Sylvester v. Chicago Park District
Annotate this Case
Sylvester v. Chicago Park District, No. 81138 (12/4/97)
NOTICE: Under Supreme Court Rule 367 a party has 21 days
after the filing of the opinion to request a rehearing.
Also, opinions are subject to modification, correction or
withdrawal at anytime prior to issuance of the mandate by
the Clerk of the Court. Therefore, because the following
slip opinion is being made available prior to the Court's
final action in this matter, it cannot be considered the
final decision of the Court. The official copy of the
following opinion will be published by the Supreme Court's
Reporter of Decisions in the Official Reports advance
sheets following final action by the Court.
Docket No. 81138--Agenda 13--March 1997.
ALICE SYLVESTER, Appellee, v. THE CHICAGO PARK
DISTRICT, Appellant.
Opinion filed December 4, 1997.
JUSTICE MILLER delivered the opinion of the court:
Plaintiff, Alice Sylvester, filed a complaint
against defendant, the Chicago Park District, to recover
damages for injuries she sustained as a result of a fall
on Park District property. The complaint alleged the Park
District was negligent in allowing a concrete parking
abutment to block a walkway adjacent to a parking lot
exit located south of Soldier Field.
The Park District moved to dismiss the complaint
pursuant to 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). 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." Ill. Rev. Stat. 1989, ch. 85,
par. 3--106.
The trial judge denied the Park District's motion to
dismiss.
Following a bench trial, the judge ruled in favor of
plaintiff. However, the judge reduced plaintiff's damages
by 10% due to her comparative negligence. The Park
District appealed. The appellate court affirmed. No. 1--
93--3639 (unpublished order under Supreme Court Rule 23).
The Park District filed a petition for leave to
appeal. 155 Ill. 2d R. 315(a). We allowed the Park
District's petition. We also allowed the Illinois
Association of Park Districts, the Illinois Municipal
League, and the Illinois Governmental Association of
Pools to file a joint amici curiae brief. 155 Ill. 2d R.
345(a). While the appeal was pending here, plaintiff
filed a motion in this court seeking leave to file a
first amended complaint in the trial court. Plaintiff's
motion has been taken with the case.
BACKGROUND
On September 23, 1991, plaintiff and her husband
parked their car at a McCormick Place parking lot and
walked toward Soldier Field in order to meet their
daughters for a Monday evening Chicago Bears football
game. While walking to Soldier Field, plaintiff tripped
over a concrete parking abutment (a "car stop") and fell.
Employees of the Park District admitted that the car stop
was improperly blocking a walkway.
The record reveals that at the time of plaintiff's
fall, the car stop was located on a walkway adjacent to
a parking lot exit at the northeast corner of Soldier
Field's south parking lot. In her complaint, plaintiff
alleged that this location was owned, operated,
possessed, and maintained by the Park District. The Park
District admitted this allegation.
Plaintiff stated in her complaint that she was
walking on Park District property in order to reach
Soldier Field to attend a football game. Plaintiff has
not alleged and the record does not reveal whether
plaintiff's fall occurred within the confines of a park.
Evidence was introduced, however, to show that the
Burnham Park maintenance department cleans the south lot
after events occurring at Soldier Field.
Plaintiff allegedly sustained a number of injuries
as a result of her fall. Plaintiff sued the Park District
under a theory of negligence. Plaintiff alleged that the
Park District was negligent in either placing the car
stop on the walkway or in failing to remove the car stop
from the walkway. Plaintiff also alleged that the Park
District was negligent in failing to warn pedestrians of
the car stop's location and in failing to illuminate
adequately the area in which the car stop was located.
Plaintiff did not allege any willful or wanton misconduct
on the part of the Park District.
