Donath v. Village of Plainfield

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Appellate Court Date: 2021.10.13

09:58:32 -05'00'

Donath v. Village of Plainfield, 2020 IL App (3d) 190762

Appellate Court STACY DONATH, Plaintiff-Appellant, v. THE VILLAGE OF

Caption PLAINFIELD, Defendant-Appellee.

District & No. Third District

No. 3-19-0762

Filed October 6, 2020

Decision Under Appeal from the Circuit Court of Will County, No. 17-L-579; the Hon.

Review Raymond E. Rossi, Judge, presiding.

Judgment Reversed and remanded.

Counsel on Steven A. Berman, of Anesi, Ozmon, Rodin, Novak & Kohen, Ltd., of

Appeal Chicago, for appellant.

Megan M. Olson and James B. Harvey, of Tracy, Johnson & Wilson,

of Joliet, for appellee.

Panel JUSTICE O’BRIEN delivered the judgment of the court, with opinion.

Justice McDade concurred in the judgment and opinion.

Justice Wright dissented, with opinion.

OPINION

¶1 The plaintiff, Stacy Donath, appeals from an order granting summary judgment in favor of

the defendant, Village of Plainfield (Village), in an action to recover damages for injuries

sustained when Donath tripped and fell on a public street while leaving a street festival.

¶2 I. BACKGROUND

¶3 On July 3, 2017, Donath filed a complaint in negligence against the Village, alleging that

the Village was liable for injuries sustained when Donath tripped and fell on a public street.

Donath alleged the Village “had a duty to exercise ordinary care to operate, manage, maintain

and/or control *** a certain street and sewer grate located” on Fox River Street. Donath alleged

that the Village “carelessly and negligently caused and/or permitted [Fox River Street] to

become and remain in a dangerous condition.” Specifically, Donath alleged that she tripped

and fell on July 16, 2016, because Fox River Street was “broken, cracked and in disrepair”;

Fox River Street’s sewer grate was “in disrepair, sunken and unsafe”; and the Village failed to

repair, barricade, or inspect and warn Donath of the dangerous conditions on Fox River Street.

¶4 The Village filed an answer to Donath’s complaint without raising any affirmative

defenses. Discovery later revealed that Donath tripped and fell on Fox River Street while

leaving an evening concert at Plainfield Fest, which is a weekend street festival held in the

downtown area of the Village. Plainfield Fest includes a bandstand, beer tents, carnival rides,

and food and craft vendors on closed public streets and certain private property. As the

Village’s largest annual community event with a 20-plus year history, Plainfield Fest attracts

thousands of daily attendees and 10,000 to 15,000 total attendees Friday through Sunday.

Map of the 2016 Plainfield Fest From the Trial Court Record

The partial closure of Fox River Street during Plainfield Fest was announced by the Village

through a press release. The Village partially closed Fox River Street with barricades and a

police checkpoint. The Village prohibited vehicular traffic on Fox River Street by everyone

except its residents, who obtained and displayed a pass from the Village to access the officer

checkpoint, and business and street festival personnel.

¶5 By limiting vehicular traffic on Fox River Street, as depicted in the map above, the Village

allowed pedestrians to use Fox River Street as a walkway between Plainfield Fest’s carnival

area 1 and the vendor area. This walkway also created a direct route for pedestrians to walk to

and from Plainfield Fest, generally, and the designated parking area at Plainfield Central High

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School. Fox River Street was not, however, the location of any Plainfield Fest activities. When

plaintiff tripped and fell, she was walking on Fox River Street to her vehicle near Plainfield

Fest’s designated parking area.

¶6 Discovery also confirmed Fox River Street is closed during an annual five-kilometer run.

The five-kilometer run does not traverse Fox River Street, but like Plainfield Fest, portions of

Fox River Street are closed for use by the five-kilometer run’s personnel, police and fire

department personnel, emergency management services, and vendors to make deliveries.

¶7 On September 27, 2019, the Village filed a motion for summary judgment under section

2-1005 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1005 (West 2018)). The Village

argued “there is no issue of material fact concerning the recreational nature of the streets being

used to accommodate the easy and safe movement of large crowds at” Plainfield Fest.

