Sylvester v. Chicago Park District

Sylvester v. Chicago Park District, No. 81138 (12/4/97)

NOTICE: Under Supreme Court Rule 367 a party has 21 days

after the filing of the opinion to request a rehearing.

Also, opinions are subject to modification, correction or

withdrawal at anytime prior to issuance of the mandate by

the Clerk of the Court. Therefore, because the following

slip opinion is being made available prior to the Court's

final action in this matter, it cannot be considered the

final decision of the Court. The official copy of the

following opinion will be published by the Supreme Court's

Reporter of Decisions in the Official Reports advance

sheets following final action by the Court.

Docket No. 81138--Agenda 13--March 1997.

ALICE SYLVESTER, Appellee, v. THE CHICAGO PARK

DISTRICT, Appellant.

Opinion filed December 4, 1997.

JUSTICE MILLER delivered the opinion of the court:

Plaintiff, Alice Sylvester, filed a complaint

against defendant, the Chicago Park District, to recover

damages for injuries she sustained as a result of a fall

on Park District property. The complaint alleged the Park

District was negligent in allowing a concrete parking

abutment to block a walkway adjacent to a parking lot

exit located south of Soldier Field.

The Park District moved to dismiss the complaint

pursuant to section 3--106 of the Local Governmental and

Governmental Employees Tort Immunity Act (Tort Immunity

Act) (Ill. Rev. Stat. 1989, ch. 85, par. 3--106). Section

3--106 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 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." Ill. Rev. Stat. 1989, ch. 85,

par. 3--106.

The trial judge denied the Park District's motion to

dismiss.

Following a bench trial, the judge ruled in favor of

plaintiff. However, the judge reduced plaintiff's damages

by 10% due to her comparative negligence. The Park

District appealed. The appellate court affirmed. No. 1--

93--3639 (unpublished order under Supreme Court Rule 23).

The Park District filed a petition for leave to

appeal. 155 Ill. 2d R. 315(a). We allowed the Park

District's petition. We also allowed the Illinois

Association of Park Districts, the Illinois Municipal

League, and the Illinois Governmental Association of

Pools to file a joint amici curiae brief. 155 Ill. 2d R.

345(a). While the appeal was pending here, plaintiff

filed a motion in this court seeking leave to file a

first amended complaint in the trial court. Plaintiff's

motion has been taken with the case.

BACKGROUND

On September 23, 1991, plaintiff and her husband

parked their car at a McCormick Place parking lot and

walked toward Soldier Field in order to meet their

daughters for a Monday evening Chicago Bears football

game. While walking to Soldier Field, plaintiff tripped

over a concrete parking abutment (a "car stop") and fell.

Employees of the Park District admitted that the car stop

was improperly blocking a walkway.

The record reveals that at the time of plaintiff's

fall, the car stop was located on a walkway adjacent to

a parking lot exit at the northeast corner of Soldier

Field's south parking lot. In her complaint, plaintiff

alleged that this location was owned, operated,

possessed, and maintained by the Park District. The Park

District admitted this allegation.

Plaintiff stated in her complaint that she was

walking on Park District property in order to reach

Soldier Field to attend a football game. Plaintiff has

not alleged and the record does not reveal whether

plaintiff's fall occurred within the confines of a park.

Evidence was introduced, however, to show that the

Burnham Park maintenance department cleans the south lot

after events occurring at Soldier Field.

Plaintiff allegedly sustained a number of injuries

as a result of her fall. Plaintiff sued the Park District

under a theory of negligence. Plaintiff alleged that the

Park District was negligent in either placing the car

stop on the walkway or in failing to remove the car stop

from the walkway. Plaintiff also alleged that the Park

District was negligent in failing to warn pedestrians of

the car stop's location and in failing to illuminate

adequately the area in which the car stop was located.

Plaintiff did not allege any willful or wanton misconduct

on the part of the Park District.

Relying on section 3--106 of the Tort Immunity Act,

the Park District filed a motion to dismiss plaintiff's

complaint under section 2--619(a)(9) of the Code of Civil

Procedure. Ill. Rev. Stat. 1989, ch. 110, par. 2--

619(a)(9). The Park District claimed in its motion that

plaintiff's use of its property was for the recreational

purpose of attending a football game. The Park District

stated that this use was intended and permitted by the

Park District. Thus, the Park District argued that

plaintiff's allegations of negligence were barred by

section 3--106.

