The opinion
2017 IL 121800
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 121800)
ISAAC COHEN, Appellee, v. THE CHICAGO PARK DISTRICT, Appellant.
Opinion filed December 29, 2017.
JUSTICE BURKE delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Freeman, Thomas, Garman, and Theis
concurred in the judgment and opinion.
Justice Kilbride dissented, with opinion.
OPINION
¶1 The plaintiff, Isaac Cohen, was riding his bicycle on the Lakefront Trail, a
shared-use path that runs along the shore of Lake Michigan in Chicago, when his
front wheel got caught in a crack in the pavement and he fell. Plaintiff filed a
one-count complaint against the defendant, the Chicago park district, alleging it
had acted willfully and wantonly in failing to maintain the path and was therefore
responsible for the injuries that resulted from his fall.
¶2 The circuit court of Cook County granted defendant’s motion for summary
judgment, concluding that defendant was immune from suit under section 3-107(a)
of the Local Governmental and Governmental Employees Tort Immunity Act (Act)
(745 ILCS 10/3-107(a) (West 2012)). That provision grants absolute immunity to
local public entities for injuries caused by a condition of a “road which provides
access to fishing, hunting, or primitive camping, recreational, or scenic areas.” Id.
The circuit court also concluded, in the alternative, that even if section 3-107(a) did
not apply to the Lakefront Trail, defendant was immune from suit under section
3-106 of the Act (745 ILCS 10/3-106 (West 2012)). That provision immunizes
local public entities for injuries occurring on recreational property, except when the
local public entity engages in willful and wanton conduct proximately causing the
injuries.
¶3 On appeal, the appellate court rejected both the conclusions reached by the
circuit court and reversed the entry of summary judgment in favor of defendant.
2016 IL App (1st) 152889. We granted defendant’s petition for leave to appeal. Ill.
S. Ct. R. 315 (eff. Mar. 15, 2016).
¶4 Like the appellate court, we agree that section 3-107(a) of the Act is
inapplicable in this case, although we reach this result for different reasons.
However, we agree with the circuit court that defendant is immune from suit under
section 3-106. Accordingly, we reverse the judgment of the appellate court and
affirm the judgment of the circuit court.
¶5 Background
¶6 The following facts are taken from the pleadings, depositions, and other
materials before the circuit court. On the morning of July 7, 2013, plaintiff was
riding his bicycle in the right lane of the Lakefront Trail in Chicago, Illinois,
heading south near the Shedd Aquarium. As he rode, he approached from behind a
pedestrian who was walking in the same lane. Plaintiff slowed down, rang his
bicycle bell, and began to pass on the pedestrian’s left.
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¶7 To pass the pedestrian, plaintiff moved his bicycle to the middle of the path. As
he did so, the front tire of his bicycle became caught in a crack in the concrete. The
crack was about three to four inches wide at its widest, was two to three inches
deep, and ran in the direction of travel along the path for about three or four feet.
After his wheel became caught, plaintiff fell to the ground and sustained injuries to
his shoulder. He then got back on his bicycle and rode home.
¶8 Plaintiff did not notify defendant of his accident at the time it happened. The
following week, plaintiff rode his bicycle along the same stretch of the path and
noticed that the crack had been repaired.
¶9 The Lakefront Trail is what is known as a shared-use path (see Corbett v.
County of Lake, 2017 IL 121536, ¶ 21), used by bicyclists, pedestrians, joggers and
others. The path is either concrete or asphalt and runs for approximately 18.5l miles
along the shore of Lake Michigan in Chicago. The path is in a developed area and is
surrounded by numerous commercial and public attractions such as beaches,
softball fields, museums, and harbors. Although emergency vehicles such as
ambulances may use the path when necessary, public, motorized traffic is not
permitted on the path.