According to the Village, if the public property was intended or permitted to be used for

recreation, then, regardless of the primary purpose of the public property, section 3-106 of the

Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act)

(745 ILCS 10/3-106 (West 2016)) afforded immunity to the local public entity, unless the

injuries were proximately caused by willful and wanton conduct.

¶8 In her response in opposition to summary judgment, Donath argued that her injuries were

not sustained on recreational property. In her view, “Fox River Street was a partially closed

residential street that pedestrians could use to access the festival, but was not itself ‘recreational

property’ ” (emphases in original) under section 3-106 of the Tort Immunity Act. Donath

contended that she tripped and fell outside the perimeter of where any recreational activities

may have been permitted a few days a year. Donath maintained “the street was closed merely

to allow pedestrians to safely walk without the intrusion of motor vehicles in the road.” At a

minimum, Donath argued an issue of material fact existed as to whether a public street can be

recreational property under section 3-106 of the Tort Immunity Act.

¶9 On November 8, 2019, the Village filed a reply to plaintiff’s response in opposition to

summary judgment. According to the Village, section 3-106 of the Tort Immunity Act focuses

upon “whether the public property was intended or permitted to be used for recreational

purposes.” In the Village’s view, under the existing case law, section 3-106 of the Tort

Immunity Act applies to Fox River Street because “walkways increase the usefulness of the

property being used for the actual recreation.” Since street festival attendees could park at the

designated parking area at Plainfield Central High School and then walk on the closed public

streets, including Fox River Street, to Plainfield Fest, the Village argued section 3-106 of the

Tort Immunity Act applied to incidents involving pedestrians walking on those public streets.

¶ 10 After a hearing on the motion, the circuit court granted summary judgment in favor of the

Village, and Donath appealed.

¶ 11 II. ANALYSIS

¶ 12 Donath contends that the circuit court erred in applying the recreational property immunity

exception and granting summary judgment to the Village. Donath argues that the portion of

Fox River Street where she fell was not recreational property pursuant to section 3-106 of the

Tort Immunity Act. Donath further argues that the residential street where she fell was outside

of any arguably recreational activity connected to the annual Plainfield Fest and it was not

exclusively or primarily intended to increase the usefulness of recreational property. The

Village contends that the circuit court properly granted summary judgment because there was

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no genuine issue of material fact precluding a finding that the recreational property exception

applied. The Village argued that Fox River Street was, and is, utilized for recreational purposes

all year round as a direct access point to Village Green Park, as well as during Plainfield Fest

and other special events. Thus, the Village argues, since Donath presented no evidence of

willful and wanton conduct by the Village, summary judgment was appropriate.

¶ 13 Summary judgment is appropriate only “if the pleadings, depositions, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-

1005(c) (West 2018); In re Estate of Hoover, 155 Ill. 2d 402, 410-11 (1993). The case must

hinge on a question of law, and the moving party’s right to summary judgment must be “clear

and free from doubt.” Hoover, 155 Ill. 2d at 410. In this case, the relevant facts surrounding

Donath’s trip and fall incident are uncontested. On appeal, the parties only dispute the

applicability of section 3-106 of the Tort Immunity Act.

¶ 14 The purpose of the Tort Immunity Act “is to protect local public entities and public

employees from liability arising from the operation of government.” 745 ILCS 10/1-101.1

(West 2016); accord Harris v. Thompson, 2012 IL 112525, ¶ 17. Importantly, our legislature

“sought to prevent public funds from being diverted from their intended purpose to the

payment of damage claims.” Harris, 2012 IL 112525, ¶ 17. Thus, the Tort Immunity Act

“grants only immunities and defenses.” 745 ILCS 10/1-101.1 (West 2016); accord Harris,

2012 IL 112525, ¶ 17; Bubb v. Springfield School District 186, 167 Ill. 2d 372, 378 (1995).

¶ 15 Coupled with the overall purpose of the Tort Immunity Act, section 3-106 affords

immunity to local public entities “to encourage and promote the development and maintenance

of parks, playgrounds, and other recreational areas.” Moore v. Chicago Park District, 2012 IL

112788, ¶¶ 9, 22. Clearly, our legislature recognized, without affording immunity to local

public entities, “public property intended or permitted to be used for recreational purposes”

could suffer or become less available to the public. 745 ILCS 10/3-106 (West 2016).

