Moore v. Chicago Park Dist.

Citation351 Ill.Dec. 530,951 N.E.2d 1194
Decision Date28 June 2011
Docket NumberNo. 1–10–3325.,1–10–3325.
PartiesRoberta Minor MOORE, the Special Administrator of the Estate of Sylvia Lee Moore, Plaintiff–Appellee,v.CHICAGO PARK DISTRICT, Defendant–Appellant.
CourtUnited States Appellate Court of Illinois

2011 IL App (1st) 103,325
951 N.E.2d 1194
351 Ill.Dec.
530

Roberta Minor MOORE, the Special Administrator of the Estate of Sylvia Lee Moore, Plaintiff–Appellee,
v.
CHICAGO PARK DISTRICT, Defendant–Appellant.

No. 1–10–3325.

Appellate Court of Illinois, First District, Second Division.

June 28, 2011.


[951 N.E.2d 1195]

Chicago Park District Law Department, Chicago (George P. Smyrniotis, Nelson A. Brown, Sarah H. Greene, of counsel), for appellant.Steinberg, Burtker & Grossman, Ltd., Chicago (Richard J. Grossman, of counsel), for appellee.

OPINION
Justice HARRIS delivered the judgment of the court, with opinion.

[351 Ill.Dec. 531] ¶ 1 Here we are called upon to determine the following certified question pursuant to Illinois Supreme Court Rule 308 (eff.Feb.26, 2010): “Does an unnatural accumulation of snow and ice constitute the ‘existence of a condition of any public property’ as this expression is used in Section 3–106 of the Tort Immunity Act?” We answer the certified question in the negative. In Illinois, ice and snow are temporary and not permanent conditions of real property. The snow and ice were moved by the park district and thus became an unnatural accumulation. In construing section 3–106 of the Local Government and Governmental Employees Tort Immunity Act (hereafter Act) (745 ILCS 10/3–106 (West 2008)) strictly against the Park District, we cannot say that the unnatural accumulation of snow and ice is a condition of public property within the meaning of the statute. Under our supreme court's decision in McCuen v. Peoria Park District, 163 Ill.2d 125, 129, 205 Ill.Dec. 487, 643 N.E.2d 778 (1994), “If

[351 Ill.Dec. 532 , 951 N.E.2d 1196]

otherwise safe property is misused so that it is no longer safe, but the property itself remains unchanged, any danger presented to the property is due to the misuse of the property and not to the condition of the property.”

¶ 2 JURISDICTION

¶ 3 The trial court certified the question now before this court on October 29, 2010. The park district filed a petition for leave to appeal, which this court granted on December 3, 2010. Accordingly, this court has jurisdiction pursuant to Rule 308 governing certified questions. Ill. S.Ct. R. 308 (eff.Feb.26, 2010).

¶ 4 BACKGROUND

¶ 5 Sylvia Lee Moore and Glorious Williams regularly attended a senior water aerobics class offered by the Chicago park district (Park District) at Fernwood Park. On the morning of January 23, 2006, Ms. Moore and Ms. Williams drove together to Fernwood Park and Ms. Moore parked the car in the parking lot. It had snowed several inches over the weekend, but the parking lot had been plowed and shoveled. A Park District employee had shoveled the snow on the sidewalks at Fernwood Park by pushing the snow to the curb. After completing the class, both women left the building and headed for Ms. Moore's car in the parking lot. Three cars that were parked on or near the handicap parking space blocked easy access to the parking lot and there was snow and ice between the parked cars. Ms. Moore proceeded to step between two parked cars and, while stepping over the snow, she fell and broke her leg. After undergoing an operation to repair her broken leg, Ms. Moore suffered brain damage and subsequently died.

¶ 6 Plaintiff, Roberta Minor Moore, as special administrator, filed a two-count complaint alleging the Park District negligently created an unsafe unnatural accumulation of ice and snow on its property which caused injuries and the death of her decedent, Sylvia Lee Moore. Count I asserted a survivor's action while count II alleged wrongful death. The Park District moved for summary judgment, which the trial court denied on March 18, 2010. On April 13, 2010, the Park District filed a motion to certify two questions for interlocutory appeal pursuant to Rule 308, and supplemented its motion on May 10, 2010. On October 14, 2010, the trial court vacated its denial of the Park District's motion for summary judgment and certified the question now before this court on October 29, 2010. The Park District filed an application for leave to appeal pursuant to Rule 308, which this court granted on December 3, 2010.

¶ 7 ANALYSIS

¶ 8 The interpretation of a statute, such as the Tort Immunity Act in this case, is a question of law that we review de novo. Abruzzo v. City of Park Ridge, 231 Ill.2d 324, 332, 325 Ill.Dec. 584, 898 N.E.2d 631 (2008). In reviewing a statute, we must ascertain and give effect to the intent of the legislature. Id. The intent of the legislature is best found by the plain and ordinary meaning of the statute's language. Id. Statutory aids of construction will not be applied if the language of the statute is clear and unambiguous. Id.