¶ 10 Defendant owns and maintains the Lakefront Trail. Every spring the path is
inspected in order to identify any defects in need of repair. After the annual
inspection is completed, a list of repairs is compiled, and requests for bids to
perform the repair work are sent to contractors under a “rapid response”
procurement program. This program is an expedited procurement process for
defendant, through which most repairs for the Lakefront Trail are conducted.
¶ 11 As early as May 2013, an employee of defendant, Robert Arlow, received a call
from a user of the Lakefront Trail informing him about the crack at issue in this
case. Arlow inspected the crack and concluded it needed to be repaired. However,
Arlow did not take steps to immediately perform the repair through the use of
in-house employees. He also did not barricade the path or otherwise mark the crack
in the pavement with spray paint or similar material.
¶ 12 On June 10, 2013, defendant sent out its annual request for repair bids under the
rapid response program. The crack was included in the scope of work for which
bids were sought. On June 12, 2013, a repair contractor submitted a proposal to
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defendant for repairs to the path. On June 19, 2013, defendant told the contractor to
proceed with the work. On July 10, 2013, the crack in the pavement was repaired.
¶ 13 Defendant moved for summary judgment alleging, in part, that it was afforded
immunity from plaintiff’s suit under sections 3-107(a) and 3-106 of the Act. The
circuit court agreed and granted defendant’s motion.
¶ 14 Plaintiff appealed, and the appellate court reversed. 2016 IL App (1st) 152889.
The appellate court held that section 3-107(a) “was intended only to apply to roads
providing access to primitive, undeveloped recreational areas” (id. ¶ 40) and, thus,
did not apply to the Lakefront Trail. The court also held that summary judgment for
defendant was inappropriate under section 3-106 because it could not be said that
defendant’s conduct was not willful and wanton as a matter of law.
¶ 15 We granted defendant’s petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff.
Mar. 15, 2016). We also allowed the Illinois Trial Lawyers Association to file an
amicus curiae brief in support of plaintiff. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).
¶ 16 Analysis
¶ 17 At issue in this appeal is the circuit court’s order granting summary judgment in
favor of defendant. Summary judgment is proper when the pleadings, depositions,
affidavits, and other matters on file establish that there is no genuine issue of
material fact and that the moving party is entitled to judgment as a matter of law.
735 ILCS 5/2-1005(c) (West 2012). We review the circuit court’s grant of
summary judgment de novo. Bremer v. City of Rockford, 2016 IL 119889, ¶ 20. We
also review issues of statutory interpretation, which are questions of law, de novo.
Moon v. Rhode, 2016 IL 119572, ¶ 22.
¶ 18 Section 3-107(a)
¶ 19 The appellate court rejected the circuit court’s conclusion that defendant is
entitled to blanket immunity under section 3-107(a) of the Act. That provision
states:
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“Neither a local public entity nor a public employee is liable for an injury
caused by a condition of: (a) Any road which provides access to fishing,
hunting, or primitive camping, recreational, or scenic areas and which is not a
(1) city, town or village street, (2) county, state or federal highway or (3) a
township or other road district highway.” 745 ILCS 10/3-107(a) (West 2012)).
¶ 20 Much of the appellate court’s analysis centered on the word “primitive” and
whether that word modified each of the words that follow it. Ultimately, the
appellate court concluded that it did and held that section 3-107(a) “applies only to
access roads to primitive recreational and scenic areas and does not apply to the
Lakefront Trail.” 2016 IL App (1st) 152889, ¶ 43. In other words, the appellate
court held that, even if the Lakefront Trail is considered an access road, it does not
provide access to a “primitive” recreational or scenic area and, therefore, the
blanket immunity of section 3-107(a) does not apply. Although we agree with the
appellate court that section 3-107(a) is inapplicable in this case, we believe the
court’s focus on which words are modified by the term “primitive” was
unnecessary.