¶ 16 Notably, the Tort Immunity Act does not create duties but, instead, “codifies existing

common law duties[ ] to which the delineated immunities apply.” Harris, 2012 IL 112525,

¶ 17; see also Bubb, 167 Ill. 2d at 377-78. If a court finds a duty exists, then it will address the

separate issue of whether the Tort Immunity Act applies. Harris, 2012 IL 112525, ¶ 17.

¶ 17 A recitation of the relevant provisions of the Tort Immunity Act is in order. Section 3-

102(a) provides:

“Except as otherwise provided in this Article, a local public entity has the duty to

exercise ordinary care to maintain its property in a reasonably safe condition for the

use in the exercise of ordinary care of people whom the entity intended and permitted

to use the property in a manner in which and at such times as it was reasonably

foreseeable that it would be used, and shall not be liable for injury unless it is proven

that it has actual or constructive notice of the existence of such a condition that is not

reasonably safe in reasonably adequate time prior to an injury to have taken measures

to remedy or protect against such condition.” 745 ILCS 10/3-102(a) (West 2016).

In addition, the Village relies upon the immunity contained in section 3-106 of the Tort

Immunity Act, which states:

“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

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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.” Id. § 3-106. 1

Section 3-106 provides an affirmative defense that, if “properly raised and proven” by a

defendant, bars a plaintiff’s “right to recovery,” unless there is willful and wanton conduct

proximately causing injury. Bubb, 167 Ill. 2d at 378; 745 ILCS 10/3-106 (West 2016).

¶ 18 As a preliminary matter, the Village failed to raise section 3-106 as an affirmative defense

in its answer or in a motion to dismiss under section 2-619(a)(9) of the Code (735 ILCS 5/2-

619(a)(9) (West 2018)). Generally, under section 2-613(d) of the Code (id. § 2-613(d)), this

procedural oversight would result in a waiver of section 3-106 immunity. See Hanley v. City

of Chicago, 343 Ill. App. 3d 49, 53-54 (2003). However, our court has found, in the context of

the Tort Immunity Act, “an affirmative defense is not waived, despite the fact that it was not

raised in an answer to a complaint, if the defense is subsequently raised without objection in a

motion for summary judgment.” Alexander v. Consumers Illinois Water Co., 358 Ill. App. 3d

774, 780 (2005); accord Hanley, 343 Ill. App. 3d at 53-54. This authority applies here since

plaintiff has never objected to the Village’s decision to raise section 3-106 for the first time in

a motion for summary judgment. As such, we are not constrained by principles of waiver and

may reach the merits. See Alexander, 358 Ill. App. 3d at 780; Hanley, 343 Ill. App. 3d at 53-

54.

¶ 19 Donath relies on a case from this court in support of her argument that there are questions

of fact regarding the recreational character of the street precluding summary judgment, John

v. City of Macomb, 232 Ill. App. 3d 877 (1992). Similar to Donath, the plaintiff in John

attended an annual festival to listen to a band, which was playing on the courthouse lawn. Id.

at 879. The plaintiff fell after stepping into a parking meter hole on the courthouse lawn, which

was located near a closed “inside street” surrounding the courthouse. Id. Our court found that

whether the plaintiff’s fall in John took place in an area that was intended or permitted to be

used for recreational purposes remained an issue of material fact. Id. at 879-80. In making that

finding, this court questioned whether permitting a band concert on the courthouse lawn, which

was not an area generally used for recreational activity, altered the character of the lawn. Id. at

880.

