Kirnbauer v. Cook County Forest Preserve Dist.

• Decision Date: 17 June 1991
• Docket Number: No. 1-90-0366,1-90-0366
• Parties: , 159 Ill.Dec. 499 Robert L. KIRNBAUER, Plaintiff-Appellant, v. The COOK COUNTY FOREST PRESERVE DISTRICT, a local public entity, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 168

576 N.E.2d 168

215 Ill.App.3d 1013, 159 Ill.Dec. 499

Robert L. KIRNBAUER, Plaintiff-Appellant, v. The COOK COUNTY FOREST PRESERVE DISTRICT, a local public

entity, Defendant-Appellee.

No. 1-90-0366.

Appellate Court of Illinois,

First District, First Division.

June 17, 1991.

[215 Ill.App.3d 1014] [159 Ill.Dec. 501] Hoey and Farina, Chicago (James L. Farina, of counsel), for plaintiff-appellant.

Burke and Smith Chartered, Chicago (Ellen B. Van Vechten, of counsel), for defendant-appellee.

Presiding Justice MANNING delivered the opinion of the court:

Plaintiff-appellant, Robert L. Kirnbauer, brought this action for personal injuries which he sustained wherein he lost an eye when it was punctured by part of an extended steel cable barricade erected by defendant-appellee, the Cook County Forest Preserve District. The trial court granted defendant's motion for summary judgment as to count II of plaintiff's third-amended complaint, sounding in negligence. Following a trial on count I, sounding in willful and wanton conduct, a directed verdict was granted and judgment entered for defendant. Plaintiff does not challenge the court's ruling with respect to the directed verdict on the willful and wanton count, rather, he filed this appeal as to the court's ruling concerning the negligence count only. On appeal, plaintiff asserts that the trial court erred in granting the motion for summary judgment because there exists a genuine issue of material fact as to whether the area immediately around the barricade, purportedly on the public right-of-way, was part of "a park, playground or open area for recreational purposes," pursuant to section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (hereinafter "Tort Immunity Act"). (Ill.Rev.Stat.1987, ch. 85, par. 3-106.) We affirm the judgment of the trial court for the following reasons.

BACKGROUND

On June 5, 1979, plaintiff, then 13-years-old, was waiting for a school bus on the north side of 135th Street near Natchez Avenue in Orland Park, Illinois. On the north side of 135th Street was a forest preserve owned by the defendant, commonly known as Tampier Slough. At that time, a steel cable barricade constructed and erected by defendant was suspended between two posts about three feet above the ground. A sign marked "closed" was attached to the cable by wire, cold chucks or nails. Plaintiff and his companion, Mark Williams, used the sign to twist the cable. Mark pushed the sign over the cable toward plaintiff who then pushed it under the cable to Mark. The boys rotated the cable seven or eight times and then stepped back to watch the cable spin. Mark stated that they stepped back in case anything came off and that he knew the cable could cause injury if it hit him while spinning. The boys then began to twist the cable a second time, twisting it one or two rotations more than the first time when the sign broke while it was in plaintiff's hand and he was struck in the eye by the cable.

Plaintiff's third-amended complaint alleged in count I that defendant had willfully Defendant filed an answer, affirmative defenses and motions for summary judgment and sanctions directed at the third-amended complaint. Defendant initially asked the trial court to dismiss count II based on the court's earlier ruling of June 21, 1989, wherein it granted summary judgment in favor of defendant based on section 3-106 of the Tort Immunity Act. However, because the trial court allowed plaintiff to amend his complaint on July 27, 1989, and plaintiff then added a new theory, i.e., the accident site was not property of defendant, but part of the right-of-way for 135th Street, defendant proceeded with several arguments in support of its summary judgment motion. Defendant first reasserted that the accident site was public property within the meaning of the Tort Immunity Act and that since it was used for recreational purposes, the preserve was immune from liability for ordinary negligence. Defendant next maintained that for purposes of the summary judgment motion, assuming the accident site was a part of the right-of-way for 135th Street, it was no more than an easement, which the owner of the servient estate, i.e., defendant, was allowed to use in any way which did not interfere with the easement. Defendant further contended that since the barricade was also part of either a road or a trail, it was immune from tort liability "for an injury caused by a condition" thereon pursuant to section 3-107. (Ill.Rev.Stat.1987, ch. 85, par. 3-107.) In any event, defendant asserted that the existence of an unused easement at the site of the accident did not change defendant's duty to plaintiff.

