determined that Illinois Power was not an owner, lessee or occupant and denied the motion.  Illinois Power sought leave to appeal under Rule 308, which the trial court granted.  We reverse and remand.

FACTS

Plaintiffs were snowmobiling through a field and struck a support wire, which anchored the top of a tall, wooden pole to the ground.  The pole is one among a system of poles which carry electrical transmission lines across the countryside.  Illinois Power owned the pole, the support wires and the electrical lines.  The plaintiffs suffered injuries, and one of them subsequently died.  The pole and lines were erected in 1948, and Illinois Power has maintained them ever since.  Illinois Power is not an owner or lessee of the property on which the pole and lines existed.	  

The plaintiffs sued Illinois Power alleging negligence.
(footnote: 1) Illinois Power filed a motion to dismiss arguing that it owed no duty to plaintiffs under the Act.  The court denied the motion and granted leave to file this interlocutory appeal under Supreme Court Rule 308. 

ANALYSIS

Since this case involves the construction of a statute, our review is 
de novo
.  
People ex rel. Birkett v. City of Chicago
, 202 Ill. 2d 26, 46 (2002).

The Act provides that snowmobilers have no action in  negligence against owners, lessees, or occupants of property:

"[n]otwithstanding any other law to the contrary, an owner, lessee, or occupant of premises owes no duty of care to keep the premises safe for entry or use by others for snowmobiling, or to give warning of any condition, use, structure or activity on such premises ***.  Nothing in this section limits in any way liability which otherwise exists for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity."  625 ILCS 40/5-1(I) (West 2002).

Since both parties in this case agree that Illinois Power is neither an owner nor a lessee, the issue is whether it is an "occupant."

Since the Act does not define occupant, we look to the statute to derive the best indication of the legislature's intent, and we must ascribe ordinary meaning to the Act's terms.  
In re Judgment &  Sale of Delinquent Property for Tax Year 1989
, 167 Ill. 2d 161, 168 (1995).  Where a statute's language is clear and unambiguous, we apply the plain and ordinary meaning of the terms.  
Board of Education of Rockford School District No. 205 v. Illinois Educational Labor Relations Board
, 165 Ill. 2d 80, 87 (1995). 

 An occupant need not have ownership rights in the property.  See 
S.I. Securities v. Weatherly
, 285 Ill. App. 3d 930 (1997) (analyzing the term "occupant" under the Property Tax Code and finding that it does not require any ownership interest in the property).  Black's Law Dictionary defines occupant as "[o]ne who has possessory rights in, or control over, certain property or premises."  Black's Law Dictionary 1106 (7th
 ed. 1999).  We think this is a reasonable definition of an occupant under the statute. One who exercises control over property can be said to occupy it.  Here, Illinois Power installed and owned the pole and wires, and maintained them for 55 years.  We believe these facts indicate a sufficient amount of control over the property to consider Illinois Power an occupant under the Act.  

Moreover, the Act illustrates our state's policy to place the burden to protect snowmobilers on the snowmobilers themselves.  Our supreme court has held that snowmobiles are inherently dangerous instrumentalities and that the legislature acted properly when it determined that no duty exists to keep premises safe for snowmobiling.  
Ostergren v. Forest Preserve District
, 104 Ill. 2d 128 (1984).  

Illinois Power owed no duty to keep the premises safe for plaintiffs, absent willful or malicious conduct.  The trial court erred by denying Illinois Power's motion to dismiss.    

CONCLUSION

The order of the circuit court of LaSalle County is reversed and the cause remanded for further proceedings under the willful and malicious counts of the complaint.

Reversed and remanded.

SCHMIDT and SLATER, JJ., concur.

FOOTNOTES
1:Plaintiffs subsequently amended their complaint to add counts alleging willful or malicious conduct.