¶ 20 John was cited with approval by our supreme court in Bubb, 167 Ill. 2d at 379, for the

holding that immunity depends not on the activity performed at any given time but on the

character of the property as a whole. In Bubb, a student was injured when she rode her bicycle

off the edge of a sidewalk while leaving school. The sidewalk in that case was painted with

yellow four-square lines and was intended to be used as part of the school playground, so the

school district was entitled to summary judgment on the basis that there was no genuine issue

of material fact that the sidewalk where the student was injured was intended to be used for

recreational purposes. Id. at 384. When determining the character and nature of public

property, courts should consider whether the public property “has been used for recreation in

1

“Willful and wanton conduct” under the Tort Immunity Act means “a course of action which

shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter

indifference to or conscious disregard for the safety of others or their property.” See 745 ILCS 10/1-

210 (West 2016).

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the past or whether recreation has been encouraged there.” Id. at 382. However, the Bubb court

cautioned, “[p]roviding immunity to any public property where recreation might occur would

eviscerate the duty codified in section 3-102” because, “at some point, the use of public

property for recreation may be so incidental that section 3-106” should not apply. Id.

¶ 21 In this case, the record establishes Fox River Street is a public street, albeit located near a

park, that is occasionally closed during events in the Village. The record also establishes that

Fox River Street itself has never been used for recreation. Based on our supreme court’s

guidance in Bubb, we conclude the undisputed material facts reveal Fox River Street is not

“similar in nature to the types of properties listed in” section 3-106, as to itself be “intended or

permitted to be used for recreational purposes.” See id. at 378, 382-83; 745 ILCS 10/3-106

(West 2016).

¶ 22 Our analysis does not end here, though, because our supreme court provided further

guidance on the scope of section 3-106 immunity in the case of Sylvester v. Chicago Park

District, 179 Ill. 2d 500 (1997). Sylvester discusses when section 3-106 of the Tort Immunity

Act may immunize a local public entity from injuries sustained on nonrecreational public

property, such as Fox River Street in the case at bar, “that increase[s] the usefulness of public

property intended or permitted to be used for recreational purposes.” Id. at 508; 745 ILCS 10/3-

106 (West 2016).

¶ 23 In Sylvester, 179 Ill. 2d at 501, a spectator was injured on a walkway that connected a park

district parking lot to nearby Soldier Field. The Illinois Supreme Court held that immunity

under section 3-106 of the Tort Immunity Act applied because the walkways and parking lots

adjacent to Soldier Field, while not primarily recreational themselves, increased the usefulness

of Soldier Field, which was recreational. Id. at 508. Our supreme court emphasized that the

parking lot where the spectator fell “was an integral part of the Soldier Field recreational

facility” and held the circuit court erred by focusing only on whether the parking lot by itself

was used for recreational purposes. Id. at 509-10.

¶ 24 A few years later, the Illinois Supreme Court in Rexroad v. City of Springfield, 207 Ill. 2d

33 (2003), distinguished Sylvester on the basis that Soldier Field’s adjacent parking lots and

walkways served to benefit Soldier Field only and thus increased the usefulness of the stadium,

while a high school parking lot can provide access to several different areas of the school not

used for recreational purposes. Id. at 41-42 (the plaintiff was injured while crossing a parking

lot that served the entire school and only incidentally the football field). The court held that, if

the use is only incidental to the recreational facility, then immunity under section 3-106 of the

Tort Immunity Act would not apply. Id. at 43.

¶ 25 Thus, to sustain the grant of summary judgment to the Village, we must find that there is

no genuine issue of fact that Fox River Street increases the usefulness of public property

intended or permitted to be used for recreational purposes. Primarily, the Village argues that

this public property is the area blocked off for the Plainfield Fest and the annual five-kilometer

run. As the case law indicates, in determining whether property is recreational in nature for the

purposes of immunity, the focus is on the character of the property as a whole, not the activity

performed at any given time. Bubb, 167 Ill. 2d at 379. Donath was injured when she fell on a

public street, while she was leaving a festival that took place on other public streets. There is,

at a minimum, a question of material fact whether a festival or a race on public streets a few

days a year is sufficient to alter the character of the public streets and make them recreational

in nature. See John, 232 Ill. App. 3d at 880 (“permitting a band concert, without more, does

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not so alter the character of a public area not generally used for recreational activity that it

would necessarily fall within the intended scope of section 3-106 of the [Tort Immunity] Act”).

