Batson v. Pinckneyville Elementary School District 50

                               NO. 5-96-0772

                                  IN THE

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

VIRGINIA BATSON and BILL BATSON,   )  Appeal from the 
                                   )  Circuit Court of
     Plaintiffs-Appellants,        )  Perry County.
                                   )
v.                                 )  No. 93-L-35
                                   )
PINCKNEYVILLE ELEMENTARY SCHOOL    )  
DISTRICT #50,                      )  Honorable
                                   )  James W. Campenella,
     Defendant-Appellee.           )  Judge, presiding.
_________________________________________________________________

     JUSTICE KUEHN delivered the opinion of the court:
     On November 21, 1992, plaintiffs, Virginia Batson and her
husband, Bill Batson, attended a craft fair in the Pinckneyville
Junior High School gymnasium.  The gymnasium is owned and operated
by defendant, Pinckneyville Elementary School District #50. 
Virginia and Bill exited the gymnasium through a double door that
opened to a sidewalk.  The sidewalk contained a single step down
near this double door.  After stepping through the doorway and onto
the sidewalk, Virginia continued moving and fell down near the
single step.
     On November 19, 1993, Virginia and Bill initiated this action
in the Perry County Circuit Court.  Count I of their first amended
complaint seeks damages for Virginia, essentially claiming that
defendant was negligent in maintaining the step on the sidewalk in
a dangerous condition and failing to warn Virginia of that
condition.  Count II seeks derivative damages for Bill based upon
a loss of consortium.   
     On February 2, 1996, defendant filed its motion for summary
judgment grounded on immunity under section 3-106 of the Local
Government and Governmental Employees Tort Immunity Act (the Act)
(Ill. Rev. Stat. 1991, ch. 85, par. 3-106).  The circuit court
subsequently granted summary judgment in defendant's favor based
upon our supreme court's decision in Bubb v. Springfield School
District 186, 167 Ill. 2d 372, 657 N.E.2d 887 (1995).  On February
16, 1996, plaintiffs moved the circuit court to reconsider its
summary judgment ruling and requested leave to amend their
complaint to allege willful and wanton misconduct on defendant's
part.  On October 7, 1996, the circuit court denied plaintiffs'
motion.  Plaintiffs now appeal the circuit court's summary judgment
ruling and its denial of leave to amend the complaint. 
     The dispositive issue in this case is whether a genuine issue
of material fact exists, thereby precluding summary judgment.  We
hold that such an issue of material fact does exist and reverse.
     Summary judgment "shall be rendered without delay if the
pleadings, depositions, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue of material
fact and the moving party is entitled to a judgment as a matter of
law."  735 ILCS 5/2-1005 (West 1994).  However, it is a drastic
remedy and "must be granted with caution in order to avoid
preempting a litigant's right to trial by jury or his right to
fully present the factual basis of a case where a material dispute
may exist."  Lamkin v. Towner, 246 Ill. App. 3d 201, 204, 615 N.E.2d 1208, 1210 (1993).  "A triable issue of fact exists where
there is a dispute as to material facts or where the material facts
are undisputed but reasonable persons might draw different
inferences from those facts."  In re Estate of Hoover, 155 Ill. 2d 402, 411, 615 N.E.2d 736, 740 (1993).  In determining the
appropriateness of summary judgment, the trial court strictly
construes all evidence in the record against the movant and
liberally in favor of the opponent.  Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871 (1986).  On appeal, courts review
summary judgment orders de novo.  Myers v. Health Specialists,
S.C., 225 Ill. App. 3d 68, 72, 587 N.E.2d 494, 497 (1992).
     Section 3-106 of the 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."  Ill. Rev. Stat.
     1991, ch. 85, par. 3-106.
The legislative purpose of this section is to encourage the
development and maintenance of public parks, playgrounds, and
similar recreation areas.  Lewis v. Jasper County Community Unit
School District No. 1, 258 Ill. App. 3d 419, 422, 629 N.E.2d 1227,
1229 (1994).  Furthermore, "[b]y providing immunity, the
legislature sought to prevent the diversion of public funds from
their intended purpose to the payment of damage claims."  Bubb, 167 Ill. 2d  at 378, 657 N.E.2d  at 891.
     This case turns on whether the sidewalk on which Virginia fell
was "public property intended or permitted to be used for
recreational purposes" within the import of this statute (Ill. Rev.
Stat. 1991, ch. 85, par. 3-106).  The immunity provided under
section 3-106 does not hinge on the type of activity involved in a
particular case.  Ozuk v. River Grove Board of Education, 281 Ill.
App. 3d 239, 243, 666 N.E.2d 687, 690 (1996).  Rather, an
application of section 3-106 should be based on a case-by-case
evaluation of the subject property's character.  Bubb, 167 Ill. 2d 
at 384, 657 N.E.2d  at 893-94.  "In determining the nature of public
property, courts have therefore considered whether the property has
been used for recreation in the past or whether recreation has been
encouraged there."  Bubb, 167 Ill. 2d  at 382, 657 N.E.2d  at 893.