In support of its motion to dismiss, the Park

District stated that the parking lot and walkway were

recreational property because they allowed patrons of

Soldier Field to park in close proximity to the stadium.

The Park District stated that parking in proximity to the

stadium furthers a patron's recreational activity of

attending a Chicago Bears football game. The Park

District's motion to dismiss was denied.

In its answer to plaintiff's complaint, the Park

District asserted several affirmative defenses. The Park

District again relied on section 3--106. The Park

District claimed that it was not liable for the

negligence alleged by plaintiff because plaintiff's fall

occurred on public property used for recreational

purposes.

In a further affirmative defense, the Park District

also relied on section 3--102(a) of the Tort Immunity Act

(Ill. Rev. Stat. 1989, ch. 85, par. 3--102(a)). Section

3--102(a) provides that a local public entity shall not

be liable for injury occurring on public property unless

it is proven that the local public entity has actual or

constructive notice of the injury causing condition. The

Park District stated it had neither actual nor

constructive notice of the car stop's improper placement

on the walkway. Lacking notice, the Park District alleged

that it was immune from liability.

In the alternative, the Park District relied on

section 3--102(b) of the Tort Immunity Act (Ill. Rev.

Stat. 1989, ch. 85, par. 3--102(b)). Section 3--102(b)

provides that a local public entity does not have

constructive notice of an injury causing condition

located on public property if the local public entity

operates a reasonably adequate inspection system. The

Park District alleged that its pregame traffic control

and parking lot setup routine around Soldier Field

qualified as an "inspection system" under section 3--

102(b). The Park District claimed that its inspection

system provided a defense to any finding of constructive

notice.

Following a bench trial, the judge ruled in favor of

plaintiff. In reaching this result, the judge found that

the Park District was negligent in failing to provide

reasonably safe access to Soldier Field. The judge then

addressed, and rejected, the Park District's defenses

under sections 3--106 and 3--102.

The judge found that the Park District's section 3--

106 defense did not apply. The judge stated: "As I

previously said, the Park District can't rely on Section

3--106, which grants immunity for recreational

facilities, because this parking lot that is access to

Soldier Field is not a recreational facility."

The judge also found that there was no evidence to

indicate that the Park District had actual notice of the

car stop's location on the walkway. However, the judge

did find that the Park District had constructive notice

of the car stop's location. The car stop was conspicuous

because it weighed approximately 100 pounds and took

several men or a forklift to move. Also, based on the

photographs entered into evidence, the judge stated,

"this conspicuous obstacle did exist, and it must have

been there, I found, for enough time for the Park

District to become aware of it." Because the Park

District had constructive notice of the car stop's

improper placement on the walkway, the judge found that

the Park District was not immune from liability under

section 3--102(a).

The judge further found no evidence to support the

Park District's claim that its pregame traffic control

and parking lot setup routine qualified as an inspection

system that would have led to the discovery of the

improperly positioned car stop. Thus, section 3--102(b)

did not provide a defense to the Park District's

constructive notice of the car stop's improper location

on the walkway.

The appellate court affirmed. No. 1--93--3639

(unpublished order under Supreme Court Rule 23). The

appellate court examined the Park District's section 3--

106 defense in light of Bubb v. Springfield School

District 186, 167 Ill. 2d 372 (1995). In Bubb, we

addressed whether a school district is immune from

liability for negligence under section 3--106 when a

student is injured on a sidewalk surrounding a school

when that sidewalk is used for recreation.

Relying on Bubb, the appellate court attempted to

determine whether the location of plaintiff's fall was a

recreational area under section 3--106. The court stated

that the Park District failed to present evidence

regarding the recreational character of the location of

plaintiff's fall. Lacking this evidence, the court

concluded the trial judge was correct to find that

section 3--106 did not provide immunity for the Park

District.

During its appeal to the appellate court, the Park

District, for the first time in its reply brief, asked

the appellate court to take judicial notice of the fact

that plaintiff's fall occurred within Burnham Park. The

court declined to do so. The court stated that even if it

were to take judicial notice of the location of Burnham

Park, the Park District still failed to carry its burden

of establishing a section 3--106 affirmative defense. The

court found that the Park District did not introduce any

evidence that plaintiff's fall occurred in an area

traditionally used for recreational purposes.