But see Bubb, 167 Ill. 2d at 382 (four-square lines painted on a sidewalk evinced an intent to

use that part of the public sidewalk for recreational purposes).

¶ 26 The Village also argues that Fox River Street is recreational in nature because it increases

the usefulness of Village Green Park by providing access to the park all year round. We find

that argument unavailing and an example of when the use of public property for recreation may

be so incidental that immunity would not apply. See Bubb, 167 Ill. 2d at 382 (“Providing

immunity to any public property where recreation might occur would eviscerate the duty

codified in section 3-102.”). The record indicates that Fox River Street is a public street,

connecting with other public streets. There are no allegations or evidence in the record that

Fox River Street was, for example, constructed specifically to provide access to the park. See

Callaghan v. Village of Clarendon Hills, 401 Ill. App. 3d 287, 293 (2010) (summary judgment

on the basis of immunity upheld because the sidewalk where the plaintiff fell was adjacent to

the park, maintained by the park, and included in the development of the park to provide

access).

¶ 27 We find that there are questions of material fact regarding whether the use of Fox River

Street as a pedestrian walkway for a few days a year increased the usefulness of any public

property intended or permitted to be used for recreational purposes. Thus, the circuit court

erred in granting the Village summary judgment on the basis of immunity under section 3-106

of the Tort Immunity Act.

¶ 28 III. CONCLUSION

¶ 29 The judgment of the circuit court of Will County is reversed and remanded for further

proceedings.

¶ 30 Reversed and remanded.

¶ 31 JUSTICE WRIGHT, dissenting:

¶ 32 Initially, I believe the Village forfeited immunity under section 3-106. I write separately to

discuss, in part, my view that this court should have the authority to reverse the trial court’s

grant of summary judgment due to the Village’s procedural oversights under section 2-613(d)

of the Code. Section 2-613(d) provides:

“The facts constituting any affirmative defense ***, and any defense which by other

affirmative matter seeks to avoid the legal effect of or defeat the cause of action set

forth in the complaint, counterclaim, or third-party complaint, in whole or in part, and

any ground or defense, whether affirmative or not, which, if not expressly stated in the

pleading, would be likely to take the opposite party by surprise, must be plainly set

forth in the answer or reply.” (Emphases added.) 735 ILCS 5/2-613(d) (West 2018).

Without question, the Village failed to “plainly set forth” section 3-106 “in [its] answer or

reply.” See id. However, perhaps unaware of the mandates of section 2-613(d) or its application

in the case law, plaintiff did not object to the Village’s motion for summary judgment on

forfeiture grounds. Thus, the majority correctly recognizes and then follows the existing case

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law holding that the Village’s forfeiture was inconsequential based on the posture of this

record. See Alexander, 358 Ill. App. 3d at 780; Hanley, 343 Ill. App. 3d at 53-54.

¶ 33 In this separate offering, I caution against such a reading of section 2-613(d), which

extinguishes any incentive for a defendant to fully develop its pleadings, both initially and

through amendments, before moving for summary judgment. Notably, the Tort Immunity Act

was designed by our legislature to expressly “grant[ ] only immunities and defenses.” See 745

ILCS 10/1-101.1(a) (West 2016); Harris, 2012 IL 112525, ¶ 17; Bubb, 167 Ill. 2d at 378. As

such, the Tort Immunity Act serves only to benefit the municipality defending against a

lawsuit.

¶ 34 Therefore, I believe defendants, like the Village, must be particularly careful to preserve

the immunities and defenses afforded by the Tort Immunity Act. I respectfully disagree that,

when a defendant fails to do so by complying with section 2-613(d), the negative consequences

of a forfeiture should be felt solely by the plaintiff. It seems counterintuitive that a defendant,

upon filing a motion for summary judgment, may resurrect an affirmative defense that was

previously overlooked and never discussed on the record. Nevertheless, in the absence of

guidance from our supreme court, I agree with the majority’s holding that the negative

consequences arising from this appeal’s procedural posture must rest on plaintiff’s shoulders.

