O'Toole v. Chi. Zoological Soc'y

• Decision Date: 28 August 2014
• Docket Number: No. 1–13–2652.,1–13–2652.
• Parties: Kristine O'TOOLE, Plaintiff–Appellant, v. The CHICAGO ZOOLOGICAL SOCIETY, d/b/a Brookfield Zoo, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

17 N.E.3d 869

Kristine O'TOOLE, Plaintiff–Appellant

v.The CHICAGO ZOOLOGICAL SOCIETY, d/b/a Brookfield Zoo, Defendant–Appellee.

No. 1–13–2652.

Appellate Court of Illinois, First District, Fourth Division.

Aug. 28, 2014.

William J. McMahon and George T. Brugess, both of Hoey & Farina, P.C., of Chicago, for appellant.

Michael Resis and Nicholas G. Kourvetaris, both of SmithAmundsen LLC, of Chicago, for appellee.

OPINION

Justice LAVIN

delivered the judgment of the court, with opinion.

¶ 1 This appeal arises from the circuit court's order dismissing plaintiff's complaint as untimely pursuant to section 2–619(a) of the Code of Civil Procedure (the Code) (735 ILCS 5/2–619(a)

(West 2010)). Plaintiff Kristine O'Toole filed a single-count negligence complaint against defendant, the Chicago Zoological Society, d/b/a Brookfield Zoo, within two years of sustaining personal injuries at the zoo. The circuit court, however, apparently agreed with defendant's contention that the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1–101 et seq. (West 2010)) applied to defendant, and thus, that act's one-year statute of limitations barred plaintiff's action. On appeal, plaintiff asserts that the circuit court erred by dismissing the complaint because defendant did not constitute a local public entity, as required to benefit from the Tort Immunity Act's shorter statute of limitations. We agree, as the government neither owned defendant nor controlled its daily operations.

¶ 2 I. BACKGROUND

¶ 3 On July 26, 2012, plaintiff filed a complaint alleging that while visiting defendant's premises on August 7, 2010, she tripped on the pavement, causing severe personal injuries. In addition, plaintiff alleged that defendant, through its negligent acts or omissions, breached its duty to exercise reasonable care to maintain and operate the premises, proximately causing plaintiff's fall and injuries.

¶ 4 Defendant subsequently moved to dismiss the complaint pursuant to section 2–619 of the Code, arguing, in pertinent part, that the complaint filed almost two years after plaintiff's injury occurred was not timely. Specifically, defendant argued that it constituted a local public entity, to which the Tort Immunity Act's one-year statute of limitations applied (745 ILCS 10/8–101(a)

(West 2010)), because defendant was a “not-for-profit corporation organized for the purpose of conducting public business” (745 ILCS 10/1–206 (West 2010) ). But see Borg v. Chicago Zoological Society, 256 Ill.App.3d 931, 932–33, 194 Ill.Dec. 809, 628 N.E.2d 306 (1993) (where defendant argued that the two-year statute of limitations applied). In support of its allegation that it conducted public business, defendant further alleged that it was organized for the purpose of maintaining a zoo on land owned by the Forest Preserve District of Cook County (the District), and pursued an activity that benefitted the entire community without limitation. In addition, defendant argued that pursuant to the Cook County Forest Preserve District Act (the District Act) (70 ILCS 810/1 et seq. (West 2010)), the District could permit defendant to maintain a zoo on the District's land subject to the District's control and supervision. Defendant also alleged that an agreement formed between defendant and the District in 1986 gave the District control over defendant's operation and maintenance of the zoo.

¶ 5 Attached to the motion was the 1986 agreement for defendant to maintain and operate a zoo on the District's land. The agreement stated that defendant was organized for the purpose of maintaining, and operating a zoo in Cook County, “making collections of animals and promoting zoology and kindred subjects and for the instruction and recreation of the people.” In furtherance of the agreement, defendant would provide animals and collections, and devote all funds, donations and income to the establishment, maintenance, operation and development of the zoo. Defendant was also required to operate and maintain the zoo, as well as its buildings, structures, enclosures and other property. In addition, the District would levy and collect taxes needed for maintenance and operation of the zoo and defendant would annually submit an itemized budget. Defendant did not require approval, however, with respect to expenditures made from financial sources other than the District. Moreover, the agreement provided that from the funds budgeted by the District, defendant shall do the following:

“[S]elect and provide all animals, equipment, materials and supplies necessary and proper to carry out the purpose of this agreement, and shall have entire control and management, of said [zoo] and its collections, and shall appoint, employ, direct, control, promote or remove all persons engaged in the management, care or operation of [the zoo], and shall fix and pay their respective salaries and compensation.” (Emphasis added.)