     Defendant's foremost argument for affirmance now rests on our
supreme court's recent decision in Sylvester v. Chicago Park
District, No. 81138, ___ Ill. 2d ___, ___ N.E.2d ___ (December 4,
1997), an opinion not considered below.[fn1] Defendant reads
Sylvester to grant immunity to all walkways providing access to
recreational facilities because such paths increase the usefulness
of these facilities.  We believe that defendant's reading is too
broad.
     Sylvester involved a negligence action seeking damages for
injuries sustained when the plaintiff tripped over a concrete
parking abutment and fell on the walkway of a park district parking
lot serving Soldier Field.  The defendant park district filed a
motion to dismiss the plaintiff's complaint in the circuit court
based upon section 3-106; the motion was subsequently denied. 
Following a bench trial, the circuit court entered judgment in the
plaintiff's favor.  On appeal, the first district appellate court
affirmed.  In reversing both the circuit court's denial of the
defendant park district's motion to dismiss and the appellate
court's affirmance thereof, our supreme court held:
     "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.
                                   * * *
          *** 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."  Sylvester, slip
     op. at 7-8.
     Defendant now urges that this holding supports a reversal
because the sidewalk upon which Virginia fell increased the
gymnasium's usefulness and, thus, is subject to section 3-106
immunity.  Defendant's contention advocates widespread immunity for
all walkways leading to recreational facilities.  Such an expansive
reading of section 3-106 is unsupported.
     We recognize that the Sylvester opinion noted that surrounding
walkways and parking lots increased the usefulness of the Soldier
Field stadium.  However, that increased usefulness alone was not
outcome determinative, as logic will not allow it.  Immunity based
solely upon a consideration of the "increased usefulness" factor
would be potentially unbounded, causing absurd results.  Any
walkway, even a considerable distance from recreational property,
could increase the usefulness of that property if the walkway is
travelled to ultimately enter the area.  Any judicial attempt to
restrict this potentially unlimited immunity would require
arbitrary line-drawing.  
     Such arbitrary decisions were certainly not the legislature's
intention.  The plain language of section 3-106 contemplates a
determination of immunity for bounded public property.  For
example, it is intended to afford immunity to a playground,
including nonrecreational structures within it.  Lewis, 258 Ill.
App. 3d at 423, 629 N.E.2d  at 1230.  It was not intended to grant
immunity outside recreational property.  
     Sylvester's holding confirms that the "increased usefulness"
factor is only properly considered after a determination that the
nonrecreational structure is within the recreational public
property covered by section 3-106.  The supreme court references a
single recreational entity comprised of the Soldier Field stadium
and its adjacent walkways and parking lots, namely "the Soldier
Field recreational facility."  Sylvester, slip op. at 8.  It
clearly considered the site of the plaintiff's fall as "an integral
part" of a "whole."  Sylvester, slip op. at 7-8.  The supreme court
further stressed its holding's consistency with other decisions of
both the Seventh Circuit and the appellate court on similar issues,
all of which involved a bar on recovery under section 3-106 because
each plaintiff suffered injury within a recreational facility. 
Diamond v. Springfield Metropolitan Exposition Auditorium
Authority, 44 F.3d 599 (7th Cir. 1995) (plaintiff injured in
convention center tunnel); Annen v. Village of McNabb, 192 Ill.
App. 3d 711, 548 N.E.2d 1383 (1990) (plaintiff injured in park
restroom); Lewis v. Jasper County Community Unit School District
No. 1, 258 Ill. App. 3d 419, 629 N.E.2d 1227 (1994) (plaintiff
injured on pumphouse located on school playground); Conoway v.
Hanover Park Park District, 277 Ill. App. 3d 896, 661 N.E.2d 528
(1996) (plaintiff injured in drainage ditch within park); Hanover
Insurance Co. v. Board of Education of City of Chicago, 240 Ill.
App. 3d 173, 608 N.E.2d 183 (1992) (plaintiff injured on cracked
concrete in school playground); Kirnbauer v. Cook County Forest
Preserve District, 215 Ill. App. 3d 1013, 576 N.E.2d 168 (1991)
(plaintiff injured by cable barricade in forest preserve).  The
Sylvester holding is not novel; it merely applies section 3-106 in
the same manner as the appellate court had previously.
     Therefore, it is apparent that section 3-106 may not afford
immunity to a nonrecreational structure, even though the structure
might be useful to a recreational public property, unless that
structure is within the recreational property.
     In the present case, we conclude that the subject portion of
the sidewalk is not necessarily recreational public property.  At
first glance, it seems that the facts before us are akin to those
in Sylvester, as both involve a walkway leading to a recreational
structure.  However, a closer examination reveals that our
circumstances are much different than those addressed in Sylvester. 
The walkway involved here is part of a school complex, an area
scattered with recreational property.  Such walkways promote the
usefulness of all buildings and areas, both recreational and
