Sullivan v. Midlothian Park Dist.

• Decision Date: 30 March 1972
• Docket Number: No. 43505,43505
• Citation: 51 Ill.2d 274,281 N.E.2d 659
• Parties: Erin Marie SULLIVAN et al., Appellants, v. MIDLOTHIAN PARK DISTRICT et al., Appellees.
• Court: Illinois Supreme Court

Page 659

281 N.E.2d 659

51 Ill.2d 274

Erin Marie SULLIVAN et al., Appellants, v. MIDLOTHIAN PARK DISTRICT et al., Appellees.

No. 43505.

Supreme Court of Illinois.

March 30, 1972.

Louis G. Davidson, Chicago, for appellants.

Howard C. Sorensen and Pretzel, Stouffer, Nolan & Rooney, Chicago (Joseph B. Lederleitner, Chicago, of counsel), for appellees.

GOLDENHERSH, Justice.

Plaintiff, Erin Marie Sullivan, a minor, 7 years of age, by John P. Sullivan, her father and next friend, appeals from the order of the circuit court of Cook County dismissing with prejudice counts I and III of her second amended complaint. In this action plaintiff seeks to recover damages for injuries suffered while riding on a merry-go-round owned and maintained by the defendant, Midlothian Park District. Count I of the second amended complaint alleges ordinary negligence on the part of the park district, the existence of public liability insurance and the waiver of immunity by the district for damages caused by ordinary negligence to the extent of the insurance coverage; count II alleges wilful and wanton misconduct of the park district; count III is a direct action against the defendant insurance carrier, Consolidated Mutual Insurance Company in which plaintiff repeats and realleges the allegations of count I and alleges further that by virtue of section 9--103(b) of the Local Governmental and Governmental Employees Tort Immunity Act (Ill.Rev.Stat.1969, ch. 85, par. 1--101 et seq.) the defendant insurance company

'* * * waived any right to refuse payment or to deny liability for the damages claimed by the plaintiff, by reason of the non-liability of the insured public entity, for the wrongful or negligent acts of said entity or its employees, and also waived any right to refuse payment or to deny liability thereto within the limits of said policy by reason of any non-liability of the insured public entity because of its immunity from suit by reason of defenses and immunities provided in said statute.

12. That the plaintiff alleges in the alternative that she either has a right to proceed in an action against the municipal corporation claimed to be liable, and to recover her damages, or in the event said liability is barred by the provisions of the said Act, which governs actions against local public entities and public employees, or if her right to so recover is barred by the Act, she then by virtue of the provisions of the said policy of insurance and of said Act, if the action against the municipal corporation is barred, has a right to proceed in an action directly against the insurance carrier that issued the said public liability insurance and thereby assumed the responsibilities provided for in said Act by issuing said insurance and waived the defenses and immunities which otherwise would have been available to the said municipal corporation.'

The circuit court found that because of the immunity granted by section 3--106 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill.Rev.Stat.1969, ch. 85, par. 3--106), the park district and its employees were not liable for ordinary negligence, and that this immunity was not waived to the extent of the amount of liability insurance carried by the district as provided in section 9--103(b) of the Act. The circuit court, citing Grasse v. Dealer's Transport Co. (1952), 412 Ill. 179, 106 N.E.2d 124, and Harvey v. Clyde Park District (1964), 32 Ill.2d 60, 203 N.E.2d 573, held section 9--103(b) unconstitutional for the reason that 'no rational difference exists between liability for injuries of all public entities that happen to be protected by liability insurance and the liability of public entitles that happen to be unprotected by an insurance policy.' The circuit court dismissed counts I and III with prejudice, found there was no just reason to delay enforcement or appeal of the orders (Rule 304), and this appeal followed.

Plaintiff contends that section 3--106 which 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 as a park, playground or open area for recreational purposes unless such local entity or public employee is guilty of willful and wanton negligence proximately causing such injury,' violates section 19 of article II and section 22 of article IV of the constitution of 1870, S.H.A. Plaintiff acknowledges that the validity of section 3--106 was considered and upheld in Maloney v. Elmhurst Park District (1970), 47 Ill.2d 367, 265 N.E.2d 654, a personal injury action based on ordinary negligence and seeking to recover damages for injuries suffered by a boy when he fell on an 'ARTIFICIAL HILL' IN THE DEFENDANT'S PARK. in maloney, the circuit court dismissed the action on the basis of section 3--106 and the plaintiff appealed, contending as does the plaintiff here that section 3--106 violated section 19 of article II and section 22 of article IV of the constitution of 1870. We held the statute constitutional and affirmed the judgment of dismissal.

Plaintiff argues correctly that although the Maloney briefs and opinion mention, they do not discuss, the constitutional challenge to the validity of section 3--106 based on section 19 of article II which provided: 'Every person ought to find a certain remedy in the laws for all injuries and wrongs which he may receive in his person, property or reputation * * *.'

It is plaintiff's contention that the effect of section 3--106 is to deny her any remedy for injuries suffered as the proximate result of the negligence of the defendant park district, and citing Heck v. Schupp (1946), 394 Ill. 296, 68 N.E.2d 464, she argues that because it serves to destroy all legal remedies for those injuries section 3--106 is violative of section 19 of article II. She argues, too, that the alleged destruction of the legal remedy deprives her of due process of law.

Provisions similar to section 19 of article II, of the constitution of 1870 were contained in the constitutions of 1818 (art. VIII, sec. 12) and 1848 (art. XIII, sec. 12). An examination of the opinions in which these provisions have been considered demonstrates that section 19 of article II and its predecessors are an expression of a philosophy and not a mandate that a 'certain remedy' be provided in any specific form or that the nature of the proof necessary to the award of a judgment or decree continue without modification. Thus in Heck, a 'Heart Balm' statute was held invalid because its effect was to leave one who suffered injury with no remedy, and in Smith v. Hill (1958), 12 Ill.2d 588, 147 N.E.2d 321, a statute which did not abolish the commonlaw remedy but severely limited the damages recoverable, was held to be valid. In Clarke v. Storchak (1943), 384 Ill. 564, 52 N.E.2d 229, the 'guest statute' (Ill.Rev.Stat.1941, ch. 95 1/2, par. 58a), attacked as being violative of section 19 of article II, was held to be valid, and in the opinion the court specifically rejected the argument that in creating the requirement that there be proof of willful and wanton misconduct in an action by a guest against his host, when prior to the enactment of the section recovery could be had upon proof of negligence, the statute violated the constitutional provision. We find no constitutional infirmity in the statute by reason of sections 2 and 19 of article II of the constitution of 1870 or the dueprocess clause of the fourteenth amendment to the constitution of the United States.

Plaintiff contends next that section 3--106 violates both section 22 of article IV of the constitution of 1870 and the equal-protection clause of the fourteenth amendment in that it creates a special privilege for those local governmental agencies which perform park functions. She argues that these entities are granted immunity from suit for injuries caused by their negligence and that the special privilege so granted is arbitrary, irrational and 'cannot be supported by reason.'

In Maloney v. Elmhurst Park District we said, 'The statute in question here applies equally to all local governmental entities, and comes into operation only where liability of a particular governmental entity is sought to be predicated upon the...