Davis v. Chicago Housing Authority

• Decision Date: 30 November 1988
• Docket Number: No. 87-1008,87-1008
• Citation: 176 Ill.App.3d 976,126 Ill.Dec. 391,531 N.E.2d 1018
• Parties: , 126 Ill.Dec. 391 Djuan T. DAVIS, a minor by his mother and next friend, Marsha Davis, Plaintiff- Appellee, v. CHICAGO HOUSING AUTHORITY, a municipal corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1018

531 N.E.2d 1018

176 Ill.App.3d 976, 126 Ill.Dec. 391

Djuan T. DAVIS, a minor by his mother and next friend Marsha Davis, Plaintiff- Appellee, v. CHICAGO HOUSING AUTHORITY, a municipal corporation Defendant-Appellant.

No. 87-1008.

Appellate Court of Illinois First District, Third Division.

Nov. 30, 1988.

Jones, Ware & Grenard, Chicago (Mitchell Ware, Frank M. Grenard, Josie M. Facianes and Davis S. Allen, of counsel), for defendant-appellant.

Lawrence Schlam, DeKalb, for plaintiff-appellee.

Justice FREEMAN delivered the opinion of the court:

Defendant, the Chicago Housing Authority, a municipal corporation, prosecutes this interlocutory appeal under Supreme Court Rule 308(a) (107 Ill.2d R. 308(a)) of the circuit court of Cook County's order vacating the dismissal of the second-amended complaint of the plaintiff, Djuan T. Davis, a minor, by his mother and next friend, Marsha Davis, and granting plaintiff leave to file a third-amended complaint. The question certified to this court is: "Whether paragraph 3-106 of the Illinois Tort Immunity Act applies to the Chicago Housing Authority, a municipal corporation."

Count I of plaintiff's second-amended complaint alleged that he sustained personal injuries as a result of defendant's negligence in the "ownership, operation, management, maintenance and control" of "an area at or near 2730 S. State Street, * * * which area * * * was provided by [d]efendant for private use by the tenants, residents, and their guests of its building at the said address and which was utilized [thereby] as a playground." Count II repeated the factual allegations in Count I and further alleged that plaintiff's injuries resulted from defendant's willful and wanton conduct.

Defendant filed a motion to dismiss the second-amended complaint under section 2-615 of the Civil Practice Law. (Ill.Rev.Stat.1985, ch. 110, par. 2-615.) Defendant asserted that the complaint inadequately alleged the actual or constructive notice to defendant of the unsafe condition of its property allegedly causing plaintiff's injuries, as required under section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act). (Ill.Rev.Stat.1985, ch. 85, par. 3-102(a).) Defendant further asserted that the failure of Count I of the complaint to allege willful and wanton conduct and of Count II to allege facts supporting its allegation of such conduct required dismissal of the complaint pursuant to section 3-106 of the Tort Immunity Act. Section 3-106 provides that local public entities and employees are not liable for injuries "where liability is based on the existence of a condition of any public property intended or permitted to be used as a park, playground, or open area for recreational purposes" unless the entity or employee "is guilty of willful and wanton negligence proximately causing such injury." Ill.Rev.Stat.1985, ch. 85, par. 3-106.

The trial court dismissed the second-amended complaint on the ground that it did not comply with section 3-102(a). The court further held section 3-106 inapplicable to the complaint. The court reasoned that section 3-106 dealt with parks or playgrounds open to the general public while the plaintiff alleged that the playground provided by defendant was for the private use of its tenants, residents and their guests. The court considered that a well-pleaded allegation had to be taken as true for purposes of the motion to dismiss. The trial court subsequently granted plaintiff's motion to vacate the dismissal of the second-amended complaint and for leave to file a third-amended complaint. The trial court ruled that the latter complaint's allegations of notice were sufficient to satisfy the constructive notice requirement of section 3-102(a). The court also reiterated its belief that section 3-106 was inapplicable for the reasons it had previously given.

On appeal, defendant contends that section 3-106 of the Tort Immunity Act applies to any property owned by a local public entity which is used as a playground. Specifically, it contends the trial court erred in construing that provision as requiring that a "park, playground, or open area for recreational purposes" provided by a local public entity be open to the general public before such entity may avail itself thereof.

In deciding the certified question, we are called upon to construe the Tort Immunity Act generally and section 3-106 thereof specifically. The rules governing our inquiry include:

"[T]he primary rule of statutory construction is to ascertain and effectuate the legislature's intent. In doing so a court looks first to the statutory language itself. If the language is clear, the court must give it effect and should not look to extrinsic aids for construction." (In re Marriage of Logston (1984), 103 Ill.2d 266, 277, 82 Ill.Dec. 633, 469 N.E.2d 167.)