nonrecreational, within a school complex.  
     Viewing recreational school areas, together with adjacent
sidewalks and parking lots, as comprising a single recreational
area would effectively immunize all school property, contrary to
the purpose of section 3-106.  Although this sidewalk is near the
playground and gymnasium, we nonetheless consider it a parcel of
property separate from those two entities for purposes of section
3-106.  Indeed, an analysis of the independent character of a
school sidewalk adjacent to recreational property is still viable,
as Sylvester did not overrule Bubb.  Because we consider the
subject portion of the sidewalk to be outside both the gymnasium
enclosure and the playground area, the determination of the
independent character of the sidewalk portion involved will
control.  Therefore, we must conduct the required case-by-case
analysis.  Bubb, 167 Ill. 2d  at 384, 657 N.E.2d  at 893-94.
     A sidewalk's purpose is to serve as "a walk for foot
passengers" or "a foot pavement."  Webster's Third New
International Dictionary 2113 (1993).  However, a public property
may have more than one intended use.  Bubb, 167 Ill. 2d  at 382, 657 N.E.2d  at 893.  
     Defendant contends that the sidewalk involved in the present
case additionally provides a recreational use for the school's
students.  In support of this contention, defendant points to our
supreme court's decision in Bubb, the case which the circuit court
found controlling.  We disagree with this finding.  We perceive
that case as factually distinguishable from the instant case, and
actually supportive of reversal. 
     In Bubb, the supreme court was likewise faced with an action
based on injuries sustained from a fall on a school sidewalk.  Upon
determining that the sidewalk involved was both intended and
permitted to be used as recreational property, the supreme court
reversed both the circuit court's denial of the defendant school
district's motion for summary judgment and the appellate court's
affirmance thereof.  Bubb, 167 Ill. 2d  at 383, 657 N.E.2d  at 893. 
However, that case involved an important factor missing here--a
recreational intent.
     Unlike Bubb, we have no physical indication from the sidewalk,
such as painted markings, from which to glean recreational intent. 
Such property characteristics indicative of recreational intent are
not necessarily required.  Still, the record before us contains
only affidavits stating that students are permitted to recreate on
the subject portion of the sidewalk.  The record is silent as to
recreational intent.  We recognize that the express language of
section 3-106 uses the phrase "intended or permitted."  Ill. Rev.
Stat. 1991, ch. 85, par. 3-106.  Nevertheless, "[i]n construing
statutory language, a court will assume that the legislature did
not intend to produce an absurd or unjust result."  Cummins v.
Country Mutual Insurance Co., 178 Ill. 2d 474, 479, 687 N.E.2d 1021, 1024 (1997).  We believe that providing blanket immunity to
any public property where recreation has ever been permitted is an
absurd and unjust result not contemplated by the legislature.
     Likewise, the supreme court in Bubb noted its own concern over
the potentially unjust result of a broad reading of section 3-106: 
     "[W]hen construing a legislative act, the court should
     consider each section in connection with other sections.
     [Citation.]  As noted earlier, the legislature codified the
     general duty of a local government to use ordinary care to
     maintain public property in section 3-102 of the Tort Immunity
     Act.  [Citation.]  Section 3-106 provides immunity for
     recreational property.  Providing immunity to any public
     property where recreation might occur would eviscerate the
     duty codified in section 3-102.  We therefore agree with the
     appellate court that, at some point, the use of public
     property for recreation may be so incidental that section 3-
     106 does not apply."  Bubb, 167 Ill. 2d  at 382, 657 N.E.2d  at
     893.
We cannot overlook this guidance.  
     Although uncontroverted, defendant's affidavits are an
insufficient basis for a finding of immunity on summary judgment.
These affidavits indicate nothing more than the school's allowance
of students to use the sidewalk for an occasional game of hide and
seek or ball-tossing.  We cannot unequivocally conclude that such
activities constitute regular recreational use of the sidewalk. 
Rather, we believe that reasonable persons may infer that the
permitted recreation was only incidental, thereby rendering section
3-106 inapplicable.  Therefore, because the sidewalk's character
presents a genuine issue of material fact which may only be
properly decided by a jury, the circuit court erred in summarily
concluding that the sidewalk's character is recreational.     
     For these reasons, the judgment of the Perry County Circuit
Court is reversed, and this case is remanded with directions to
proceed in accordance with this opinion.  

     Reversed and remanded with directions.

     RARICK, J. and HOPKINS, J. concur.
     [fn1] The Sylvester v. Chicago Park District opinion was the
subject of defendant's motion to cite additional authority filed
while this case was under advisement.  We granted that motion on
December 15, 1997, allowing the parties to file additional briefs
addressing the effect, if any, of that decision on this case.