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SECOND DIVISION
November 14, 2000

No. 1-99-2663

JUSTICE GORDON delivered the opinion of the court:

Third-party plaintiffs Arctic Cat, Inc., and Arctic Cat Sales, Inc. (hereinafter referred to collectively as Arctic Cat), appealfrom an order of the Cook County circuit court dismissing their claim for contribution against third-party defendant PineCrest, Inc. (incorrectly sued as Pine Crest Marina), the owner of a pier in Cedar Lake, Indiana. The order was madeappealable pursuant to Supreme Court Rule 304(a). This appeal is the second arising from a July 1995 accident in whichNicholas Wreglesworth (Nicholas), a minor, sustained a serious head injury when a Tigershark personal watercraft inwhich he was riding as a passenger collided with the pier owned by Pine Crest and proceeded underneath it. Nicholas andhis mother, Barbara Wreglesworth (Barbara), filed suit against Arctic Cat, the manufacturer of the watercraft, allegingnegligence, product liability and breach of warranty. Arctic Cat subsequently filed a third-party complaint for contributionagainst several other parties including Pine Crest. In its order dismissing the third-party complaint against Pine Crest, thetrial court approved Pine Crest's proposed $5,000 settlement with Nicholas and Barbara, finding that the settlement wasmade in good faith within the meaning of the Joint Tortfeasor Contribution Act (the Act) (740 ILCS 100/0.01 et seq. (West1993)). The trial court also held that Pine Crest owed no duty to plaintiffs Nicholas and Barbara. On appeal, Arctic Catargues that the trial court erred (1) in holding that Pine Crest owed no duty to plaintiffs, and (2) in finding that thesettlement was made in good faith. For the reasons set forth below, we affirm the trial court's order dismissing the third-party complaint against Pine Crest.

BACKGROUND

The underlying complaint against Arctic Cat was brought in July 1997 by Nicholas through Barbara, and by Barbaraindividually. According to the complaint, the accident occurred on July 22, 1995, while Nicholas and his father, JamesWreglesworth, both Illinois residents, were vacationing at Cedar Lake, Indiana, with other Illinois residents including VeraOrtega. As noted, Nicholas was injured when a personal watercraft in which he was riding as a passenger collided with thepier owned by Pine Crest. At the time of the collision, the watercraft (also known as a jet-ski), which was owned byIndiana resident Timothy Lawrence, was being driven by Vera Ortega, who died as a result of the accident. Arctic Catsubsequently filed a counterclaim for indemnity based on a release that had been executed by Barbara. That agreementreleased Lawrence, Ortega and the Allstate insurance company (Lawrence's insurer) from liability in exchange for $100,000(the limit of Lawrence's Allstate policy). The trial court granted plaintiffs' motion to dismiss Arctic Cat's counterclaim, andArctic Cat appealed, arguing that under Indiana law Arctic Cat was included within the terms of the release.

In a separate appeal we affirmed the dismissal of Arctic Cat's counterclaim, holding that Illinois law applied. SeeWreglesworth v. Arctco, Inc., No. 99-2662 (Ill. App. Ct. 2000). According to the stipulations of the parties, our decision inthat case necessarily resolved any conflict of laws issues in the instant appeal. For that reason, we do not address choice-of-law issues here.

As noted, this appeal pertains only to a third-party complaint for contribution filed by Arctic Cat. Though Arctic Cat'ssecond amended third-party complaint listed as defendants not only Pine Crest, the subject of count IV, but also TimothyLawrence, James Wreglesworth and the estate of Vera Ortega, who were the subjects of counts I, II and III, we areconcerned in this appeal only with the complaint as it applies to Pine Crest. Apparently the third-party action againstOrtega's estate and James Wreglesworth is still ongoing. It was dismissed against Lawrence.

In count IV of its second amended third-party complaint, Arctic Cat alleged that Pine Crest "carelessly and negligentlyfailed to make sure the pier was reasonably safe for operation in connection with the watercraft," and "carelessly andnegligently fail[ed] to warn Vera Ortega and Nicholas Wreglesworth of the unreasonably dangerous condition the pierposed to the watercraft." Accordingly, Arctic Cat sought contribution from Pine Crest in an amount commensurate with itsnegligence, in the event that Arctic Cat was found liable to Nicholas and Barbara.

