Baggio v. Chicago Park District

                                SECOND DIVISION
                                June 30, 1997





No. 1-95-3388

CINDY BAGGIO,                        )    Appeal from the
                                )    Circuit Court of
       Plaintiff-Appellant,     )    Cook County.
                                )
  v.                            )
                                )
CHICAGO PARK DISTRICT,               )    Honorable
                                     )    Patrick E. McGann,
       Defendant-Appellee.      )    Judge Presiding.

  JUSTICE McNULTY delivered the opinion of the court.

  Plaintiff Cindy Baggio brought suit against defendant, the
Chicago Park District (the Park District), and her husband, Michael
Baggio, to recover damages for injuries she sustained on a stardock
located in Diversey Harbor.  This appeal concerns only plaintiff's
claims against the Park District.  Plaintiff claimed in count I of
her complaint that the Park District negligently constructed and
maintained the stardock and in count II that the Park District
willfully and wantonly constructed and maintained the stardock. 
The trial court granted summary judgment in favor of the Park
District on count I of plaintiff s complaint.  Plaintiff appeals
and we affirm.      
  Plaintiff claimed in her complaint that on July 3, 1990, she
was assisting her husband as he attempted to back his powerboat out
of his mooring on stardock X at Diversey Harbor.  Plaintiff placed
her hand and arm between the stardock and the edge of the boat,
resulting in injury to her hand and arm.  
  Plaintiff claimed that the Park District was negligent in
failing to equip the stardock with uprights or cushions, which
would have assisted in boat handling and would have eliminated the
need to place hands, or other body parts, between the docks and
heavy vessels.  Plaintiff asserted that section 3-106 of the Local
Governmental and Governmental Employees Tort Immunity Act (Tort
Immunity Act) (745 ILCS 10/3-106 (West 1992)) did not apply to her
negligence claim because the Park District, in charging a user fee
for the harbor, was not exercising governmental power but, rather
was exercising its proprietary power.
  The Park District filed a motion for summary judgment arguing
that it had no duty to refrain from negligence, since section 3-106
of the Tort Immunity Act granted it recreational property immunity
and because the operation of the harbor is not a proprietary
activity.  The trial court initially denied the Park District's
summary judgment motion.  The Park District then brought a motion
to reconsider, and the court reversed its ruling, reasoning that
because the property was recreational, section 3-106 of the Tort
Immunity Act immunized the Park District from a negligence action. 
It is from this order that plaintiff appeals.       
  In In re Chicago Flood Litigation, 176 Ill. 2d 179 (1997), the
Illinois Supreme Court recently determined that the
governmental/proprietary function does not preclude application of
the Tort Immunity Act.  Plaintiff therefore concedes her argument
that the Tort Immunity Act is inapplicable because the Park
District s operation of the harbor system was a proprietary
interest.    
  Plaintiff claims, however, that liability should nonetheless
be imposed upon defendant under the Recreational Use of Land and
Water Areas Act (Recreational Use Act) (745 ILCS 65/1 et seq. (West
1994)).  Plaintiff claims that the Recreational Use Act is
applicable to this case, rather than the Tort Immunity Act.  The
Recreational Use Act provides that an owner of land does not owe a
duty of care to keep the premises safe for entry or use by persons
for recreational or conservation purposes, or to warn persons
entering for such purposes of natural or dangerous conditions,
uses, structures or activities.  745 ILCS 65/3 (West 1994).  The
purpose of the Recreational Use Act is "to encourage owners of land
to make land and water areas available to the public for
recreational or conservation purposes by limiting their liability
toward persons entering thereon for such purposes."  745 ILCS 65/1
(West 1994).  The Recreational Use Act provides an immunity to all
land "owners," which includes private parties and political
subdivisions of the state.  745 ILCS 65/2(b)(West 1994).  "Land"
includes water and watercourses.  745 ILCS 65/2(a)(West 1994).  The
owner of land may, however, be liable for willful and wanton
failure to guard or warn against a dangerous condition, use,
structure, or activity.  745 ILCS 65/6(a)(West 1994).  Furthermore,
the Recreational Use Act is inapplicable "where the owner of the
land charges the person or persons who enter or go on the land for
the recreational use thereof."  745 ILCS 65/6(b)(West 1994). 
Plaintiff claims that because the Park District charges a fee for
use of its harbor system, the Park District cannot escape liability
for negligence under the Recreational Use Act.   
  Defendant, on the other hand, contends that the Tort Immunity
