Sylvester v. Chicago Park District

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 makes 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.