Pine Crest moved for a good-faith finding and resultant dismissal of the third-party complaint, asserting that it had reacheda proposed settlement for $5,000 with plaintiffs Nicholas and Barbara, "subject to a finding that the settlement was enteredinto in good faith." Pine Crest noted that under the Act a tortfeasor who settles in good faith is discharged from liability forcontribution to other tortfeasors. As to the settlement amount, Pine Crest stated at oral argument that the $5,000 figure wasapproximately equivalent to the legal fees it would have incurred if it had moved for summary judgment.

In its brief in opposition to Pine Crest's motion, Arctic Cat alleged "a long-standing prior relationship" between Pine Crestand the Wreglesworths. According to Arctic Cat, that relationship explained "the low settlement [amount]" and showedthat the settlement was not made in good faith. In its reply in support of its motion, Pine Crest responded to that allegation,attaching an affidavit of Robert Gross indicating that there was no such relationship. According to Gross, whose familyowns Pine Crest, there was no personal or contractual relationship between Pine Crest and the Wreglesworths or VeraOrtega on the date of the accident, and no member of the Gross family or owner of Pine Crest had developed a relationshipwith any of those parties since then. Neither the Wreglesworths nor the owner of the watercraft had docking privileges atPine Crest.

At the hearing on Pine Crest's motion, the following undisputed evidence was adduced. The accident occurred in themiddle of the day, shortly before 1 p.m., when Ortega got into the watercraft, went out some distance in the lake, came backand hit the pier at a high rate of speed.⁽¹⁾ As a result of this occurrence, Nicholas sustained, inter alia, a fractured skull. The pier is a fixed object along the shoreline and is clearly visible. Because it is fixed and not floating, the height of thepier varies depending on the water level of the lake. Rubber tires were positioned along certain portions of the pier toprevent boats from banging against the side.

Following the hearing, the trial court, as noted, granted Pine Crest's motion, finding that the settlement was entered into ingood faith, and dismissing Pine Crest from the third-party suit "pursuant to the settlement." The court stated: "I've heardthe arguments and don't see any duty on the part of the defendant. So based on that, I think the $5,000 settlement is okay." This appeal followed.

DISCUSSION

The Joint Tortfeasor Contribution Act (the Act) provides that a tortfeasor who settles in good faith with the injured partyis discharged from contribution liability. See In re Guardianship of Babb, 162 Ill. 2d 153, 160, 642 N.E.2d 1195, 1199(1994); Bowers v. Murphy & Miller, Inc., 272 Ill. App. 3d 606, 608, 650 N.E.2d 608, 610 (1995). The requirement thatthe settlement be made in good faith is contained in section 2(c) of the Act. 740 ILCS 100/2(c) (West 1993). Section 2(d)then provides that "[t]he tortfeasor who settles with a claimant pursuant to paragraph (c) is discharged from all liability forany contribution to any other tortfeasor." 740 ILCS 100/2(d) (West 1993). The term "good faith" is not defined in the Act,but a settlement is considered prima facie in good faith if the settling tortfeasor establishes that it was supported byconsideration. Solimini v. Thomas, 293 Ill. App. 3d 430, 437,

688 N.E.2d 356, 361 (1997) (citing McDermott v. Metropolitan Sanitary District, 240 Ill. App. 3d 1, 44, 607 N.E.2d 1271,1297 (1992)). The consideration does not have to be received; a mere promise to pay is sufficient to support a finding thatthe settlement was made in good faith. Solimini, 293 Ill. App. 3d at 437-39, 688 N.E.2d at 361-62. Once a prima facieshowing of good faith is made, a presumption arises that the settlement is valid, and the burden shifts to the partychallenging the settlement to show by a preponderance of the evidence that it was not made in good faith. Orejel v. YorkInternational Corp., 287 Ill. App. 3d 592, 599, 678 N.E.2d 683, 688 (1997); McDermott, 240 Ill. App. 3d at 44, 607 N.E.2dat 1297; Bowers, 272 Ill. App. 3d at 610, 650 N.E.2d at 611. Lack of good faith is generally considered to be "tortious orwrongful conduct on the part of the settling party that amounts to fraud or collusion." Alvarez v. Fred Hintze Construction,247 Ill. App. 3d 811, 816, 617 N.E.2d 821, 824 (1993) (quoting McDermott, 240 Ill. App. 3d at 44, 607 N.E.2d at 1297).