Relying on section 3--106 of the Tort Immunity Act,
the Park District filed a motion to dismiss plaintiff's
complaint under section 2--619(a)(9) of the Code of Civil
Procedure. Ill. Rev. Stat. 1989, ch. 110, par. 2--
619(a)(9). The Park District claimed in its motion that
plaintiff's use of its property was for the recreational
purpose of attending a football game. The Park District
stated that this use was intended and permitted by the
Park District. Thus, the Park District argued that
plaintiff's allegations of negligence were barred by
section 3--106.
In support of its motion to dismiss, the Park
District stated that the parking lot and walkway were
recreational property because they allowed patrons of
Soldier Field to park in close proximity to the stadium.
The Park District stated that parking in proximity to the
stadium furthers a patron's recreational activity of
attending a Chicago Bears football game. The Park
District's motion to dismiss was denied.
In its answer to plaintiff's complaint, the Park
District asserted several affirmative defenses. The Park
District again relied on section 3--106. The Park
District claimed that it was not liable for the
negligence alleged by plaintiff because plaintiff's fall
occurred on public property used for recreational
purposes.
In a further affirmative defense, the Park District
also relied on section 3--102(a) of the Tort Immunity Act
(Ill. Rev. Stat. 1989, ch. 85, par. 3--102(a)). Section
3--102(a) provides that a local public entity shall not
be liable for injury occurring on public property unless
it is proven that the local public entity has actual or
constructive notice of the injury causing condition. The
Park District stated it had neither actual nor
constructive notice of the car stop's improper placement
on the walkway. Lacking notice, the Park District alleged
that it was immune from liability.
In the alternative, the Park District relied on
section 3--102(b) of the Tort Immunity Act (Ill. Rev.
Stat. 1989, ch. 85, par. 3--102(b)). Section 3--102(b)
provides that a local public entity does not have
constructive notice of an injury causing condition
located on public property if the local public entity
operates a reasonably adequate inspection system. The
Park District alleged that its pregame traffic control
and parking lot setup routine around Soldier Field
qualified as an "inspection system" under section 3--
102(b). The Park District claimed that its inspection
system provided a defense to any finding of constructive
notice.
Following a bench trial, the judge ruled in favor of
plaintiff. In reaching this result, the judge found that
the Park District was negligent in failing to provide
reasonably safe access to Soldier Field. The judge then
addressed, and rejected, the Park District's defenses
under sections 3--106 and 3--102.
The judge found that the Park District's section 3--
106 defense did not apply. The judge stated: "As I
previously said, the Park District can't rely on Section
3--106, which grants immunity for recreational
facilities, because this parking lot that is access to
Soldier Field is not a recreational facility."
The judge also found that there was no evidence to
indicate that the Park District had actual notice of the
car stop's location on the walkway. However, the judge
did find that the Park District had constructive notice
of the car stop's location. The car stop was conspicuous
because it weighed approximately 100 pounds and took
several men or a forklift to move. Also, based on the
photographs entered into evidence, the judge stated,
"this conspicuous obstacle did exist, and it must have
been there, I found, for enough time for the Park
District to become aware of it." Because the Park
District had constructive notice of the car stop's
improper placement on the walkway, the judge found that
the Park District was not immune from liability under
section 3--102(a).
The judge further found no evidence to support the
Park District's claim that its pregame traffic control
and parking lot setup routine qualified as an inspection
system that would have led to the discovery of the
improperly positioned car stop. Thus, section 3--102(b)
did not provide a defense to the Park District's
constructive notice of the car stop's improper location
on the walkway.
The appellate court affirmed. No. 1--93--3639
(unpublished order under Supreme Court Rule 23). The
appellate court examined the Park District's section 3--
106 defense in light of Bubb v. Springfield School
District 186, 167 Ill. 2d 372 (1995). In Bubb, we
addressed whether a school district is immune from
liability for negligence under section 3--106 when a
student is injured on a sidewalk surrounding a school
when that sidewalk is used for recreation.
