mistakenly concluded that you had to have only actual knowledge instructed knowledge would not be enough to prevail on a willful and wanton killing because of that it never really is founded at best in its mind it was constructive  e indicated the interest is and first i want to say that it's clear in illinois law that you can have actual or constructive notice for willful want and want a claim against a municipality we see that with solomon we see that with momentum you see signs with interest as well first of all we know the condition existed the day of the accident we know the condition existed at the time of the last two inspections at least and we know that because  that's true but there had never been a prior incident and mcdermott there had never been a prior incident in sullivan there had never been a fire incident and more and more land specifically they went out to inspect or they were looking in eight they knew they  knew that some pipe covers were missing from some pipes and they didn't do a good job they did a partial job in this case they knew that it potentially dangerous condition a pinch point which is often published your point w but they did not know that that particular pipe that the plaintiff brought injured on had that dangerous condition they only knew there is a general principle that some of their some of their pipes for missing covers but in our case we holes for addition or there's screws attached but they're not to be used with the difference between that and this if i i don't know you have to show the other indifference or reckless disregard because you knew or should have known because the condition was there long enough in this case for months it was obvious it's clear it was obvious from the photographs that all of the testimony of the three the foot out but if she's pulling it out the person is going down on her bones skin of course is now a horse and she slides it out so it's an obvious danger is a great risk rather better it's only two inches and rather it's mubarak i mean you can get a finger that was defective now there they had actual notice but the point is the court said the burden the risk is so great of children being hit hurt by playground equipment it's such a great risk that the plate the municipality needs to carefully keep the polling place or something like that so they knew they knew everything they would possibly need to know to discover this there isn't anything they didn't need to know to discover this they had gotten information from  the playground industry they'd been to safety seminars they knew they had quit and that had this condition on it they were out there checking for this can get a thing if they were checking for it it would have been impossible absolutely impossible not to see saying that this should have been discovered and the legislature saw fit to save this duty of the of the agency to maintain its property however it made an exception for recreation pro plaintiff's own allegations in the plaintiff's argument in their brief because it goes directly justice where you were pointing out which is what the plaintiff is really attempting to do here is to collapse negligence with willful and wanton in paragraph ten and eleven of the third ame complaint the plaintiff essentially says the park district had a reasonable inspection system that system was designed and intended to protect patrons and to find effects and property that's a good thing that's actually evidence of a conscious regard i top of it the plaintiffs says the park district failed to exercise ordinary care by not discovering this condition which no one knows how long it existed i actually think the crux of the plaintiff's argument i'm looking clench reply brief i focus system and you find the problem you're in the clear but if you have an inspection system and you don't find the problem even if you follow it reasonably which is what they're arguing here that should be evidence of willful and wanton in my view of the world that isn't even evidence of negligence the standard is not perfect here in maintaining our property and that's true for any one part districts private property owners it is reasonable care that's the issue the plan of says we did it on reasonably let's accept that as being true i don't agree with it but  being unreasonable is never going to the rise level of willfully want it most it gets you into negligence just sounds again that was the point you raised when you focused on three one two yes the opening section for a public en to encourage the development of recreational property by raising the level to wolf one want standard you have a muti from negligence liability you will be liable for willful and wanton i said to the court i'm not aware of another case and plaintiff has not cited one intentional and actual or deliberate intention cause harm your a conscious disregard or utter indifference there's a key point there by the way the word recklessness nowhere up here is in the torah mutal the definition but the legislature in one thousand nine hundred eight it really can things and they were in tandem they amended three want to wait which used to be an absolute immunity for supervision and they installed a willfully want an exception the reason why they did that was in response to i call the slippery slope a little more than negligence a little less than intentional it just depends that's the common law standard the legislature said we're going to do away from that we want the courts to focus on the statutory definition and one to ten the reason why going to  cited more than ten cases that there must be twenty out there but i focused on ones that deal with conditions of recreational property and each one of those cases it might have argument were correct each one of those would have to be reversed we couldn't have the parallel case stand for what it stands for where the public entity knows of the defect and directs a great school child just like this child to run for speed toward that known defect in the court says even that set of facts is not enough to rise to the heightened level to establish that's also true in the really case where you have the mass repeatedly fall the public entity creates the condition by putting the mats up knows they repeatedly fall onto a field of play and yet allows the mass of the state on the planet trips over them or says even that set of facts and that was on the pleadings is not enough to step one back into this case when we look at what the facts are we have in these run disputed in fact the point of please we have in a special system that we regularly follow it's done on a monthly the testimony was that the park district had a no other piece of spring equipment this piece of equipment here this is in the records of two springs and several of these brackets are are up underneath right here in this becomes important because the plan of saying well they should have seen if they did the inspection adequately they would have seen dennis conway the park district employee read his testimony dennis