Bubb v. Springfield School Dist. 186

• Decision Date: 19 October 1995
• Docket Number: No. 77762,77762
• Parties: , 212 Ill.Dec. 542, 105 Ed. Law Rep. 232 Martha BUBB, Indiv. and as Mother and Natural Guardian of Amy Pavolko, Appellee, v. SPRINGFIELD SCHOOL DISTRICT 186 et al. (Springfield School District 186, Appellant).
• Court: Illinois Supreme Court

Page 887

657 N.E.2d 887

167 Ill.2d 372, 212 Ill.Dec. 542, 105

Ed. Law Rep. 232

Martha BUBB, Indiv. and as Mother and Natural Guardian of Amy Pavolko, Appellee, v. SPRINGFIELD SCHOOL DISTRICT 186 et al. (Springfield School District 186, Appellant).

No. 77762.

Supreme Court of Illinois.

Oct. 19, 1995.

Heyl, Royster, Voelker & Allen (Karen L. Kendall and Craig L. Unrath, Peoria, and Gary S. Schwab and Kurt M. Koepke, Springfield, of counsel), for appellant.

William J. Connor, Berg, Robeson & Connor, Springfield, for appellee.

Justice NICKELS delivered the opinion of the court:

The issue presented here is whether a school district is immune from negligence when a student is injured on a school sidewalk that is used for recreation. On September 14, 1990, Amy Pavolko suffered injuries while riding her bike on school property. Subsequently, her mother filed suit in the circuit court of Sangamon County against the defendant school district, individually and on the child's behalf, alleging that defendant was negligent for failing to maintain the school sidewalk in a safe condition. Defendant filed a motion for summary judgment based upon section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill.Rev.Stat.1989, ch. 85, par. 3-106). The circuit court denied the motion but certified two questions for interlocutory appeal (134 Ill.2d R. 308). The appellate court affirmed. (263 Ill.App.3d 942, 200 Ill.Dec. 813, 636 N.E.2d 4.) Defendant's petition for leave to appeal was allowed (145 Ill.2d R. 315).

BACKGROUND

Amy was injured when she fell from her bicycle while leaving the Enos elementary school in Springfield, where she was a student. A wide concrete sidewalk surrounds the school building, and Amy was injured when she rode her bicycle off the edge of this sidewalk and onto a grass playground. According to the complaint, the edge of the sidewalk is at least four inches higher than the surrounding grassy area. This height difference allegedly caused Amy to fall and injure herself.

Defendant filed a motion for summary judgment based on section 3-106. The statute provides defendant with immunity from negligence in certain circumstances. Specifically, section 3-106 provides:

"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." (Emphasis added.) (Ill.Rev.Stat.1989, ch. 85, par. 3-106.)

Plaintiff alleges only ordinary negligence, not willful and wanton conduct. Accordingly, if the statute applies, plaintiff cannot maintain this action.

The record contains photos of the area where the injury occurred. These photos show that yellow lines were painted on the sidewalk near the area where Amy was injured. School children could use these yellow lines to play a game known as four-square. The concrete area adjoins a grass area and an asphalt area that are both used by the school children as a playground.

In support of summary judgment, defendant submitted Amy's deposition. In her deposition, Amy stated that she and other school children often played in the area where the injury occurred. Amy stated that she played in that area "[m]ost of the time." In fact, she would "[u]sually [play] on the concrete," rather than the grass playground. According to Amy, teachers supervised recess and allowed the children to play four-square in this area. Amy also stated that the concrete area on the side of the school where she was injured contained three other four-square areas in addition to the one located a few feet from the site of her injury.

Laine Tadlock, principal of the Enos elementary school, submitted an affidavit in support of defendant's summary judgment motion. She stated that the area where the injury occurred was "public property intended or permitted for use by our school children as a playground and as an area for use by our school children for recreational purposes." She also stated that "school children have played four-square and other games and activities in that area."

In response, plaintiff submitted the deposition of the head maintenance worker at the school, Danny Hicks. Hicks stated that the concrete surrounding the school had not been installed to serve specifically as a playground. Hicks personally never saw any children play four-square in the area, but he stated that the four-square lines had been painted on the concrete area to allow the school children to play there if they so desired.