Relying on Bubb, the appellate court attempted to
determine whether the location of plaintiff's fall was a
recreational area under section 3--106. The court stated
that the Park District failed to present evidence
regarding the recreational character of the location of
plaintiff's fall. Lacking this evidence, the court
concluded the trial judge was correct to find that
section 3--106 did not provide immunity for the Park
District.
During its appeal to the appellate court, the Park
District, for the first time in its reply brief, asked
the appellate court to take judicial notice of the fact
that plaintiff's fall occurred within Burnham Park. The
court declined to do so. The court stated that even if it
were to take judicial notice of the location of Burnham
Park, the Park District still failed to carry its burden
of establishing a section 3--106 affirmative defense. The
court found that the Park District did not introduce any
evidence that plaintiff's fall occurred in an area
traditionally used for recreational purposes.
The appellate court also reviewed the trial judge's
two section 3--102 findings. Because the car stop was
conspicuous and improperly positioned long enough for the
Park District to become aware of it, the court concluded
that a finding of constructive notice under section 3--
102(a) was not against the manifest weight of the
evidence.
In addition, the appellate court agreed with the
trial judge that there was no evidence to demonstrate
that the Park District operated a reasonably adequate
inspection system. Thus, the trial judge's section 3--
102(b) finding was not against the manifest weight of the
evidence.
DISCUSSION
The Park District asks this court to take judicial
notice of the fact that plaintiff's fall occurred within
Burnham Park. Assuming we take judicial notice of this
fact, the Park District argues that it is automatically
entitled to immunity under section 3--106 because parks
are by definition "property intended or permitted to be
used for recreational purposes." Ill. Rev. Stat. 1989,
ch. 85, par. 3--106. For the reasons that follow, we
decline to take judicial notice of the location of
plaintiff's fall.
Prior to trial, the Park District did not claim in
its motion to dismiss or in its answer to plaintiff's
complaint that plaintiff's fall occurred within Burnham
Park. During trial, the Park District did not claim or
introduce evidence to demonstrate that plaintiff was
injured in a park. In fact, the Park District concedes in
its brief that "no evidence was presented at trial
technically fixing the situs of plaintiff's injury as a
sidewalk located in Burnham Park." Furthermore, the Park
District never asked the trial judge to take judicial
notice of the fact that plaintiff was injured in Burnham
Park.
The Park District in its reply brief in the
appellate court asked that court to take judicial notice
that plaintiff was injured in Burnham Park. The appellate
court declined to do so. The court stated that even if it
were to take judicial notice of the location of
plaintiff's fall, the Park District failed to establish
that plaintiff's fall occurred in an area traditionally
used for recreational purposes.
The Park District has waived its contention that
plaintiff was injured in a park by failing to present
evidence or seek judicial notice of this fact in the
trial court. "[I]t is axiomatic that where evidence was
not offered during the trial of a matter, it cannot be
introduced for the first time on appeal." H.J. Tobler
Trucking Co. v. Industrial Comm'n, 37 Ill. 2d 341, 344
(1967). Also, "[i]t is required that the points argued on
appeal be commensurate with the issues presented at
trial." Kravis v. Smith Marine, Inc., 60 Ill. 2d 141, 147
(1975). Moreover, the Park District's contention that
plaintiff was injured in a park was raised for the first
time in its reply brief in the appellate court. Under
Supreme Court Rule 341(e)(7), points not argued in an
appellant's brief are waived and shall not be raised in
the reply brief. 155 Ill. 2d R. 341(e)(7).
In the alternative, the Park District argues that
plaintiff's fall occurred on "property intended or
permitted to be used for recreational purposes." Ill.
Rev. Stat. 1989, ch. 85, par. 3--106. The evidence shows
that plaintiff's fall occurred on the walkway of a Park
District parking lot serving Soldier Field. The Park
District intended for and permitted football fans to park
in the lots adjacent to Soldier Field and use the
walkways to gain access to the stadium. Plaintiff
possessed a ticket to attend the football game and was
injured while walking to the game. Thus, the Park
District argues that the location of plaintiff's fall was
part of the recreational purpose of Soldier Field. We
agree.