¶ 21 Section 3-107(a) provides blanket immunity for certain roads. The statute does
not, itself, define the word “road.” However, other statutory provisions do. The
Illinois Highway Code (605 ILCS 5/2-101 et seq. (West 2012)), for example, sets
out a comprehensive list of definitions for terms such as “road,” “street,” and
“highway.” Under the Highway Code, roads and streets are types of
highways—highway being the generic term for “any public way for vehicular
travel which has been laid out in pursuance of any law of this State.” 605 ILCS
5/2-202 (West 2012); see also 625 ILCS 5/1-126, 1-179, 1-201 (West 2012)
(setting out similar definitions under the Illinois Vehicle Code). Vehicles, in turn,
include motorized vehicles such as motorcycles, cars, and trucks. 625 ILCS
5/1-217 (West 2012). 1 Thus, generally speaking, under the Highway Code, a
“road” is a public way that permits travel by devices such as motorcycles, cars, and
trucks.
1
Under Illinois law, a bicycle is not considered a vehicle (625 ILCS 5/1-217 (West 2012)), but
bicycle riders are given all the rights and are subject to all the duties applicable to the driver of a
vehicle (625 ILCS 5/11-1502 (West 2012)).
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¶ 22 Care must be taken when importing the definition of a term from one statute to
another, since “the context in which a term is used obviously bears upon its
intended meaning.” People ex rel. Illinois Department of Labor v. E.R.H.
Enterprises, Inc., 2013 IL 115106, ¶ 29. However, in this case, we believe it
appropriate to do so. Section 3-107(a), which was enacted several years after the
Highway Code, uses the same terminology found in the latter statute. Section
3-107(a) states, for example, that the blanket tort immunity for access roads does
not apply to “a township or other road district highway.” This terminology mirrors
the language found in the definitional provisions of the Highway Code (see 605
ILCS 5/2-205, 2-206 (West 2012)) and suggests that the legislature intended for the
Highway Code definitions to apply. Moreover, we can discern no reason, either
from the context of the statutes or other sources, why the definition of the term
“road” found in the Highway Code should not also apply in section 3-107(a). Thus,
we conclude that a “road” under section 3-107(a) is a public way that permits travel
by motorized vehicles such as motorcycles, cars, and trucks.
¶ 23 In this case, there is no dispute that the Lakefront Trail is not open to public,
motorized traffic. Accordingly, the Lakefront Trail is not a “road” within the
meaning of section 3-107(a). For this reason, defendant is not afforded blanket
immunity for conditions of the Lakefront Trail under section 3-107(a).
¶ 24 Section 3-106
¶ 25 Defendant contends, in the alternative, that if it is not immune from plaintiff’s
suit under section 3-107(a) of the Act, it is immune under section 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.” 745 ILCS
10/3-106 (West 2012).
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¶ 26 There is no dispute that the Lakefront Trail is recreational property within the
meaning of section 3-106. Defendant maintains, however, that its conduct in
repairing the crack cannot, as a matter of law, be deemed willful and wanton.
Therefore, defendant contends, it is entitled to summary judgment on this ground.
¶ 27 Section 1-210 of the Act defines willful and wanton conduct as “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.” 745 ILCS 10/1-210 (West 2010). Generally, whether a
defendant’s conduct is willful and wanton is a question for the jury. Murray v.
Chicago Youth Center, 224 Ill. 2d 213, 245 (2007). However, where, as here,
discovery has been completed and “what is contained in the pleadings and
affidavits would have constituted all of the evidence before the court and upon such
evidence there would be nothing left to go to a jury, and the court would be required
to direct a verdict, then a summary judgment should be entered.” Fooden v. Board
of Governors of State Colleges & Universities, 48 Ill. 2d 580, 587 (1971).
