NO. 4-04-0974

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

TYLER MORRIS, a Minor, by MARK MORRIS

and CYNTHIA MORRIS, His Parents and

Next Friends; and MARK MORRIS and

CYNTHIA MORRIS, Individually,

          Plaintiffs-Appellants,

          v.

JOHN D. WILLIAMS; SHERI J. WILLIAMS;

KEVIN W. WILLIAMS; KRISTLE WILLIAMS;

and COVERED BRIDGE ACRES ASSOCIATION,

INC.,

          Defendants,

          and

BART WILSON,

          Defendant-Appellee.	)

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)	Appeal from

Circuit Court of

Sangamon County

No. 01L360

Honorable

Steven H. Nardulli, 

Judge Presiding.

_________________________________________________________________

		JUSTICE APPLETON delivered the opinion of the court:

		Plaintiffs, Tyler Morris, a minor, by Mark Morris and

Cynthia Morris, his parents and next friends, and Mark and

Cynthia Morris, individually, brought an action against

defendants, John D. Williams, Sheri J. Williams, Kevin W.

Williams, Kristle Williams, the Covered Bridge Acres Association,

Inc. (Association), and Bart Wilson, to recover for personal

injuries Tyler sustained as the result of an accident on his all-

terrain vehicle (ATV).  In October 2004, the trial court granted

Wilson's motion to dismiss pursuant to section 2-619 of the Code

of Civil Procedure (Civil Code) (735 ILCS 5/2-619 (West 2002))

and granted summary judgment in favor of all other defendants. 

		Plaintiffs appeal, arguing the trial court erred in granting Wilson's section 2-619 motion to dismiss when he will

fully or maliciously failed to guard or warn against a dangerous

condition on his leased property.  We affirm.   

	I. BACKGROUND

		On September 29, 2001, Wilson harvested soybeans in two

fields he leased from the Williamses and which were located next

to the Covered Bridge Subdivision in Sangamon County, Illinois. 

While working in the larger of the two fields, Wilson discovered

a hole created by erosion from a drainage tile that serviced the

Covered Bridge Subdivision.  Wilson left the area of the hole and

its immediate surroundings unharvested so as not to damage his

combine and to serve as a visual reminder.  As a result, soybeans

were left standing in and around the hole while the remainder of

the field was harvested. 

		On the same day, Tyler, then 13 years of age, drove an

ATV through the recently harvested field.  While in the field,

Tyler intentionally drove his ATV at approximately 30 miles per

hour (mph) into the section of unharvested soybeans in which the

hole was located.  Upon driving into the soybeans, Tyler hit the

hole and wrecked his ATV.  As a result of the accident, Tyler

suffered a broken leg.  Neither the Williamses nor Wilson had

granted Tyler permission to enter the field. 

		In November 2001, plaintiffs initially brought suit to

recover for Tyler's injuries against only the Williamses.  However, throughout the course of litigation they filed five

amended complaints and additionally sought recovery from the

Association and Wilson.  Plaintiffs' fifth-amended complaint

alleged nuisance claims against all defendants, willful and

wanton failure to guard or warn against the Williamses and

Wilson, and negligence claims against the Association.  Specifi

cally relevant to this appeal, plaintiffs alleged Wilson's

actions were willful and wanton, in that (1) by leaving soybeans

surrounding the hole he concealed its existence, (2) he repaired

the hole 6 to 12 times prior to the date of the accident in such

a manner as to ensure its persistence, and (3) he failed to warn

or guard against children becoming involved with or playing near

the hole. 

		The Williamses and the Association filed combined

motions to dismiss and motions for summary judgment (735 ILCS

5/2-619.1 (West 2002)), and Wilson filed a section 2-619 motion

to dismiss (735 ILCS 5/2-619 (West 2002)).  On October 5, 2004,

the trial court entered an order granting "summary judgment to

all defendants on all counts."  Relevant to this appeal, the

court stated "no reasonable juror could correctly conclude that

the conduct of *** Wilson is either willful or malicious." 

Additionally, it concluded that simply because Tyler's actions

may have been foreseeable does not necessarily mean Wilson's

conduct was willful or malicious.  

		On October 22, 2004, the trial court entered an order

clarifying its October 5 order because it had granted summary

judgment in Wilson's favor when he had not so moved.  The court's

October 22 order granted Wilson's section 2-619 motion to dis

miss, stating its decision was based on the same reasoning

outlined in its October 5 order. 

		This appeal followed.	

		II. ANALYSIS

		On appeal, plaintiffs argue the trial court erred by

dismissing their cause of action against defendant Wilson. 

Specifically, they contend that a reasonable juror could find

that Wilson willfully or maliciously failed to guard against or

warn of a dangerous condition on his leased property pursuant to

section 11-1427(g) of the Illinois Vehicle Code (Vehicle Code)

(625 ILCS 5/11-1427(g) (West 2002)).