[159 Ill.Dec. 502] and wantonly erected the cable off its own property onto the public right-of-way for 135th Street knowing that the area was used as a bus stop for children. Count II alleged that defendant negligently and carelessly erected the cable with a sign affixed to it by the use of nails creating an unsafe condition for pedestrians, especially children playing in and near the park. Plaintiff had filed prior complaints alleging negligence or willful and wanton conduct by defendant; however, for the first time, in his third-amended complaint, plaintiff alleged that the property in question was not public property owned by defendant.

When the trial court considered the issues raised on summary judgment, the court had before it certain affidavits, several exhibits which included photographs, certified copies of a warranty deed and a right-of-way property record, and the depositions of: plaintiff; his father; Mark Williams, the companion who was with plaintiff at the time of the accident; Mr. Strache, the defendant's superintendent; and expert witnesses who testified on behalf of both parties. Defendant's argument was that pursuant to section 3-106 of the Tort Immunity Act, the preserve was immune from tort liability, absent willful and wanton conduct, for injuries sustained on its property used for recreational purposes.

OPINION

A reviewing court is not limited to the precise reasons stated or those implied by the trial court in entering its summary judgment in determining whether judgment was correctly entered for the moving party as a matter of law. (Coomer v. Chicago & N.W. Transp. Co. (1980), 91 Ill.App.3d 17, 46 Ill.Dec. 812, 414 N.E.2d 865.) Rather, the reviewing court will consider all grounds urged and facts revealed in the trial court when determining the propriety of entry of the summary judgment. Hernandez v. Johnson Press Corp. (1979), 70 Ill.App.3d 664, 26 Ill.Dec. 777, 388 N.E.2d 778.

In reviewing the trial court's grant of summary judgment, the appellate court must consider all grounds urged and facts revealed in the pleadings in the case, together with all depositions and admissions on file, and affidavits, if any, to determine if a genuine issue of material fact was raised to be determined by a jury and if none was raised, whether the movant was entitled to summary judgment as a matter of law. (Ill.Rev.Stat.1987, ch. 110, par. 2-1005; Joiner v. Benton Community Bank (1980), 82 Ill.2d 40, 44 Ill.Dec. 260, 411 N.E.2d 229; Salinas v. Chicago Park Dist. (1989), 189 Ill.App.3d 55, 59, 136 Ill.Dec 660, 545 N.E.2d 184.) The appellate court will affirm the summary judgment of a lower court if the decision is justified by a reason appearing in the record. Erasmus v. Chicago Housing Authority (1980), 86 Ill.App.3d 142, 41 Ill.Dec. 533, 407 N.E.2d 1031.

Our review of the record here establishes that no material facts were in dispute, as shown by the legal documents and other evidence before the court, and that the question of interpretation of the Tort Immunity Act is a question of law properly decided on a motion for summary judgment. Pursuant to article XIII of the Illinois Constitution, the General Assembly is the ultimate authority in determining whether a unit of local government is immune from tort liability (Ill.Const. 1970, art. XIII, sec. 4), accordingly, we must look to the language of the Tort Immunity Act. Pursuant to the Tort Immunity Act, local public entities and public employees are immune from liability arising from the operation of specific governmental functions in tort actions. (Ill.Rev.Stat.1987, ch. 85, par. 2-101; Firestone v. Fritz (1983), 119 Ill.App.3d 685, 689, 75 Ill.Dec. 83, 456 N.E.2d 904, 908.) Because the Tort Immunity Act is in derogation of the common law, it must be strictly construed against the local public entity or public employee. Reynolds v. City of Tuscola (1971), 48 Ill.2d 339, 342, 270 N.E.2d 415, 417.

Defendant's motion for summary judgment was based in part upon section 3-106 of the Tort Immunity Act which provides in relevant part as follows:

"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." Ill.Rev.Stat.1987, ch. 85, par. 3-106. (Emphasis added.)

Section 3-106 applies to situations where a municipality fails to maintain property under its control intended for recreational use by allowing an unsafe condition to exist. Section 3-106, unlike section 3-102, contemplates liability only if the governmental unit or employee acts in a willful and wanton manner. Pursuant to section 3- 106, there is no municipal liability for negligence resulting in injuries occurring on public property intended for recreational purposes, unless the local public entity is guilty of willful and wanton conduct. (Burdinie v. Village of Glendale Heights, (1990), 139 Ill.2d 501, 152 Ill.Dec. 121, 565 N.E.2d 654.) Accord Jarvis v. Herrin City Park Dist. (1972), 6 Ill.App.3d 516, 285 N.E.2d 564, holding that a forest preserve will be liable for injuries only in the...