Corral v. Chicago Park Dist.

• Decision Date: 22 December 1995
• Docket Number: No. 1-94-3061,1-94-3061
• Citation: 277 Ill.App.3d 357,660 N.E.2d 89,213 Ill.Dec. 832
• Parties: , 213 Ill.Dec. 832 Luis CORRAL, as father and next friend of Daniel Corral, a minor, Plaintiff-Appellant, v. CHICAGO PARK DISTRICT, a municipal corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 89

660 N.E.2d 89

277 Ill.App.3d 357, 213 Ill.Dec. 832

Luis CORRAL, as father and next friend of Daniel Corral, a minor, Plaintiff-Appellant, v. CHICAGO PARK DISTRICT, a municipal corporation, Defendant-Appellee.

No. 1-94-3061.

Appellate Court of Illinois,

First District, Sixth Division.

Dec. 22, 1995.

David L. Cwik, Chicago, for Appellant.

Donald J. Suriano, Senior Counsel, Chicago Park District, Chicago, for Appellee.

Justice RAKOWSKI delivered the opinion of the court:

While visiting Lincoln Park Zoo (Zoo) with his classmates, Daniel Corral tripped on a cobblestone sidewalk and was injured. The Zoo is located in Lincoln Park and is operated by the defendant, Chicago Park District. Plaintiff filed a two-count complaint (negligence and wilful conduct) against the defendant. The trial court granted defendant's motion to dismiss the negligence count pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)), holding that the Chicago Park District was immune from suit in simple negligence. Following a trial, judgment was entered in favor of defendant on the wilful conduct count.

Plaintiff's appeal only addresses the dismissal of the negligence count and frames the issue as whether the Chicago Park District, as operator of the Lincoln Park Zoo, is immune from suit in simple negligence for injuries occurring on the Zoo's property. For the following reasons, we affirm.

Section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) 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." (745 ILCS 10/3-106 (West 1992).)

Section 1-206 of the Tort Immunity Act provides:

" 'Local public entity' includes a county, township, municipality, municipal corporation, school district, school board, educational service region, regional board of school trustees, community college district, community college board, forest preserve district, park district, fire protection district, sanitary district, museum district, and all other local governmental bodies. 'Local public entity' also includes library systems and any intergovernmental agency or similar entity formed pursuant to the Constitution of the State of Illinois or the intergovernmental Cooperation Act as well as any not-for-profit corporation organized for the purpose of conducting public business. It does not include the State or any office, officer, department, division, bureau, board, commission, university or similar agency of the State." 745 ILCS 10/1-206 (West 1992).

Plaintiff first contends that the Tort Immunity Act does not apply to the Zoo because it is not a recreational facility within the meaning of the statute. According to plaintiff, the Tort Immunity Act applies only to "open areas" used for "sportive activities." Plaintiff also notes that a zoo is not included in the definition of "local public entity." For the reasons which follow, we find plaintiff's contention to be without merit.

Plaintiff tripped and fell while walking on a sidewalk adjacent to the outdoor seal exhibit. It is of no import whether this area can be characterized as an open area. The express language of section 3-106 includes: "parks, playgrounds, open areas, buildings or other enclosed recreational facilities." (Emphasis added.) (745 ILCS 10/3-106.) Although the Zoo is a separate section of Lincoln Park, the Zoo nonetheless is located entirely within Lincoln Park and is operated by the Chicago Park District. As a result, plaintiff's contention is belied by the unambiguous language of section 3-106 and section 1-206 of the Tort Immunity Act.

In support of his argument that the Tort Immunity Act applies only to sportive activities, plaintiff cites John v. City of Macomb (1992), 232 Ill.App.3d 877, 173 Ill.Dec. 375, 596 N.E.2d 1254, which in part states:

"In our opinion, the legislative intent of the Act is to immunize governmental entities from liability for simple negligence in areas where public activities of a sportive nature, as opposed to stage entertainment, are permitted." John, 232 Ill.App.3d at 880, 173 Ill.Dec. 375, 596 N.E.2d 1254.

First we note that no citation to authority is given in support of the aforementioned quote. Nor is there any language in the statute which would support such a statement. The unambiguous language of the Tort Immunity Act grants immunity where the property is used for recreational purposes. We find no language which would support a sportive or active activity limitation and see no reason to engraft one.