A. Standard of Review

		Appeals from dismissals pursuant to sections 2-615 (735

ILCS 5/2-615 (West 2002)) and 2-619 (735 ILCS 5/2-619 (West

2002)) of the Civil Code are subject to de novo review.  Rogalla v. Christie Clinic, P.C., 341 Ill. App. 3d 410, 413, 794 N.E.2d 384, 388 (2003).  Additionally, "[t]he question presented by a

motion to dismiss a complaint for failure to state a cause of

action is whether sufficient facts are contained in the pleadings

which, if established, could entitle the plaintiff to relief."  Feltmeier v. Feltmeier, 207 Ill. 2d 263, 267, 798 N.E.2d 75, 79 (2003). 

		Relevant to this appeal, paragraph 3 of Wilson's

section 2-619 motion to dismiss states that counts II and IV of

plaintiffs' fifth-amended complaint "do not state a cause of

action upon which recovery may be obtained for willful and wanton

misconduct, nor are there a set of facts upon which such a cause

of action can be maintained."  For purposes of clarity, we note

paragraph 3 of Wilson's motion to dismiss was not properly

brought under section 2-619.  

		Although Wilson's section 2-619 motion to dismiss did

not state under which subsection it was being brought, a review

of section 2-619 reveals that the only possibility is subsection

(a)(9), which provides grounds for dismissal where the asserted

claim is barred by an "affirmative matter avoiding the legal

effect of or defeating the claim."  735 ILCS 5/2-619(a)(9) (West

2002).  This court has previously held that "a section 2-615

motion challenges a complaint for failing to state a cause of

action, while a section 2-619(a)(9) motion admits the legal

sufficiency of a complaint but asserts that it is barred by some

affirmative matter."  Caruth v. Quinley, 333 Ill. App. 3d 94, 97, 775 N.E.2d 224, 226 (2002).  Thus, paragraph 3 of Wilson's motion

to dismiss should have been brought pursuant to section 2-615

(735 ILCS 5/2-615 (West 2002)).   

		Nevertheless, plaintiffs do not argue on appeal that

Wilson's motion to dismiss was brought under the wrong section of

the Civil Code.  Further, a decision to grant a motion to dismiss

that should have been brought under section 2-615 but was instead

brought pursuant to section 2-619 may nonetheless be upheld by a

reviewing court "on any grounds which are called for by the

record regardless of whether the [trial] court relied on those

grounds or whether the [trial] court's reasoning was correct." 

Caruth, 333 Ill. App. 3d at 97, 775 N.E.2d at 226.  Thus, for the reasons that follow, we affirm the trial court's grant of Wil

son's motion to dismiss as plaintiffs' complaint fails to state a

cause of action upon which relief may be granted. 

B. Willful or Malicious Failure To Guard or Warn

		Generally, owners and occupiers of land do not have a

duty to maintain their property in a way that promotes the safety

of trespassers.  Kahn v. James Burton Co., 5 Ill. 2d 614, 625, 126 N.E.2d 836, 841 (1955).  However, an exception exists where

they know, or should know, that (1) children habitually frequent

the land; (2) a dangerous condition exists on the property; (3)

such condition is likely to cause injury to those children

because, by reason of their immaturity, they are incapable of

appreciating the risks involved; and (4) the expense or inconve

nience of remedying the condition is slight compared to the risk

to children.  Kahn, 5 Ill. 2d at 625, 126 N.E.2d at 842.  In such cases, owners and occupiers of land have a duty to remedy the

dangerous condition or to protect children from it.  Kahn, 5 Ill. 2d at 625, 126 N.E.2d at 842.  

		Nevertheless, if the condition on the land involves

obvious risks that children generally would be expected to

appreciate and avoid, no duty to remedy it ensues.  Corcoran v. Village of Libertyville, 73 Ill. 2d 316, 326, 383 N.E.2d 177, 180 (1978).  Further, section 11-1427(g) of the Vehicle Code immu

nizes owners, lessees, and occupants of land from liability when

someone is injured on their land while using an ATV, unless such

liability exists because of "willful or malicious failure to

guard or warn against a dangerous condition."  625 ILCS 5/11-

1427(g) (West 2002).  The relevant text of section 11-1427(g) is

as follows:

	"Notwithstanding 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

use by an [ATV] or off-highway motorcycle, or

to give warning of any condition, use, struc

ture[,] or activity on such premises.  ***

	Nothing in this subsection limits in any

way liability which otherwise exists for

willful or malicious failure to guard or warn against a dangerous condition, use, struc

ture, or activity."  625 ILCS 5/11-1427(g)

(West 2002). 

		A person acts maliciously when he or she commits a

wrongful act intentionally and without just cause.  Gordon v. Oak Park School District No. 97, 24 Ill. App. 3d 131, 135, 320 N.E.2d 389, 393 (1974).  Willful and wanton conduct is "a hybrid between

acts considered negligent and behavior found to be intentionally

tortious."  Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 275, 641 N.E.2d 402, 406 (1994).  A person's acts are willful and

wanton when they are done intentionally or under circumstances

exhibiting a reckless disregard for the safety of others. 