The circuit court denied summary judgment but certified two questions for interlocutory appeal:

"(a) Does § 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act apply if the public property has more than one purpose, one of which is recreational in nature?

(b) Does § 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act apply where a child sustains injury on school property after falling off her bicycle when the front wheel of the bicycle dropped off in an area where children play foursquare?"

On appeal, the appellate court affirmed the denial of summary judgment. The appellate court did not specifically answer the certified questions "yes" or "no" but created an analysis to be used by the trier of fact to answer the questions. Initially, the appellate court recognized a category of property that has both recreational and nonrecreational uses. It called this property "dual-purpose property." The court concluded that "there is immunity under section 3-106 for dual-purpose property where the primary purpose is recreational, however it is used; there is immunity under section 3-106 for dual-purpose property where the primary purpose is nonrecreational, but only where the property is used for recreational purposes." 263 Ill.App.3d 942, 945, 200 Ill.Dec. 813, 636 N.E.2d 4.

Thus, the appellate court adopted a two-part analysis to be applied to "dual-purpose property." First, the "primary purpose" of the property must be considered. Second, the type of activity performed at the time of injury must be considered. If either the primary purpose of the property or the activity performed at the time of injury is recreational, then the statute applies and defendant is immune. The appellate court concluded that under its two-part test genuine questions of material fact remained which the trier of fact would have to decide.

ANALYSIS

Resolution of this case depends on whether the site of the accident was "public property intended or permitted to be used for recreational purposes" within the meaning of the statute. (Ill.Rev.Stat.1989, ch. 85, par. 3-106.) This court has not previously addressed the meaning of this statutory language. Cf. McCuen v. Peoria Park District (1994), 163 Ill.2d 125, 205 Ill.Dec. 487, 643 N.E.2d 778 (holding that the statute did not apply because liability was not based on a "condition" of the property).

Defendant argues that the statute does not authorize a two-part test. Instead, defendant argues, the statutory language sets out the proper test explicitly and the appellate court erred in formulating its two-part test. Defendant argues that the facts show that the sidewalk surrounding the school was public property intended or permitted to be used for recreational purposes. We agree. We reject the analysis of the appellate court for the reasons that follow. In addition, based on the facts contained in the record, we find that defendant is entitled to summary judgment.

We note that local public entities, in general, have a duty to exercise ordinary care to maintain public property in a reasonably safe condition. This duty existed at common law and is now codified in section 3-102 of the Tort Immunity Act (Ill.Rev.Stat.1989, ch. 85, par. 3-102). (See Wagner v. City of Chicago (1995), 166 Ill.2d 144, 209 Ill.Dec. 672, 651 N.E.2d 1120.) The legislature created no new duties when it enacted the Tort Immunity Act; it created only immunities and defenses. (Ill.Rev.Stat.1989, ch. 85, par. 1-101.1(a).) Section 3-106 provides a public entity with an affirmative defense, which, if properly raised and proven by the public entity, bars a plaintiff's right to recovery. See Ramirez v. Village of River Grove (1994), 266 Ill.App.3d 930, 932, 204 Ill.Dec. 48, 641 N.E.2d 7; Brown v. Chicago Park District (1991), 218 Ill.App.3d 612, 618, 161 Ill.Dec. 353, 578 N.E.2d 999.

By providing immunity, the legislature sought to prevent the diversion of public funds from their intended purpose to the payment of damage claims. (See Davis v. Chicago Housing Authority (1990), 136 Ill.2d 296, 302, 144 Ill.Dec. 224, 555 N.E.2d 343, quoting 18 E. McQuillin, Municipal Corporations § 53.24 (3d ed. 1963).) Initially, section 3-106 immunity was specifically limited to parks, playgrounds, and open areas used for recreational purposes. In 1986, the legislature amended the statute to apply to "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." (Ill.Rev.Stat.1989, ch. 85, par. 3-106.) Section 3-106 immunity was expanded to cover any recreational property, similar in nature to the types of properties listed in the statute. See Bonfield v. Jordan (1990), 202 Ill.App.3d 638, 645, 148 Ill.Dec. 110, 560 N.E.2d 412.

In applying section 3-106, we consider the reasoning of other courts that have addressed this statute. No other court has applied the analysis used by the appellate court in this case. These courts have not recognized a distinction based on "dual-purpose property." In addition, they have not adopted...