conway who  inspections on a monthly basis would say i don't want to b s and make it go up and down with your seat and here you can't see in here he didn't know that this was separating and i got by the way that that settling over two inches that's in the park they've got an animal it's up on top of a single spotlight that's back and forth there they absolutely knew that there were clips at the top of the spring because this one had to be connected to the bottom of the animal here what they've got is actually the foot from this bar going across she says playground on a regular basis and the park district saw employees say this never performed differently then in any point in time the child who was on here taylor tag lior says that every time she'd been on it at work the same as the day she'd been at it when occurred so you have no indication from the equipment that there was something flapping or falling off or broken the equipment is operating properly and that's critical because the park district is inspecting there's no reason to believe that there's anything wrong act on the safety of these children are they saying that they are arguing that and i find that interesting argument for this reason that doesn't transform itself basically into a conscious disregard how annoying that one handed spat utter indifference or a conscious disregard for the safety of others absolutely how can you have an inspection system and actually go out to a hands on inspection document that inspection on a regular basis question of that i disagree for several reasons one before this occurrence there with let's take the definition out of one for you know i'll get back to the other reasons too definition out of when free i do good work and i want conduct and this is nothing new you either have actual notice or knowledge that there's a omission sufficient i don't personally believe so because an actor with a mission would never rise to the level of a course of action justice justice filled right at the most recent case he waited acts of omission with willful and want he said in the went through an analysis and he pleaded it to the crime of call it talk in terms of in the criminal court of course we have standards of attentional knowledge we have recklessness we have negligence and he and he related to  which is why i started out that's precisely why all of that discussion is well and good it doesn't control in this case number one and number two i get back to you in my view in my reading of one to ten if you are doing an inspection system which is to be encouraged that's the whole point of adopting the tort of encourage public interest give them immunity from liability but encourage them that's both and free want to be if you have an inspection system you show that it could have that it could have found it then you can't be constructive notice we didn't raise that here we didn't need to and then under three one o six which says even if you had all of that you might have negligence it's never going to get to  should you not if in the course discovered this if you seemed and twenty thirty facts let's go with that first of all we all know that the only testimony in this case with regard to ever be willful and wanton conduct us their fight the mere fact of inspecting they're showing a conscious regard for the safety of patrons from that argument would be better off had the park district never inspected nothing requires them to inspect it in fact  stephen king who designed this piece of equipment he's the essential the owner he's the chairman of the board of landscape structures he said these things can be inspected we recommend on either a monthly a semi monthly or an annual basis depending on the usenets up the individual entity under the manufacturer's own view of how often this should be inspected and remember this was touched on previously actually by just smith when this was installed at the park district l s i landscape structure said we intend these bolts to stay there forever that's why that actually don't send us the diagram for the internal part of assembly as they put it on the block knots and he testified we expect those are going to be there we've actually never had this issue come up inspections but they drive by from two miles away and say oh yeah i did it or i flew a helicopter over shot at some point i would say that the argument get certified out there that i have to say conceivably you could have that no reported cases ever going there i'm not aware of a set of facts that's ever been litigated with that type of a very very far out scenario but if we're staying within the realm of an act with when it's allegations are her best ten eleven of their thought or many complaints the park district had an adequate inspection system the plaintiffs repeatedly argue throughout their brief it was adequate it was reasonable they just should have done a better job the should have done a better job maybe enough to raise a question of fact on negligence it will never be enough to respond in fact that will fill in one and one more thing to throw on top of that if that argument were true the script would have to disregard overturned how we look at it when for example where they have a gaping hole in the fence in the allegation is the park district had actual notice of it or palmeiro where they have the who's broken asphalt there's no dispute orchestra at her there was a school district had actual notice of it and if those cases are going off for willful and what were you what actual notice of the problem how could you ever have it logically where the plan of says you failed to said yes so if the legislator has said constructive or actual is a not for willful and wanton under the definition in the toward immunity act and nothing has changed in terms of what's been done to that language s the nine hundred eighty six amendment then the legislative intent is clear now we can see that when we look at some of them for example where there was the case the opinion says really we don't care what the actual or if it's instructive to god either you're allowed to go on will form one they talk about what they knew or board meeting what they didn't do but in an essence they said you either have actual or constructive here so it's good enough to go now over it so i think a judge our analysis is opinion although it's a not a m obvious to the user id the and went through the person who's inspecting the offense that he should have seen for himself we're talking about something a child would never know about and we are talking about a repeat repeated the idea and i it's interesting that the can't see these the roust and missing boy will if you compare that picture to what this thing looks like repaired it's so obvious you can see the ball are in the bowl the clamp is right there it's very very obvious and we're looking at it in a black and white photo here and we're not even looking at it right there that's a close up there is the missing part and there are the missing parts in there you can see it and it is the repeat