¶ 28 The parties point to two cases, Lester v. Chicago Park District, 159 Ill. App. 3d
1054 (1987), and Palmer v. Chicago Park District, 277 Ill. App. 3d 282 (1995), to
illustrate the nature of willful and wanton conduct in the context of park district
action. In Lester, the plaintiff alleged that he was injured when the Chicago park
district “ ‘insufficiently and without proper materials’ ” filled in ruts and holes in a
softball field. Lester, 159 Ill. App. 3d at 1056. The appellate court affirmed the
dismissal of the plaintiff’s complaint, concluding as a matter of law that nothing in
the plaintiff’s allegations could amount to “ ‘utter indifference’ or ‘conscious
disregard’ ” for the safety of park patrons. Id. at 1059. The court held that to equate
the defendant’s “actions in discovering the condition complained of and taking
affirmative rehabilitative acts after such discovery in an attempt to remedy the
problem with willful and wanton conduct would render that standard synonymous
with ordinary negligence.” Id.
¶ 29 In Palmer, the plaintiff alleged that he fractured his leg while trying to stop his
daughter from running into the street when his foot caught in the loop of a metal
fence that had fallen down at a Chicago park district play lot. Palmer, 277 Ill. App.
3d at 284-85. The plaintiff alleged that the wire fence, which was 30 feet long and 3
feet high, had been lying along the edge of the play lot for three months. Id. at 284.
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Plaintiff further alleged that the defendant knew or should have known about the
fence yet took no corrective action. Id. at 285. The appellate court reversed the
circuit court’s dismissal of the plaintiff’s complaint. In so holding, the appellate
court stressed the obvious and extraordinary danger posed by a 30-foot-long, fallen
metal fence and concluded that plaintiff had stated a cause of action for willful and
wanton misconduct where he alleged the defendant took “no corrective action”
whatsoever to repair the fence or to warn patrons about it. Id. at 288-89.
¶ 30 The parties before us disagree as to whether this case is more like Lester or
Palmer. We think it is the former.
¶ 31 Cracks and potholes in paved surfaces are an unfortunate but unavoidable
reality, particularly in climates such as Chicago’s. The risk of injury from the crack
at issue in this case, while real, was therefore nothing like the extraordinary and
unusual risk posed by the 30-foot metal fence in Palmer. See, e.g., In re Estate of
Stewart, 2016 IL App (2d) 151117, ¶ 105 (noting that the “nature of the danger”
must be taken into consideration when evaluating whether a defendant’s conduct is
willful and wanton). Moreover, there were no prior injuries involving the crack,
which would have alerted defendant to any extraordinary risk or danger to the users
of the path.
¶ 32 Further, unlike Palmer, it is undisputed that defendant in this case took
corrective action. When defendant’s employee Arlow was notified of the crack in
the pavement, he inspected it and placed it on the repair list for defendant’s rapid
response program. In addition, there is no indication or allegation of unusual delay
or foot-dragging on the part of defendant. Indeed, the defendant’s request to
contractors for bid proposals, the bidding process, and the repair of the crack were
all completed within 30 days.
¶ 33 Plaintiff emphasizes that defendant could have done more. Plaintiff points out
that, once notified of the crack in the pavement, defendant could have immediately
barricaded the path or performed a temporary repair using in-house employees,
rather than waiting for an outside contractor. While this may be true, we think it
clear that to equate defendant’s actions in this case “with willful and wanton
conduct would render that standard synonymous with ordinary negligence.” Lester,
159 Ill. App. 3d at 1059.
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¶ 34 On this record, we conclude that defendant was entitled to summary judgment
on the question of willful and wanton conduct. Accordingly, we reverse the
judgment of the appellate court and affirm the circuit court’s entry of summary
judgment in defendant’s favor.
¶ 35 Conclusion
¶ 36 For the foregoing reasons, the judgment of the appellate court is reversed, and
the judgment of the circuit court is affirmed.
¶ 37 Appellate court judgment reversed.
¶ 38 Circuit court judgment affirmed.