The appellate court also reviewed the trial judge's

two section 3--102 findings. Because the car stop was

conspicuous and improperly positioned long enough for the

Park District to become aware of it, the court concluded

that a finding of constructive notice under section 3--

102(a) was not against the manifest weight of the

evidence.

In addition, the appellate court agreed with the

trial judge that there was no evidence to demonstrate

that the Park District operated a reasonably adequate

inspection system. Thus, the trial judge's section 3--

102(b) finding was not against the manifest weight of the

evidence.

DISCUSSION

The Park District asks this court to take judicial

notice of the fact that plaintiff's fall occurred within

Burnham Park. Assuming we take judicial notice of this

fact, the Park District argues that it is automatically

entitled to immunity under section 3--106 because parks

are by definition "property intended or permitted to be

used for recreational purposes." Ill. Rev. Stat. 1989,

ch. 85, par. 3--106. For the reasons that follow, we

decline to take judicial notice of the location of

plaintiff's fall.

Prior to trial, the Park District did not claim in

its motion to dismiss or in its answer to plaintiff's

complaint that plaintiff's fall occurred within Burnham

Park. During trial, the Park District did not claim or

introduce evidence to demonstrate that plaintiff was

injured in a park. In fact, the Park District concedes in

its brief that "no evidence was presented at trial

technically fixing the situs of plaintiff's injury as a

sidewalk located in Burnham Park." Furthermore, the Park

District never asked the trial judge to take judicial

notice of the fact that plaintiff was injured in Burnham

Park.

The Park District in its reply brief in the

appellate court asked that court to take judicial notice

that plaintiff was injured in Burnham Park. The appellate

court declined to do so. The court stated that even if it

were to take judicial notice of the location of

plaintiff's fall, the Park District failed to establish

that plaintiff's fall occurred in an area traditionally

used for recreational purposes.

The Park District has waived its contention that

plaintiff was injured in a park by failing to present

evidence or seek judicial notice of this fact in the

trial court. "[I]t is axiomatic that where evidence was

not offered during the trial of a matter, it cannot be

introduced for the first time on appeal." H.J. Tobler

Trucking Co. v. Industrial Comm'n, 37 Ill. 2d 341, 344

(1967). Also, "[i]t is required that the points argued on

appeal be commensurate with the issues presented at

trial." Kravis v. Smith Marine, Inc., 60 Ill. 2d 141, 147

(1975). Moreover, the Park District's contention that

plaintiff was injured in a park was raised for the first

time in its reply brief in the appellate court. Under

Supreme Court Rule 341(e)(7), points not argued in an

appellant's brief are waived and shall not be raised in

the reply brief. 155 Ill. 2d R. 341(e)(7).

In the alternative, the Park District argues that

plaintiff's fall occurred on "property intended or

permitted to be used for recreational purposes." Ill.

Rev. Stat. 1989, ch. 85, par. 3--106. The evidence shows

that plaintiff's fall occurred on the walkway of a Park

District parking lot serving Soldier Field. The Park

District intended for and permitted football fans to park

in the lots adjacent to Soldier Field and use the

walkways to gain access to the stadium. Plaintiff

possessed a ticket to attend the football game and was

injured while walking to the game. Thus, the Park

District argues that the location of plaintiff's fall was

part of the recreational purpose of Soldier Field. We

agree.

In Bubb, we found that section 3--106 "applies if

public property is intended or permitted to be used for

recreational purposes, regardless of the primary purpose

of the property." Bubb, 167 Ill. 2d at 384 . Application

of a section 3--106 defense does not depend only on a

plaintiff's active engagement in a recreational activity

at the time of injury. See J. DeAno, Governmental

Immunities for Recreational Injuries, 82 Ill. B.J. 28 ,

28-29 (1994).

In addition, section 3--106 may apply to facilities

or structures that increase the usefulness of public

property intended or permitted to be used for

recreational purposes. These facilities or structures

need not be recreational in character for section 3--106

to apply. See S. Puiszis, Illinois Municipal Tort

Liability sec. 4--10, at 183 (1996). Although the

walkways and parking lots adjacent to Soldier Field may

not be primarily recreational, Soldier Field itself is

certainly recreational and these facilities increase its

usefulness. Taken as a whole, we find that Soldier Field

and its adjacent walkways and parking lots are intended

or permitted to be used for recreational purposes.