Defendant could also grant privileges and concessions with the District's approval of rates and times of operation. Additionally, the agreement required the zoo to be free to the public once a week and at all times for school groups, as required by the District Act (see 70 ILCS 810/40 (West 2010)

), and set the maximum visitors fee to be charged at the time the agreement was executed.

¶ 6 The agreement also placed certain restrictions on defendant's control of the property itself. Defendant could not, without the District's consent, encumber or remove any building, enclosure, structure, animal, or any property within the zoo. With limited exceptions, no living trees could be cut down or removed without the District's consent. In addition, all property purchased by defendant with District funds constituted property of the District but defendant could improve its collections through the exchange or sale of animals not needed for exhibition.

¶ 7 Furthermore, the agreement provided that the president of the board of commissioners of the District (District's Board) would be an exofficio member of the defendant's board of trustees and would select three other members of the District's Board to join him as exofficio governing members of defendant. The commissioners of the District and the heads of departments were also granted access to the zoo at all times for general police visitation and supervision, with due regard for the animals' welfare. In addition, the agreement provided that every 20 years, either party could choose to terminate the contractual relationship. Moreover, the agreement stated as follows:

“By virtue of the Society having the entire control and responsibility and management as well as the operation and maintenance of the aforesaid and described area, and the collections maintained thereon, it is further understood and agreed that the Society shall cause to be procured a policy, or policies of public liability and property damage insurance wherein the District shall be identified as one of the named insured with general public liability coverage for personal injury* * *.” (Emphasis added.)

Defendant also attached to its motion two cases in which the circuit court of Cook County had determined that defendant was a local public entity entitled to benefit from the Tort Immunity Act.

¶ 8 In response, plaintiff disputed that defendant constituted a local public entity to which the Tort Immunity Act's one-year statute of limitations applied because defendant did not conduct public business. Plaintiff relied on defendant's response to plaintiff's requests to admit facts. Specifically, defendant had stated that it was not a department of any government and was not created by a government entity but it did not operate entirely separately from the District, which reviewed defendant's annual budget. In addition, although defendant's board of trustees had a role in the development of certain unidentified policies pertaining to the zoo's operation, over 90% of defendant's board of trustees and governing members were neither employees nor elected officials of the District. In addition, defendant denied that the District had no role in the zoo's operation or maintenance, again citing the District's requisite approval of the budget, but admitted that defendant received less than 50% of its revenue from tax funds raised by the District. Furthermore, defendant's pleading acknowledged that it employed and directly paid over 200 non-public employees, who did not benefit from a State pension or workers' compensation. Defendant also followed the Occupational Safety and Health Administration's (OSHA) guidelines, which did not apply to government employers. See 29 U.S.C. § 652(5)

(Supp. IV 1998).

¶ 9 Defendant's reply in support of the motion to dismiss argued that it was organized for the purpose of conducting public business because it pursued an activity that benefits the entire community and was directly owned by the District. Following a hearing, the transcript of which is not included in our record on appeal, the circuit court granted defendant's motion to dismiss with prejudice. Although the court's order was brief, the parties agree on appeal that the court dismissed the complaint as untimely.

¶ 10 II. ANALYSIS

¶ 11 On appeal, plaintiff asserts the circuit court erred in granting defendant's motion to dismiss the complaint as untimely because defendant was not a local public entity to which the Tort Immunity Act's one-year statute of limitations applied. We review the circuit court's dismissal of a complaint pursuant to section 2–619 de novo. Hubble v. Bi–State Development Agency of the Illinois–Missouri Metropolitan District, 238 Ill.2d 262, 267, 345 Ill.Dec. 44, 938 N.E.2d 483 (2010)

. A section 2–619 motion admits the sufficiency of the complaint, but asserts an affirmative matter that defeats the plaintiff's claim. Bjork v. O'Meara, 2013 IL 114044, ¶ 21, 369 Ill.Dec. 313, 986 N.E.2d 626. In addition, the failure to act in a timely manner is one such affirmative...