¶ 39 JUSTICE KILBRIDE, dissenting:
¶ 40 I respectfully dissent from the majority’s decision to reverse the appellate
court’s judgment and affirm the judgment of the circuit court. I agree with the
majority that section 3-107(a) of the Local Governmental and Governmental
Employees Tort Immunity Act (Act) (745 ILCS 10/3-107(a) (West 2012)) does not
afford the defendant park district absolute immunity. I disagree, however, with the
majority’s determination that the defendant park district was entitled to summary
judgment on the issue of whether its actions were willful and wanton under section
3-106 of the Act (745 ILCS 10/3-106 (West 2012)). I believe this issue of fact
should be left to the jury. Accordingly, I would affirm the appellate court’s
judgment reversing the circuit court’s entry of summary judgment in favor of the
defendant park district.
¶ 41 Summary judgment is proper when “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 2012). “Summary judgment is a drastic measure
and should only be granted if the movant’s right to judgment is clear and free from
doubt.” Seymour v. Collins, 2015 IL 118432, ¶ 42. Summary judgment should be
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denied if a reasonable person could draw divergent inferences from undisputed
facts. Pielet v. Pielet, 2012 IL 112064, ¶ 53. On a motion for summary judgment,
the record must be construed strictly against the movant and liberally in favor of the
nonmoving party. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). Summary
judgment, therefore, is inappropriate when (1) there is a dispute as to a material
fact, (2) persons could draw divergent inferences from undisputed facts, or
(3) reasonable persons could differ on the weight to be given the relevant factors of
a legal standard. Seymour, 2015 IL 118432, ¶ 42.
¶ 42 The Act defines “willful and wanton conduct” as “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.” 745 ILCS 10/1-210 (West 2012). As the majority opinion correctly
states, “[g]enerally, whether a defendant’s conduct is willful and wanton is a
question for the jury.” Supra ¶ 27. Indeed, this court has long held that whether a
plaintiff’s injury was caused by a defendant’s willful and wanton conduct is a
question of fact to be determined by the jury. See Doe-3 v. McLean County Unit
District No. 5 Board of Directors, 2012 IL 112479, ¶ 45; Murray v. Chicago Youth
Center, 224 Ill. 2d 213, 245 (2007); Cirrincione v. Johnson, 184 Ill. 2d 109, 116
(1998); Calloway v. Kinkelaar, 168 Ill. 2d 312, 326 (1995); Doe v. Calumet City,
161 Ill. 2d 374 (1994); Smith v. Hill, 12 Ill. 2d 588, 595 (1958); Schneiderman v.
Interstate Transit Lines, 394 Ill. 569, 583 (1946); Bernier v. Illinois Central R.R.
Co., 296 Ill. 464, 470 (1921); Illinois Central R.R. Co. v. Leiner, 202 Ill. 624, 629
(1903). Applying these principles to the summary judgment pleadings in this case
establishes that a triable issue of material fact exists on whether the defendant park
district’s actions were willful and wanton.
¶ 43 Contrary to the majority opinion’s findings, and as the appellate court correctly
noted, the parties dispute the exact date the defendant park district learned of the
crack but agree that it was no earlier than May 2013. 2016 IL App (1st) 152889,
¶ 54. The park district did not take action to repair the crack until July 10, 2013, or
until approximately two months after learning of the crack. The appellate court
noted that the evidence showed the defect was repaired through the rapid response
program, used only for jobs that do not present safety concerns, when, in fact, the
defect in this case was classified as an “emergency.” 2016 IL App (1st) 152889,
¶ 55. The evidence further showed that the defendant park district had methods to
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expedite the repair process. Even though the defect was the sole 2013 Lakefront
Trail repair to be classified as an “emergency,” the defendant park district did not
make any effort to barricade, mark, or otherwise warn patrons of the defect.
¶ 44 In light of this evidence, I would hold that the appellate court properly
concluded it was inappropriate for the trial court to hold, as a matter of law, that the
defendant park district’s actions were not willful and wanton. The appellate court
correctly determined that whether the defendant park district’s actions amounted to
willful and wanton conduct is a question of fact for the jury to consider. I would
therefore affirm the appellate court judgment, reverse the trial court judgment, and
remand the cause for further proceedings.
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