District v. City of Decatur, 2016 IL App (4th) 150699, ¶ 30, 57 N.E.3d 631 (citing Henrich v. Libertyville High School, 186 Ill.2d 381, 387, 712 N.E.2d 298, 302 (1998)); see also Reyes v. Board of Education of the City of Chicago, 2019 IL App (1st) 180593, ¶ 48, 139 N.E.3d 123 (" [I]mmunity under the [Tort Immunity] Act must be raised and pled as an affirmative defense or it is forfeited, even if the evidence supports the existence or appropriateness of the defense."); Dobias v. Oak Park & River Forest High School District 200, 2016 IL App (1st) 152205, ¶ 118 n.2, 57 N.E.3d 551 (declining to address whether an action was barred pursuant to a section of the Tort Immunity Act because the issue had not been fully developed in the record); In re Marriage of Solomon, 2015 IL App (1st) 133048, ¶ 22, 29 N.E.3d 560 ("[T]he Tort Immunity Act provides an affirmative defense, which may be waived if not raised."); Bowman v. Chicago Park District, 2014 IL App (1st) 132122, ¶ 59, 19 N.E.3d 75 (" [I]ssues not raised in the trial court are waived and may not be considered for the first time on appeal.").
, In re Marriage of Pratt, 2014 IL App(1st) 130465, ¶ 23, 17 N.E.3d 678 ("Arguments raised for the first time on appeal are waived."); Bowman v. Chicago Park District, 2014 IL App (1st) 132122, ¶ 59, 19 N.E.3d 75 ("[I]ssues not raised in the trial court are waived and may not be considered for the first time on appeal."); Hytel Group, Inc. v. Butler, 405 Ill. App. 3d 113, 127, 938 N.E.2d 542, 556 (2010) ("A reviewing court will not consider arguments not presented to the trial court."). However, forfeiture is a limitation on the parties and not on this court.
See, e.g., In re Marriage of Pratt, 2014 IL App (1st) 130465, ¶ 23, 17 N.E.3d 678 ("Arguments raised for the first time on appeal are waived."); Bowman v. Chicago Park District, 2014 IL App (1st) 132122, ¶ 59, 19 N.E.3d 75 ("[I]ssues not raised in the trial court are waived and may not be considered for the first time on appeal."); Hytel Group, Inc. v. Butler, 405 Ill. App. 3d 113, 127, 938 N.E.2d 542, 556 (2010) ("A reviewing court will not consider arguments not presented to the trial court."). Moreover, respondent forfeited the arguments raised on appeal by failing to comply with Rule 341(h)(7).
For example, in Bowman v. Chicago Park District , 2014 IL App (1st) 132122, 385 Ill.Dec. 517, 19 N.E.3d 75, notwithstanding an ordinance providing for a 12-year-old age limit for playground equipment, a 13-year-old was an intended user of a slide. In that case, there was nothing that showed that adults, let alone children, had any way of knowing that the park district had designated the park for a particular age group or that the subject slide was designed for children under age 12.
The liquidator correctly notes that the Board did not raise this argument below and so it is forfeited. See Bowman v. Chicago Park District , 2014 IL App (1st) 132122, ¶ 59, 385 Ill.Dec. 517, 19 N.E.3d 75 (issues not raised in the trial court are forfeited and may not be considered for the first time on appeal). ¶ 50 E. Burden of Proof
¶ 43 We review summary judgments de novo , meaning that we perform the same analysis a trial court would perform. Bowman v. Chicago Park District , 2014 IL App (1st) 132122, ¶ 43, 385 Ill.Dec. 517, 19 N.E.3d 75 ; City of Mattoon v. Mentzer , 282 Ill. App. 3d 628, 633, 218 Ill.Dec. 117, 668 N.E.2d 601 (1996). Section 2–1005(c) of the Code of Civil Procedure ( 735 ILCS 5/2–1005(c) (West 2014)) provides: "The [requested summary] judgment sought shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
Illinois State Bar Ass'n Mutual Insurance Co. v. Law Office of Tuzzolino & Terpinas, 2015 IL 117096, ¶ 14, 389 Ill.Dec. 575, 27 N.E.3d 67. We review the trial court's decision to grant summary judgment de novo.Bowman v. Chicago Park District, 2014 IL App (1st) 132122, ¶ 43, 385 Ill.Dec. 517, 19 N.E.3d 75. ¶ 47 The Act defines "willful and wanton conduct" as "a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property."
¶ 33 We note that DeMarzo asserts that Patricia told Panagakis on other occasions that Harris had prepared her will and that she wanted to change it. Absent a transcript or bystander's report from the trial court proceedings, we are unable to determine if this was raised below. A failure to do so precludes our addressing it. Bowman v. Chicago Park District, 2014 IL App (1st) 132122, ¶ 59, 385 Ill.Dec. 517, 19 N.E.3d 75 (arguments raised for first time on appeal are waived). Even assuming DeMarzo did try to raise these conversations before the trial court, they would likely have been barred as hearsay—out-of-court statements offered to prove the truth of the matter asserted, namely, that Harris prepared Patricia's will or exercised undue influence over her. (As for any contention that Patricia wanted to change her will, there is no evidence suggesting she tried to do so during the five years between the date she signed it and the date she died.)