Moreover, the legislature has the power to define the terms used in a statute in any reasonable manner and such definitions must be sustained to the exclusion of nonstatutory alternatives (Commonwealth Edison Co. v. Property Tax Appeal Board (1984), 102 Ill.2d 443, 457, 82 Ill.Dec. 294, 468 N.E.2d 948) or hypothetical indulgences (Ballentine v. Bardwell (1985), 132 Ill.App.3d 1033, 1038, 88 Ill.Dec. 185, 478 N.E.2d 500). Finally, as the Tort Immunity Act is in derogation of the common law, it must be strictly construed against local public entities. Reynolds v. City of Tuscola (1971), 48 Ill.2d 339, 342, 270 N.E.2d 415.

Applying these rules here, we conclude that the Tort Immunity Act applies generally to defendant and that section 3-106 specifically applies to the playground provided by defendant on which plaintiff was injured. We therefore answer the certified question in the affirmative.

Section 1-206 of the Tort Immunity Act defines a local public entity as including a municipal corporation. (Ill.Rev.Stat.1985, ch. 85, par. 1-206.) The General Assembly has provided for the creation of housing authorities in the Housing Authorities Act. (Ill.Rev.Stat.1985, ch. 67 1/2, par. 1, et seq.) Section 8 of that Act provides, inter alia, that such authorities shall be municipal corporations. Therefore, defendant is a local public entity to which the Tort Immunity Act generally applies. See Boyles v. Greater Peoria Mass Transit District (1986), 113 Ill.2d 545, 553-54, 101 Ill.Dec. 847, 499 N.E.2d 435.

Section 3-101 of the Tort Immunity Act provides:

"As used in * * * Article [III] unless the context otherwise requires 'property of a local public entity' and 'public property' mean real or personal property owned or leased by a local public entity." (Ill.Rev.Stat.1985, ch. 85, par. 3-101.)

Thus, as used in section 3-106 of the Tort Immunity Act "public property" simply refers to property owned or leased by a local public entity which it intends or permits to be used as park, playground or open area for recreational purposes, not property which is used for such purposes and is open to the general public. As such, we hold that the trial court erred in ruling that section 3-106 did not require the denial of the motion to vacate the dismissal of plaintiff's complaint as a matter of law.

Plaintiff concedes that "public property" as used in the Tort Immunity Act means "publicly owned" property and that playgrounds provided by defendant are such property. He argues, however, that section 3-106 was intended to provide immunity only for local public entities engaged in essential governmental functions, such as the development and maintenance of parks and playgrounds available for use by the general public. It was not intended, he concludes, to protect a public housing authority such as defendant fulfilling the essentially proprietary function of a landlord, especially where, as here, it acts voluntarily and beyond the scope of its statutory authority in "incidentally" maintaining a few structures or devices generally found in public playgrounds for the private use of its tenants. These arguments are unavailing to plaintiff.

The first paragraph of section 2 of the Housing Authorities Act provides, inter alia:

"It is hereby declared as a matter of legislative determination that in order to promote and protect the health, safety, morals and welfare of the public, it is necessary in the public interest to provide for the creation of municipal corporations to be known as housing authorities and vest in said housing authorities all powers necessary or appropriate in order that they engage in low-rent housing and slum clearance projects, and undertake such land assembly, clearance, rehabilitation, development, redevelopment projects as will tend to relieve the shortage of decent, safe, and sanitary dwellings; and that the powers herein conferred upon housing authorities * * * are public objects and governmental functions essential to the public interest. (Emphasis added.) (Ill.Rev.Stat.1985, ch. 67 1/2, par. 2.)

Thus, as a general proposition, plaintiff incorrectly argues that a housing authority, such as defendant, performs merely proprietary, as opposed to essential governmental functions. The legislature having declared that the powers conferred upon housing authorities are "governmental functions essential to the public interest," we would be engaging in that which plaintiff urges us to avoid, i.e., judicial legislation, were we to hold that housing authorities, including defendant, merely perform proprietary functions. This we cannot do.

Moreover, the cases plaintiff cites in support of his arguments do not require us to hold that defendant does not fall within the coverage of section 3-106 of the Tort Immunity Act. In so concluding, we are mindful of the principle that the precedential scope of a decision is limited to the facts involved and is authority only for what is actually decided therein. In re Marriage of Tisckos (1987), 161 Ill.App.3d 302, 112 Ill.Dec. 860, 514 N.E.2d 523.

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