A review of the legislative history supports our

conclusion. Prior to 1986, local public entities were

faced with difficulties affording liability insurance. As

stated by Senator Rock, legislators were "somewhat

appalled that counties and park districts and

municipalities were confronted with the fact that they

were uninsurable or that the insurance that was offered

to them was unaffordable." 84th Ill. Gen. Assem., Senate

Proceedings, June 30, 1986, at 78 (statements of Senator

Rock).

The legislature responded to these difficulties by

enacting Public Act 84--1431 which, among other things,

amended portions of the Tort Immunity Act. In order to

decrease the costs of liability insurance, the

legislature expanded the scope of immunity provided to

local public entities under section 3--106. The

legislature accomplished this expansion of immunity by

abandoning the focus on specific types of public property

and instead focusing on the intended or permitted use of

the property.

Prior to its amendment in 1986, "section 3--106

immunity was specifically limited to parks, playgrounds,

and open areas used for recreational purposes." Bubb, 167

Ill. 2d at 378. Following its amendment, immunity was

expanded by including "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."

Pub. Act 84--1431, art. 1, sec. 2, eff. November 25, 1986

(amending Ill. Rev. Stat. 1985, ch. 85, par. 3--106).

Thus, under section 3--106 as amended, it is the

character of the property as a whole that determines

whether immunity applies. See Bubb, 167 Ill. 2d at 379,

381 (agreeing with the reasoning of courts that examine

"the nature of the property as a whole"). In this case,

an examination of the property as a whole indicates that

the parking lot in which plaintiff fell was an integral

part of the Soldier Field recreational facility. We

therefore believe that the trial judge erred in narrowly

focusing on only whether the parking lot by itself was

being used for recreational purposes.

We note that our conclusion is consistent with the

Seventh Circuit's decision in Diamond v. Springfield

Metropolitan Exposition Auditorium Authority, 44 F.3d 599

(7th Cir. 1995). In Diamond, the plaintiff was on her way

to a career related conference when she was injured in

the doorway of an underground tunnel leading to a

facility used for conventions, shows, and sporting

events.

The court stated that section 3--106 immunity

depends on "the character of the property as a whole,

rather than whether the injured person was engaged in a

nonrecreational activity." Diamond, 44 F.3d at 604 .

Because both participants in and spectators of sporting

events are engaged in recreation (see Diamond, 44 F.3d at

603), the court found that the facility was permitted to

be used for recreational purposes (see Diamond, 44 F.3d

at 604-05). Accordingly, the court concluded that

plaintiff's negligence action was barred by section 3--

106.

Our appellate court has reached similar results. In

Annen v. Village of McNabb, 192 Ill. App. 3d 711 (1990),

plaintiff was injured in a restroom located in a park.

Under section 3--106, the appellate court affirmed the

dismissal of plaintiff's negligence claim. The court

stated that "[w]hile a restroom building itself is not

intended to be used for recreational purposes, it allows

a park user to continue using the park ***. This

increases the usefulness of the park and advances the

legislative purpose." Annen, 192 Ill. App. 3d at 713 .

In Lewis v. Jasper County Community Unit School

District No. 1, 258 Ill. App. 3d 419 (1994), plaintiff

was injured by falling against a pumphouse located on a

school playground. Relying on section 3--106, the

appellate court affirmed the dismissal of plaintiff's

negligence claims. The court stated that the "immunity

provisions of section 3--106 have been held to apply to

nonrecreational equipment and structures located on

premises used for recreational activities." Lewis, 258

Ill. App. 3d at 423.

Similar results may be found in additional cases.

See, e.g., Conoway v. Hanover Park Park District, 277

Ill. App. 3d 896 (1996) (plaintiff was barred from

recovery when injured by falling into a drainage ditch in

a park); Hanover Insurance Co. v. Board of Education of

the City of Chicago, 240 Ill. App. 3d 173 (1992) (worker

was barred from recovery when injured by slipping on

cracked concrete in a school playground while performing

masonry repairs); Kirnbauer v. Cook County Forest

Preserve District, 215 Ill. App. 3d 1013 (1991)

(plaintiff was barred from recovery when injured by a

cable barricade restricting entry to a forest preserve

access road).

Because we find that the Park District is not liable

in actions for negligence in the circumstances presented

here, we do not address the Park District's additional

immunity arguments regarding constructive notice under

section 3--102 nor do we address the Park District's

argument that parks are automatically entitled to

immunity under section 3--106.