Ziarko, 161 Ill. 2d at 273, 641 N.E.2d at 405.     

		Pursuant to section 11-1427(g) of the Vehicle Code,

Wilson will only be liable for Tyler's injuries if he willfully

or maliciously failed to guard against or warn of the hole. 

Here, plaintiffs' only contention is that Wilson's actions were

willful and wanton, not malicious.  They argue that Wilson's

failure to guard against the hole or warn of its existence was

willful and wanton because Wilson knew (1) the hole was dangerous

and (2) children were likely to ride ATVs in his fields.  We disagree.

		Plaintiffs' argument that Wilson should have made his

leased property safe for use by ATV riders because such use was foreseeable ignores the purposes and intentions of section 11-

1427(g) of the Vehicle Code.  Section 11-1427(g) relieves a

lessee of the duty to make his property safe for use by ATV

riders or to warn of a dangerous condition, unless liability is

based upon the willful or malicious conduct of the lessee.  625

ILCS 5/11-1427(g) (West 2002).  That ATV use was foreseeable does

not establish willful and wanton conduct on Wilson's part. 

Further, the facts alleged in plaintiffs' complaint are insuffi

cient to show Wilson's actions were willful since he neither

intentionally caused harm nor did he exhibit a reckless disregard

for the safety of others.  

		Here, Wilson discovered the hole in his field while

harvesting and left soybeans standing in and around it.  His

actions both prevented damage to his farming equipment and marked

the existence of the hole.  The soybeans standing in and around

the hole were clearly visible because the remainder of the field

was harvested.  Further, while it may have been foreseeable that

ATV users would ride in the field once it was harvested, it does

not necessarily follow that it was foreseeable that one would

intentionally drive through the collection of remaining soybeans

with the purpose of destroying them. 

		At most, plaintiffs' complaint alleges liability on

Wilson's part based upon traditional concepts of negligence.  We

find the trial court was correct in stating that such liability is exactly the type that section 11-1427(g) was meant to protect

against.  ATV riding is an inherently dangerous activity, and

trespassers engaging in such an activity must be responsible for

guarding their own safety when riding on another's property; this

is especially true when that property is an unfamiliar open field

used for agricultural purposes.  

		Section 11-1427(g) relieves Wilson of a duty to ATV

riders to guard against or warn of a dangerous condition on his

leased property.  Further, nothing in plaintiff's complaint

brings Wilson's conduct within section 11-1427(g)'s exception for

willful or malicious conduct.  Therefore, we affirm the trial

court's dismissal of plaintiff's complaint with regard to Wilson

as it fails to state a cause of action upon which recovery can be

obtained.  

					III. CONCLUSION

		For the reasons stated, we affirm the trial court's

judgment.

		Affirmed.

	     COOK, P.J., concurs.

		McCULLOUGH, J., specially concurs. 

		JUSTICE McCULLOUGH, specially concurring:

		I concur in the majority's order affirming the trial

court and write specially only as to defendant Bart Wilson, the

tenant of the farm property.

		Plaintiffs' appeal is only with respect to defendant

Bart Wilson.  No issue is raised as to judgment in favor of John,

Sheri, Kristle, and Kevin Williams, the owners of the property. 

Bart Wilson is the tenant on the property owned by the

Williamses.  Wilson had not harvested the beans that surrounded

an erosion drainage hole to avoid damage to his combine, and as

the majority states "to serve as a visual reminder."  Slip op. at

2.

		As the majority points out and the trial court stated

in its October 5, 2004, order, Tyler, then 13 years old, "while

driving 30 miles per hour, he intentionally drove into the

standing beans for the express purpose of destroying them."  At

the time he was in defendant's field, he was a trespasser.  There

was at least one "No Trespassing" sign placed on the premises.

		Plaintiffs' argument that defendant Wilson's conduct

was willful and malicious is utterly without merit.  Filing a

lawsuit by parents of a 13-year-old child that the parents

entrust with an ATV, to do as he pleases, is not what our system

of justice should be about.  Where there is an abuse of our

justice system, our review process should give serious

consideration to impose sanctions.

		A review of the facts show the child knew the

definition of "trespassing."  Cynthia Morris, Tyler's mother,

stated in her deposition that they did not have permission to use the field and she never talked to Tyler about it.  Mark Morris,

the father, told Tyler he could ride in the field and that the

unharvested beans that were left were waste.  Mark Morris's

deposition shows he never talked to the owner of the property and

that he knew that he did not have permission to be on defendant's

property but approved of Tyler being on the field. The child

testified that he did not know if dad had permission and his

permission came from "my dad."

		As the trial court stated, "There is nothing in the

allegations of this complaint that make the conduct of either the

landowner or the farmer/occupant willful or malicious."

		Section 11-1427(f) also makes it clear that it is

unlawful to operate an ATV "[o]n private property, without the

written or verbal consent of the owner or lessee thereof."  625

ILCS 5/11-1427(f) (West 2002).  The depositions of plaintiffs

make it clear they knew they did not have permission to be on the

property and knew the child was trespassing.