Immunity depends upon the character of the property in question (Bubb v. Springfield School District 186 (1995), 167 Ill.2d 372, 212 Ill.Dec. 542, 546, 657 N.E.2d 887, 891.) When deciding whether section 3-106 is applicable, courts must consider the nature of the property as a whole. (Bubb, at 379, 212 Ill.Dec. 542, 657 N.E.2d 887, citing Kirnbauer v. Cook County Forest Preserve District (1991), 215 Ill.App.3d 1013, 159 Ill.Dec. 499, 576 N.E.2d 168.) It is undisputed that the Chicago Park District is a local public entity and that the sidewalk on which plaintiff fell was public property within the meaning of the Tort Immunity Act. (745 ILCS 5/1-206, 3-101.) It is also uncontroverted that the sidewalk was located within Lincoln Park.

In Spencer v. City of Chicago (1989), 192 Ill.App.3d 150, 139 Ill.Dec. 216, 548 N.E.2d 601, we held that a lagoon owned by the Chicago Park District was recreational property covered under section 3-106 of the Tort Immunity Act. There were signs around the perimeter of the lagoon which prohibited fishing and swimming. In response to plaintiff's argument that the lagoon was not recreational property, the court held:

"A park is 'an inclosed pleasure-ground in or near a city, set apart for the recreation of the public.' (Black's Law Dictionary 1005 (5th ed. 1979).) * * *

The term 'recreation area' or 'recreation purpose' is not limited to active recreation. The court in Zebulon Enterprises, Inc. v. County of Du Page (1986), 146 Ill.App.3d 515, 518-19, 469 N.E.2d 1256, 1259, found the term 'recreation' to include both active and passive activities." (Spencer, 192 Ill.App.3d at 155, 139 Ill.Dec. 216, 548 N.E.2d 601.)

See also Kirnbauer v. Cook County Forest Preserve District (1991), 215 Ill.App.3d 1013, 1022-23, 159 Ill.Dec. 499, 576 N.E.2d 168 (plaintiff injured by steel cable barricade erected on property adjacent to roadway and within forest preserve); Annen v. Village of McNabb (1990), 192 Ill.App.3d 711, 712-13, 139 Ill.Dec. 669, 548 N.E.2d 1383 (plaintiff injured in restroom facility located within park); Ramos v. Waukegan Community Unit School District No. 60 (1989), 188 Ill.App.3d 1031, 1036-37, 136 Ill.Dec. 527, 544 N.E.2d 1302 (plaintiff injured on sidewalk adjacent to school playground).

Accordingly, we decline to follow the Third District opinion of John v. City of Macomb. To do so would require us to equate recreation with sportive or active activity, a conclusion not supported by the Tort Immunity Act or by better reasoned case law.

Next, plaintiff contends that the Tort Immunity Act does not apply because the Chicago Park District's operation of the Zoo is a proprietary function rather than a governmental function. The contention, however, begs the question. Plaintiff assumes (as have several reported decisions) that this distinction would determine whether or not the Tort Immunity Act applies. For the reasons which follow, we hold that the Tort Immunity Act does not retain the common law distinction between proprietary and governmental functions.

Prior to 1959, the common law doctrine of sovereign immunity granted municipal and quasi-municipal corporations partial immunity from tort liability. Under the doctrine, immunity was premised on whether the municipality's tortious acts were committed while engaged in a proprietary or governmental activity. (See Merrill v. City of Wheaton (1942), 379 Ill. 504, 41 N.E.2d 508 (liability based on whether the demolition of a stairway was a governmental function); Gebhardt v. Village of La Grange Park (1933), 354 Ill. 234, 188 N.E. 372 (liability of municipality turned on whether maintenance of park swimming pool was a governmental or proprietary function); Roumbos v. City of Chicago (1928), 332 Ill. 70, 163 N.E. 361 (application of respondent superior depends on whether government or private function of the city involved).) Thus, if the court determined that the municipality was engaging in a proprietary, private, or corporate function, there was no immunity from liability.

However, the common law of sovereign immunity was abolished by the landmark decision of Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill.2d 11, 163 N.E.2d 89. "Since the abolishment of sovereign immunity, our courts have held that '[g]overnmental units are liable in tort on the same basis as private tortfeasors unless a valid statute dealing with tort immunity imposes conditions upon that liability.' " Barnett v. Zion Park District (1994), 267 Ill.App.3d 283, 288, 204 Ill.Dec. 791, 642 N.E.2d 492, appeal granted (1995), 159 Ill.2d 563, 207 Ill.Dec. 513, 647 N.E.2d 1006, quoting LaMonte v. City of Belleville (1976), 41 Ill.App.3d 697, 705, 355 N.E.2d 70.

Between 1959 and 1965, the Illinois General Assembly enacted a series of bills both granting and denying immunity. "The result of this extensive legislative activity was a confused pattern embracing both full acceptance and full rejection of the principles laid down in Molitor, depending on the type of local government...