We must still dispose of plaintiff's pending motion

seeking leave to file a first amended complaint under

Supreme Court Rule 362. 155 Ill. 2d R. 362. The purpose

of Rule 362 is to amend the pleadings to conform to the

evidence presented at trial. A movant "must show the

amendment to be necessary, that no prejudice will result

to the adverse party if the amendment sought is

permitted, and that the issues sought to be raised by the

amendment are supported by the facts in the record on

appeal." 155 Ill. R. 362(b). "Rule 362 is not a vehicle

to raise wholly new issues on appeal." Local 165 v.

Bradley, 149 Ill. App. 3d 193, 213 (1986).

In plaintiff's motion, she seeks leave to add a

second count to her complaint alleging that the Park

District engaged in willful and wanton misconduct. The

trial had proceeded only on a theory of negligence. In

fact, plaintiff's attorney stated to the trial court:

"First of all, I would just like to state again for the

record this case is based upon [a] theory of negligence,

and it is not incumbent upon my client in this action to

prove any willful and wanton conduct on the part of the

Park District."

In Griffin v. Darda, 28 Ill. App. 3d 693 (1975),

plaintiff was a passenger in an automobile that collided

with another vehicle. Plaintiff filed suit against the

driver of the automobile in which she was riding.

Plaintiff alleged the driver was guilty of willful and

wanton misconduct. Following a bench trial, judgment was

entered in the driver's favor. On appeal, plaintiff

sought to amend her complaint to add a count alleging

negligence against the driver. After citing Rule 362, the

appellate court stated that the trial below had:

"proceeded on the theory that when

[plaintiff] was injured, [the driver] was

guilty of willful and wanton misconduct.

Witnesses were called, cross-examination was

conducted, and evidence was presented in

accordance with this theory. There is no fact

in the record to support the notion that

negligence was a theory of the case." Griffin,

28 Ill. App. 3d at 696-97 .

The appellate court denied plaintiff's motion seeking

leave to file an amended complaint.

In this case, plaintiff proceeded on a theory of

negligence and specifically stressed that point in the

trial court. There are no facts in the record which

indicate that a theory of willful and wanton misconduct

on the part of the Park District was a theory at trial.

Like the Park District's request that we take judicial

notice of the parking lot's location within Burnham Park

to which the plaintiff objected, plaintiff's attempt to

amend her complaint comes too late. Plaintiff's motion

seeking leave to file a first amended complaint is

denied.

CONCLUSION

For the foregoing reasons, we find that the Park

District is entitled to immunity under section 3--106 of

the Tort Immunity Act. Accordingly, we reverse the

judgments of the appellate and trial courts. In addition,

we deny plaintiff's motion seeking leave to file a first

amended complaint.

Judgments reversed.

CHIEF JUSTICE FREEMAN, specially concurring:

My colleagues hold that plaintiff's fall occurred on

"property intended or permitted to be used for

recreational purposes" as provided in section 3--106 of

the Local Governmental and Governmental Employees Tort

Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1989,

ch. 85, par. 3--106). Therefore, they find that the Park

District is not liable for injuries which the plaintiff

sustained. I concur with the majority's conclusion that

the property on which plaintiff fell is intended or

permitted to be used for recreational purposes. However,

I believe that the majority's application of the

increased usefulness test will provide broader immunity

than the legislature intended.

Specifically, the majority asserts that the Park

District intended for and permitted football fans to park

in the lots adjacent to Soldier Field and use the

walkways to gain access to the stadium. Because plaintiff

possessed a ticket to attend the football game and was

injured while walking to the game, the majority concludes

that the location of plaintiff's fall was part of the

recreational purpose of Soldier Field.

The majority bases its reasoning on appellate court

cases which have held that, taken as a whole, a facility

or structure will be considered to fall within the scope

of section 3--106 if it increases the usefulness of

public property intended or permitted to be used for

recreational purposes. See Conoway v. Hanover Park Park

District, 277 Ill. App. 3d 896, 900 (1996); Kirnbauer v.

Cook County Forest Preserve District, 215 Ill. App. 3d

1013, 1022-23 (1991). This test was first espoused in

Annen v. Village of McNabb, 192 Ill. App. 3d 711 (1990).

