Annen v. Village of McNabb

• Decision Date: 04 January 1990
• Docket Number: No. 3-89-0070,3-89-0070
• Citation: 548 N.E.2d 1383,192 Ill.App.3d 711,139 Ill.Dec. 669
• Court: United States Appellate Court of Illinois
• Parties: , 139 Ill.Dec. 669 Jennifer ANNEN, by her Mother and Next Friend, Linda Annen, Plaintiff-Appellant, v. VILLAGE OF McNABB, a Municipal Corporation, Defendant-Appellee.

Page 1383

548 N.E.2d 1383

192 Ill.App.3d 711, 139 Ill.Dec. 669

Jennifer ANNEN, by her Mother and Next Friend, Linda Annen Plaintiff-Appellant, v. VILLAGE OF McNABB, a Municipal Corporation, Defendant-Appellee.

No. 3-89-0070.

Appellate Court of Illinois Third District.

Jan. 4, 1990.

Scott J. Ganassin, Peter F. Ferracuti & Associates, Ottawa, for Jennifer Annen and Linda Annen.

T. Donald Henson, Jonathan F. Brandt, Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., LaSalle, for Village of McNabb.

Justice WOMBACHER delivered the opinion of the court:

Plaintiff Jennifer Annen filed a two count complaint against defendant Village of McNabb, a municipal corporation, for personal injuries sustained while using a restroom located within Coleman Memorial Park. Coleman Memorial Park is located in, owned and controlled by the defendant. Subsequently amended, Count I of the complaint alleged negligence on the part of the defendant in maintaining the restroom. In the alternative, Count II alleged willful and wanton conduct by the defendant.

Defendant filed a motion to dismiss Count I contending that the Local Governmental and Governmental Employees Tort Immunity Act (Ill.Rev.Stat.1987, ch. 85, par. 1-101 et seq.) (hereinafter Tort Immunity Act) limited plaintiff's action to one alleging willful and wanton conduct. The trial court agreed with the defendant and dismissed Count I of the amended complaint. Plaintiff appeals.

The record reveals that on June 16, 1987, the plaintiff, who was six years of age at the time, was at the park watching a baseball game. At some point the plaintiff left the baseball game. She travelled to a building located within the park, a building that solely housed restroom facilities. After entering the women's restroom, plaintiff leaned upon a sink. The sink immediately fell from the wall, seriously injuring her.

The issue presented is whether a local public entity is exempt from liability in ordinary negligence to one injured in a restroom building located in a public park.

The Tort Immunity Act provides:

" § 3-106. Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury." Ill.Rev.Stat.1987, ch. 85, par. 3-106.

Plaintiff maintains that since the Tort Immunity Act is in derogation of the common law it must be strictly construed against public entities. Plaintiff focuses on the restroom building itself, contending that a freestanding restroom building does not come within the purview of paragraph 3-106 because the building is not intended or used for recreational purposes. Plaintiff argues that since paragraph 3-106 is not applicable to this situation, the plaintiff need only prove that the defendant acted negligently rather than with willful and wanton conduct.

In support of her position, plaintiff urges this court to adopt the holding in Larson v. City of Chicago (1986), 142 Ill.App.3d 81, 96 Ill.Dec. 351, 491 N.E.2d 165. In Larson a roller-skater was injured on a public sidewalk located within a residential neighborhood. The defendant argued that since the sidewalk was being used for recreational purposes, [192 Ill.App.3d 713] paragraph 3-106 was applicable and the plaintiff was required to...