Donath v. Village of Plainfield

2020 IL App (3d) 190762

Opinion filed October 6, 2020

____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2020

STACY DONATH, ) Appeal from the Circuit Court

) of the 12th Judicial Circuit,

Plaintiff-Appellant, ) Will County, Illinois.

)

v. ) Appeal No. 3-19-0762

) Circuit No. 17-L-579

)

THE VILLAGE OF PLAINFIELD, ) Honorable

) Raymond E. Rossi,

Defendant-Appellee. ) Judge, Presiding.

____________________________________________________________________________

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 pennitted [Fox River Sti·eet] to become and

remain in a dangerous condition." Specifically, Donath alleged that she tripped and fell on July

16, 2016, because Fox River Sti·eet was "broken, cracked and in disrepair"; Fox River Sti·eet's

sewer grate was "in disrepair, sunken and unsafe"; and the Village failed to repair, baiTicade, or

inspect and warn Donath of the dangerous conditions on Fox River Street.

The Village filed an answer to Donath's complaint without raising any affinnative

defenses. Discove1y later revealed that Donath tripped and fell on Fox River Street while leaving

an evening conceit at Plainfield Fest, which is a weekend sti·eet festival held in the downtown ai·ea

of the Village. Plainfield Fest includes a bandstand, beer tents, cainival rides, and food and craft

vendors on closed public streets and ce1iain private prope1iy. As the Village's lai·gest annual

cormnunity event with a 20-plus year histo1y, Plainfield Fest atti·acts thousands of daily attendees

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

NOi Plcuecl Tho o.ignlled Pll1dnoflrt. . • l'llll'l'illd Cenlrat'HiOft School

Map of the 2016 Plainfield Fest from the Trial Comi Record

The paiiial closure of Fox River Sti·eet during Plainfield Fest was announced by the Village

through a press release. The Village paiiially closed Fox River Sti·eet with baITicades and a police

checkpoint. The Village prohibited vehiculai· ti·affic on Fox River Street by eve1yone except its

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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 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.

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¶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

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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 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

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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).

6

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 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

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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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 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”

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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 509-510.

9

¶ 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 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).

10

¶ 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 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

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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 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

12

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

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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.

¶ 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

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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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No. 3-19-0762

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

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

the Hon. Raymond E. Rossi, Judge, presiding.

Attorneys Steven A. Berman, of Anesi, Ozmon, Rodin, Novak & Kohen,

for Ltd., of Chicago, for appellant.

Appellant:

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

for Wilson, of Joliet, for appellee.

Appellee:

16