In Annen, the plaintiff was using a restroom located

within a park when a sink fell from a wall, seriously

injuring her. The court found that the purpose of section

3--106 manifested an intent to include restroom

facilities within a park as part of the park itself. The

court stated:

"A restroom facility located within a

park is a part of the park. While a restroom

building itself is not intended to be used for

recreational purposes, it allows a park user

to continue using the park without having to

leave the park to use restroom facilities.

This increases the usefulness of the park and

advances the legislative purpose." Annen, 192

Ill. App. 3d at 713.

The majority in the instant case adopts the reasoning in

Annen and concludes that, "[a]lthough the walkways and

parking lots adjacent to Soldier Field may not be

primarily recreational, Soldier Field itself is certainly

recreational and these facilities increase its

usefulness." Slip op. at 7.

Although the increased usefulness test provides a

fairly straightforward means to determine whether certain

property is subject to section 3--106 immunity, I do not

believe that the test should be so mechanically applied

such that any consideration of the injured party's use of

the property is ignored. In fact, we considered limiting

the scope of the "increased usefulness" test in Bubb,

where we stated:

"Providing immunity to any public property

where recreation might occur would eviscerate

the duty codified in section 3--102. *** [A]t

some point, the use of public property for

recreation may be so incidental that section

3--106 does not apply." Bubb v. Springfield

School District 186, 167 Ill. 2d 372, 382

(1995).

I believe that this case is one in which plaintiff's

use of the property was so incidental that section 3--106

should not apply. The record reveals that the plaintiff

parked her car in the McCormick Place parking lot,

approximately one mile from Soldier Field. However, the

injury occurred as she was crossing the south parking

lot, which is located across the street from Soldier

Field. The parking lot where plaintiff was injured does

increase the usefulness of Soldier Field; the lot

provides convenient parking for the public. However,

plaintiff's actual use of the property was incidental, as

she was merely walking across the lot to reach Soldier

Field. It is only happenstance that the lot is available

to increase the use of Soldier Field. Plaintiff's

presence on the lot had nothing to do with the lot's

availability for parking. Plaintiff merely chose the lot

as the path by which she could access Soldier Field. Had

plaintiff chosen a different path to access Soldier

Field, that property, simply because it provided

convenient access, would not merit section 3--106

immunity.

I do not believe that the legislature intended to

expand the scope of section 3--106 to provide immunity to

governmental units for use that is merely incidental to

the purpose of the property. For all practical purposes,

unless the increased usefulness test is limited in its

application and scope, the duty of a governmental unit to

exercise even ordinary care will be diminished.

JUSTICE HARRISON, dissenting:

I agree with Justice Freeman's conclusion that

section 3--106 should not apply to this case. In my

view, however, this conclusion must yield a different

result. Because the Park District is not entitled to

immunity under section 3--106, there is no basis for

disturbing the judgments of the circuit and appellate

courts, and those judgments should be affirmed.

Accordingly, I dissent.

JUSTICE NICKELS, also dissenting:

Plaintiff was injured when she fell upon a walkway

which is adjacent to a Soldier Field parking lot. The

majority finds the Park District immune from liability

for plaintiff's injuries under section 3--106 of the

Local Governmental and Governmental Employees Tort

Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1989,

ch. 85, par. 3--106), because plaintiff's fall occurred

on property intended or permitted to be used for

recreational purposes. Because I cannot concur with the

majority's conclusion in this case, I respectfully

dissent.

The legislature codified the general duty of a local

public entity to use ordinary care to maintain public

property in section 3--102 of the Tort Immunity Act (Ill.

Rev. Stat. 1989, ch. 85, par. 3--102). However, section

3--106, on which the majority relies, provides a public

entity with an affirmative defense, which, if properly

raised and proven, bars a plaintiff's right to recovery.

Bubb v. Springfield School District 186, 167 Ill. 2d 372,

378 (1995). Section 3--106 provides in pertinent part

that a local public entity shall not be 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. Ill. Rev. Stat.

1989, ch. 85, par. 3--106. Whether public property is

intended or permitted to be used for a recreational

purpose within the meaning of section 3--106 requires a

case-by-case examination of the nature of the property

involved. Bubb, 167 Ill. 2d at 384 .