¶ 9 The Tort Immunity Act does not create any new duties, only immunities and defenses. Bubb v. Springfield School District 186, 167 Ill.2d 372, 378, 212 Ill.Dec. 542, 657 N.E.2d 887 (1995). The public entity bears the burden of proving whether it is immune from a claim under the Act. Van Meter v. Darien Park District, 207 Ill.2d 359, 370, 278 Ill.Dec. 555, 799 N.E.2d 273 (2003). The Act is to be strictly construed against the public entity

[351 Ill.Dec. 533 , 951 N.E.2d 1197]

because it is in derogation of the common law. Aikens v. Morris, 145 Ill.2d 273, 278, 164 Ill.Dec. 571, 583 N.E.2d 487 (1991). Section 3–106 of the Act provides an affirmative defense a public entity may raise.

“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). 745 ILCS 10/3–106 (West 2008).

¶ 10 If a public entity proves that the affirmative defense provided by section 3–106 applies, tort liability is precluded. Bubb, 167 Ill.2d at 378, 212 Ill.Dec. 542, 657 N.E.2d 887. However, section 3–106 does not apply if an alleged liability is not based on the existence of a condition of public property. McCuen v. Peoria Park District, 163 Ill.2d 125, 128, 205 Ill.Dec. 487, 643 N.E.2d 778 (1994).

¶ 11 Our supreme court, in McCuen v. Peoria Park District, addressed whether a public entity was immune from a claim of negligence under section 3–106 of the Act. McCuen, 163 Ill.2d at 128–29, 205 Ill.Dec. 487, 643 N.E.2d 778. In McCuen, a park district operated a mule-drawn hayrack ride in one of its parks. Id. at 126, 205 Ill.Dec. 487, 643 N.E.2d 778. As the hayrack riders were climbing onto the hayrack, an employee of the park district caused “the mule team to suddenly bolt and run off with the driverless hayrack.” Id. at 126–27, 205 Ill.Dec. 487, 643 N.E.2d 778. Several people were injured as they were thrown off the hayrack. Id. at 127, 205 Ill.Dec. 487, 643 N.E.2d 778. The court held that section 3–106 immunity did not apply, stating:

“We do not believe that a driverless hayrack is a condition of public property within the meaning of section 3–106. Plaintiffs do not claim that the hayrack itself was dangerous, defective or negligently maintained, only that the mule team was not handled properly by the park district employee. The handling of the mule team does not relate to the condition of the hayrack itself. If otherwise safe property is misused so that it is no longer safe, but the property itself remains unchanged, any danger presented to the property is due to the misuse of the property and not to the condition of the property.” Id. at 129, 205 Ill.Dec. 487, 643 N.E.2d 778.

In explaining the holding of McCuen, this court has stated that “[i]n effect, the supreme court [in McCuen ] held that section 3–106 immunizes defendant for liability in negligence where the property itself is unsafe, but that section 3–106 does not immunize defendant for unsafe activities conducted upon otherwise safe property.” Nelson v. Northeast Illinois Regional Commuter R.R. Corp., 364 Ill.App.3d 181, 190, 301 Ill.Dec. 19, 845 N.E.2d 884 (2006).

¶ 12 In Stein v. Chicago Park District, 323 Ill.App.3d 574, 256 Ill.Dec. 751, 752 N.E.2d 631 (2001), this court addressed whether a park district was immune under section 3–106 of the Act due to a condition on public property. In Stein, the plaintiff tripped over a watering hose that had been placed across a sidewalk by two employees of the Chicago park district. Id. at 576, 256 Ill.Dec. 751, 752 N.E.2d 631. This court defined “condition” as “part of the property's ‘mode or state of being’ [citation], i.e., part of the property itself.” Id. at 577, 256 Ill.Dec. 751, 752 N.E.2d 631 quoting American Heritage Dictionary 290 (3d coll. ed.1993). This court held that

[351 Ill.Dec. 534 , 951 N.E.2d 1198]

section 3–106 does not apply because the watering hose was not a “condition” under the Act and was not part of the property. Id. Specifically, the hose was not a condition under the Act because it “was moved from place to place within the park to water plants, then returned to storage at the end of the day” and because the hose “was not affixed to the property in such a way as to become a part of the property itself.” Id.

¶ 13 In construing the Act strictly against the Park District, we cannot say that the unnatural accumulation of snow and ice is a “condition” under section 3–106 of the Act. Aikens, 145 Ill.2d at 278, 164 Ill.Dec. 571, 583 N.E.2d 487; 745 ILCS 10/3–106 (West 2008). Plaintiff alleges the Park District employee moved the snow into a dangerous position. The snow on the sidewalk was pushed to the curb, creating piles, and snow removal from the parking lot caused cars to park in the handicapped zone in such a way as to block easy access to the parking lot. As in McCuen, the parking lot and sidewalk themselves are not dangerous. Here, the plaintiff alleges the danger and...

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3 cases
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