¶ 35 Turning to the merits, I respectfully disagree that this matter should be reversed and then

remanded to the trial court due to outstanding issues of material fact. I believe the facts are

undisputed and justify the trial court’s decision granting summary judgment to the Village

under section 3-106. Therefore, ignoring the Village’s forfeiture, I would affirm the trial court.

¶ 36 Initially, in my view, our prior decision in John largely contains dicta and is not helpful to

our resolution of this appeal. In John, the skeletal facts prevented our court from deciding

whether the courthouse lawn or the “inside street” had been altered into public property

“intended or permitted to be used for recreational purposes” under section 3-106. See John,

232 Ill. App. 3d at 879-80. Based on the absence of factual deficiencies in the present appeal,

I respectfully find John unpersuasive and not controlling. See id.

¶ 37 Importantly, an application of section 3-106 must be based on a case-by-case examination

of the nature and past use of the public property. See Bubb, 167 Ill. 2d at 384. In my view, the

undisputed facts contained in this unique record convincingly establish the purpose of the

Village’s public street closures was to alter, significantly, the character of those public streets

from a nonrecreational to a recreational nature. The significant measures taken by the Village

subordinated the primary and independent purpose of its public streets for vehicular traffic to

the recreational purposes of Plainfield Fest. I respectfully disagree with the suggestion that the

Village’s use of the public streets for recreation, pursuant to those significant measures, was

so incidental that section 3-106 should not apply. See id. at 382. Therefore, under section 3-

106, I would conclude that the streets comprising Plainfield Fest were “public property

intended or permitted to be used for recreational purposes.” 745 ILCS 10/3-106 (West 2016).

¶ 38 Further, for purposes of Fox River Street, I would follow Sylvester. Based on that case, I

conclude the Village converted Fox River Street into a “walkway[ ] *** adjacent to” Plainfield

Fest, which undisputedly increased the usefulness of the other public streets serving as the

location for the annual street festival. See Sylvester, 179 Ill. 2d at 508. As such, I would also

hold that the circuit court correctly found section 3-106 immunizes the Village from tort

liability because Fox River Street was “an integral part” of Plainfield Fest as a whole. See id.

at 509.

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¶ 39 In support of this conclusion, I point out that the layout of the area dedicated to Plainfield

Fest is not disputed. Further, the record consistently evidences that 10,000 to 15,000 persons

were expected to attend Plainfield Fest. These attendees could not simply drive into the

immediate area of the street festival and park where the festivities were ongoing. Due to this

reality, the Village converted the Plainfield Central High School parking lot into a designated

parking area for Plainfield Fest. The Village also erected barricades and a police checkpoint at

the entrance to Fox River Street, which served to limit vehicular traffic on that street to

residents displaying a Village-issued pass and other street festival or business personnel.

¶ 40 In this way, the Village converted Fox River Street into a “walkway[ ] *** adjacent to”

Plainfield Fest. See id. at 508. As a result of the conversion, pedestrians could safely walk on

Fox River Street to and from the designated parking area and Plainfield Fest, generally.

Further, within Plainfield Fest, pedestrians could safely walk on Fox River Street to and from

carnival area 1 and the vendor area. In light of these undisputed facts, I believe Fox River

Street was undoubtedly useful to the recreational purposes of Plainfield Fest.

¶ 41 In conclusion, I respectfully disagree with the majority that there are outstanding issues of

material fact that precluded the trial court from deciding the motion for summary judgment on

the merits. Based on this record, which requires our court to ignore the Village’s forfeiture of

section 3-106, I would affirm the trial court’s decision in favor of the Village. Importantly, the

trial court’s ruling was consistent with and advances the legislative intent of section 3-106 by

encouraging and promoting the recreational purposes of the Village’s largest community event.

See Harris, 2012 IL 112525, ¶ 17; Moore, 2012 IL 112788, ¶¶ 9, 22.

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