Factors which have been considered in determining whether a settlement was made in good faith include: (1) "whether theamount paid by the settling tortfeasor was 'within a reasonable range of the settlor's fair share'" (Babb, 162 Ill. 2d at 161,642 N.E.2d at 1199); (2) whether there was a close personal relationship between the settling parties (Warsing v. MaterialHandling Services, Inc., 271 Ill. App. 3d 556, 560, 648 N.E.2d 1126, 1129 (1995)); (3) whether the plaintiff sued the settlor (Warsing, 271 Ill. App. 3d at 560, 648 N.E.2d at 1129); and(4) whether a calculated effort was made to conceal information about the circumstances surrounding the settlementagreement (Babb, 162 Ill. 2d at 163, 642 N.E.2d at 1200). No single factor is seen as determinative. Babb, 162 Ill. 2d at162, 642 N.E.2d at 1199. The trial court is to consider all of the surrounding circumstances in determining whether asettlement was made in good faith. Babb, 162 Ill. 2d at 162, 642 N.E.2d at 1199; Orejel, 287 Ill. App. 3d at 599, 678N.E.2d at 688. A trial court's finding as to the good faith of a settlement is within the court's discretion, and it will bereversed on appeal only if there has been an abuse of discretion. Babb, 162 Ill. 2d at 162, 642 N.E.2d at 1200; Solimini,293 Ill. App. 3d at 437, 688 N.E.2d at 361.

In the instant case, Pine Crest made a prima facie showing that the settlement was entered into in good faith. Under theterms of the settlement, Nicholas and Barbara were to discharge Pine Crest from liability in exchange for $5,000. Thus theagreement was supported by consideration, and the burden shifted to Arctic Cat to show that the settlement was not madein good faith. See Orejel, 287 Ill. App. 3d at 599, 678 N.E.2d at 688.

Arctic Cat's major contention is that the trial court erred in its holding that there was no duty and that therefore the $5,000settlement amount is disproportionately small, thus establishing that the settlement was not made in good faith. Thisargument lacks merit and shall be addressed at some length.

According to Arctic Cat, Pine Crest had a duty to keep the pier in a reasonably safe condition by fully padding its sides andcorners (and not just some portions of the pier), as well as a duty to warn of non-obvious dangers if the pier was notreasonably safe. Arctic Cat notes that because the pier was a fixed object and not floating, there was a risk that awatercraft could proceed under the pier when the water was low. Pine Crest argues that its pier is an open and obviouscondition and that it therefore had no duty to Nicholas. We agree with Pine Crest.

"A duty of care arises when the parties stand in such a relationship to one another that the law imposes upon defendant anobligation of reasonable conduct for the benefit of plaintiff." Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430,437, 566 N.E.2d 239, 242-43 (1990). "Whether a duty exists in a particular case is a question of law to be determined bythe court." Ward v. K mart Corp., 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226 (1990).

Under the Premises Liability Act, an owner or occupier of any premises owes a duty of "reasonable care under thecircumstances" to entrants who are not trespassers. 740 ILCS 130/2 (West 1993); Menough v. Woodfield Gardens, 296 Ill.App. 3d 244, 247, 694 N.E.2d 1038, 1040 (1998). The situation is essentially the same under the common law. Ward, 136Ill. 2d at 141-42, 554 N.E.2d at 227. However, there is no such duty where the condition creating the risk is open andobvious. See Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 447-8, 665 N.E.2d 826, 832 (1996) (persons who own,occupy, or control and maintain land are not required to foresee and protect against injuries from potentially dangerousconditions that are open and obvious). The law generally assumes that persons who encounter such obvious and commonconditions will take care to avoid any danger inherent in them. Bucheleres, 171 Ill. 2d at 448, 665 N.E.2d at 832. "The open and obvious nature of the condition itself gives caution and therefore the risk of harm is considered slight; people areexpected to appreciate and avoid obvious risks." Bucheleres, 171 Ill. 2d at 448, 665 N.E.2d at 832. As our supreme courtstated in Ward:

"Certainly a condition may be so blatantly obvious and in such position on the defendant's premises that he could notreasonably be expected to anticipate that people will fail to protect themselves from any danger posed by the condition. Even in the case of children on the premises, this court has held that the owner or possessor has no duty to remedyconditions presenting obvious risks which children would generally be expected to appreciate and avoid." Ward, 136 Ill.2d at 148, 554 N.E.2d at 230.

Hence an owner or possessor of premises is not required to anticipate dangers that are open and obvious, even wherechildren are involved. Here the term "obvious" means that "both the condition and the risk are apparent to and would berecognized by a reasonable [person], in the position of the visitor, exercising ordinary perception, intelligence, andjudgment." Deibert, 141 Ill. 2d at 435, 566 N.E.2d at 241 (quoting Restatement (Second) of Torts