The majority agrees with the Park District's

contentions that the parking lots and walkways adjacent

to Soldier Field were intended to be used by football

fans on their way to games at the stadium. They agree

that, because plaintiff possessed a ticket to a football

game and was injured while walking to the game, the

walkway where plaintiff fell was part of the recreational

purpose of Soldier Field.

In coming to this conclusion, the majority relies on

appellate court cases which hold that section 3--106

immunity may apply to a facility or structure that

increases the usefulness of public property intended or

permitted to be used for recreational purposes. I believe

the majority's holding is an unwarranted expansion of

immunity to public entities which far exceeds the

legislature's intent.

First, the appellate court cases on which the

majority relies are readily distinguishable. Unlike the

instant case, the plaintiffs in all those cases were

barred from recovery under the Tort Immunity Act because

their injuries occurred while they were actually within

a recreational facility. See Bubb, 167 Ill. 2d at 382

(plaintiff injured on school property designated as part

of the playground); Conoway v. Hanover Park Park

District, 277 Ill. App. 3d 896, 900 (1996) (plaintiff

injured in drainage ditch in a park); Lewis v. Jasper

County Community Unit School District No. 1, 258 Ill.

App. 3d 419, 420 (1994) (plaintiff injured on a pumphouse

inside a playground); Hanover Insurance Co. v. Board of

Education, 240 Ill. App. 3d 173, 174 (1992) (plaintiff

injured on cracked concrete of a playground); Annen v.

Village of McNabb, 192 Ill. App. 3d 711, 713 (1990)

(plaintiff injured in restroom within a park); Diamond v.

Springfield Metropolitan Exposition Auditorium Authority,

44 F.3d 599 (7th Cir. 1995) (plaintiff injured in tunnel

that was part of a convention center).

Furthermore, in Bubb and Diamond, neither court was

concerned with whether the site of the plaintiff's injury

increased the usefulness of the recreational property. In

Bubb, at issue was whether the sidewalk where plaintiff

was injured was intended and permitted to be used as part

of the playground and, therefore, was within the scope of

section 3--106. See Bubb, 167 Ill. 2d at 382-83 . In

Diamond, the issue before the court was whether the

convention center where plaintiff was injured could be

considered recreational property because it sponsored

recreational as well as nonrecreational events. See

Diamond, 44 F.3d at 604 .

Moreover, that plaintiff in the instant case was

injured while walking to the stadium to attend a football

game should not influence the determination of whether

the locale of her injury was recreational property.

Immunity under section 3--106 "depends on the character

of the property in question, not the activity performed

at any given time." Bubb, 167 Ill. 2d at 379 ; see also

Larson v. City of Chicago, 142 Ill. App. 3d 81, 87 (1986)

(immunity did not apply to a roller skating injury on a

public sidewalk because a public sidewalk is not

recreational property like a park or playground); John v.

City of Macomb, 232 Ill. App. 3d 877, 880 (1992)

(immunity did not apply to an injury suffered at a band

concert on a courthouse lawn because permitting that

recreational activity did "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").

The 1986 amendment to the Tort Immunity Act

evidences the legislature's intent to expand the scope of

section 3--106 to include within its coverage any

recreational property similar in nature to the types of

properties listed in the statute. Bubb, 167 Ill. 2d at

378, citing Bonfield v. Jordan, 202 Ill. App. 3d 638, 645

(1990). However, unlike the majority, I do not believe

that the legislature intended to provide immunity for all

property that surrounds a recreational facility and

which, incidentally, accommodates the public's use of the

recreational facility.

As noted earlier, local public entities have a

general statutory duty to exercise ordinary care to

maintain public property. See Ill. Rev. Stat. 1989, ch.

85, par. 3--102. This court, when construing a

legislative act, should consider each section in

connection with other sections. Castaneda v. Illinois

Human Rights Comm'n, 132 Ill. 2d 304, 318 (1989).

Although section 3--106 of the Tort Immunity Act provides

immunity for recreational property, providing immunity to

any public property which somehow accommodates or make

more convenient the use of other public recreational

property would totally eviscerate the duty codified in

section 3--102. Cf. Bubb, 167 Ill. 2d at 382 .

I believe that the use of a walkway adjacent to a

Soldier Field parking lot is a mere convenience and is so

incidental that it simply cannot be considered property

intended or permitted to be used for recreational

purposes. For the foregoing reasons, I would affirm the

judgment of the appellate court.

JUSTICE HARRISON joins in this dissent.