Act governs this case.  The Tort Immunity Act grants immunities and
defenses "to protect local public entities from liability arising
from the operation of government." 745 ILCS 10/1-101.1 (West 1992). 
Section 3-106 of the Tort Immunity Act 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 1992).   
Therefore, both the Recreational Use Act and the Tort Immunity Act 
relate to the same subject matter.  However, there is no case law
addressing the relationship between the Tort Immunity Act and the
Recreational Use Act.  
     When two statutes cover the same subject, the Illinois
Statute on Statutes provides in pertinent part:
             "Two or more Acts which relate to the same subject
            matter and which are enacted by the same General
            Assembly shall be construed together in such manner
            as to give full effect to each Act except in case of
            an irreconcilable conflict.  In a case of an
            irreconcilable conflict the Act last acted upon by
            the General Assembly is controlling to the extent of
            such conflict.  ***
               ***          
           The rules of construction provided for in this
        section are applicable to Acts enacted by the same
        General Assembly throughout the 2 year period of its
        existence."  5 ILCS 70/6 (West 1992).
         We find that the Tort Immunity Act and the Recreational Use
Act can be logically reconciled.  Section 3-106 of the Tort
Immunity Act provides protection for local public entities that
is additional to those protections contained in the Recreational
Use Act.  While a private party charging a fee for the use of a
waterway might be subject to a negligence claim under the
Recreational Use Act, a local public entity charging a fee would
have an additional immunity under section 3-106 that would not be
available to the private land owner.
     Furthermore, the law in Illinois is well established that,
where two statutory provisions cover the same subject matter, the
more specific statute governs.  Zimmer v. Village of Willowbrook,
242 Ill. App. 3d 437, 610 N.E.2d 709 (1993).  Plaintiff claims
that the Recreational Use Act, which specifically addresses
recreational activities in water and water courses and situations
in which a land owner charges a fee to enter the recreational
property, is the more specific statute and should apply to this
case.  We, however, are more persuaded by the Park District's
argument that the Tort Immunity Act is the more specific statute
since it specifically addresses parks, while the Recreational Use
Act makes no specific reference to parks but addresses land
generally.  See Davis v. United States, 716 F.2d 418 (7th Cir.
1983)(Recreational Area Licensing Act superseded the Recreational
Use Act.)
     Even if we were to find an irreconcilable conflict to exist
between the two statutes, the Tort Immunity Act would still be
controlling.  The Recreational Use Act and the Tort Immunity Act
were both enacted by the seventy-fourth General Assembly.  See
1965 Ill. Laws 2263, 2983.  The Recreational Use Act was enacted
on August 2, 1965, while the Tort Immunity Act was enacted on
August 13, 1965.  Thus, according to the Illinois Statute on
Statutes, the Tort Immunity Act, the last act acted on by the
seventy-fourth General Assembly, would be controlling.  5 ILCS
70/6 (West 1992).   
     Plaintiff next claims that, even if the Tort Immunity Act
applies, that does not entitle the Park District to summary
judgment because a question of fact exists regarding whether
stardock X has a solely recreational intended or permitted
purpose.  Plaintiff claims that stardocks are used to moor
emergency vehicles, for commercial travel, for commercial fishing,
scavenger and money-making ventures and, thus, stardock X has a
use other than recreational.  The Park District claims that the
marina it operated at Diversey Harbor was intended for the use of
recreational boaters, not commercial shipping.    
     In Bubb v. Springfield School District 186, 167 Ill. 2d 372,
657 N.E.2d 887 (1995), the court held that, in determining whether
property is recreational in nature, the type of activity performed
on the property is not significant; rather, immunity depends on
the character of the property.  In making such a determination,
courts have considered whether the property has been used for
recreation in the past or whether recreation has been encouraged
on the property.  The fact that the property may have both a
recreational and nonrecreational purpose would not defeat the
applicability of section 3-106.  Ozuk v. River Grove Board of
Education, 281 Ill. App. 3d 239, 666 N.E.2d 687 (1996)  There is
no dispute that  at least one use of the harbor was recreational. 
Therefore, plaintiff's negligence claim is barred by section 3-
106.  
     Accordingly, for the reasons set forth above, the trial court
order dismissing plaintiff's negligence count against the Park
District is affirmed.
     Affirmed.       
  DiVITO, P.J., and TULLY, J., concur.