In Bubb, we found that section 3--106 "applies if
public property is intended or permitted to be used for
recreational purposes, regardless of the primary purpose
of the property." Bubb, 167 Ill. 2d at 384. Application
of a section 3--106 defense does not depend only on a
plaintiff's active engagement in a recreational activity
at the time of injury. See J. DeAno, Governmental
Immunities for Recreational Injuries, 82 Ill. B.J. 28,
28-29 (1994).
In addition, section 3--106 may apply to facilities
or structures that increase the usefulness of public
property intended or permitted to be used for
recreational purposes. These facilities or structures
need not be recreational in character for section 3--106
to apply. See S. Puiszis, Illinois Municipal Tort
Liability sec. 4--10, at 183 (1996). 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.
A review of the legislative history supports our
conclusion. Prior to 1986, local public entities were
faced with difficulties affording liability insurance. As
stated by Senator Rock, legislators were "somewhat
appalled that counties and park districts and
municipalities were confronted with the fact that they
were uninsurable or that the insurance that was offered
to them was unaffordable." 84th Ill. Gen. Assem., Senate
Proceedings, June 30, 1986, at 78 (statements of Senator
Rock).
The legislature responded to these difficulties by
enacting Public Act 84--1431 which, among other things,
amended portions of the Tort Immunity Act. In order to
decrease the costs of liability insurance, the
legislature expanded the scope of immunity provided to
local public entities under section 3--106. The
legislature accomplished this expansion of immunity by
abandoning the focus on specific types of public property
and instead focusing on the intended or permitted use of
the property.
Prior to its amendment in 1986, "section 3--106
immunity was specifically limited to parks, playgrounds,
and open areas used for recreational purposes." Bubb, 167 Ill. 2d at 378. Following its amendment, immunity was
expanded by including "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."
Pub. Act 84--1431, art. 1, sec. 2, eff. November 25, 1986
(amending Ill. Rev. Stat. 1985, ch. 85, par. 3--106).
Thus, under section 3--106 as amended, it is the
character of the property as a whole that determines
whether immunity applies. See Bubb, 167 Ill. 2d at 379,
381 (agreeing with the reasoning of courts that examine
"the nature of the property as a whole"). 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.
We note that our conclusion is consistent with the
Seventh Circuit's decision in Diamond v. Springfield
Metropolitan Exposition Auditorium Authority, 44 F.3d 599
(7th Cir. 1995). In Diamond, the plaintiff was on her way
to a career related conference when she was injured in
the doorway of an underground tunnel leading to a
facility used for conventions, shows, and sporting
events.
The court stated that section 3--106 immunity
depends on "the character of the property as a whole,
rather than whether the injured person was engaged in a
nonrecreational activity." Diamond, 44 F.3d at 604.
Because both participants in and spectators of sporting
events are engaged in recreation (see Diamond, 44 F.3d at
603), the court found that the facility was permitted to
be used for recreational purposes (see Diamond, 44 F.3d
at 604-05). Accordingly, the court concluded that
plaintiff's negligence action was barred by section 3--
106.
Our appellate court has reached similar results. In
Annen v. Village of McNabb, 192 Ill. App. 3d 711 (1990),
plaintiff was injured in a restroom located in a park.
Under section 3--106, the appellate court affirmed the
dismissal of plaintiff's negligence claim. The court
stated that "[w]hile a restroom building itself is not
intended to be used for recreational purposes, it allows
a park user to continue using the park ***. This
increases the usefulness of the park and advances the
legislative purpose." Annen, 192 Ill. App. 3d at 713.
In Lewis v. Jasper County Community Unit School
District No. 1, 258 Ill. App. 3d 419 (1994), plaintiff
was injured by falling against a pumphouse located on a
school playground. Relying on section 3--106, the
appellate court affirmed the dismissal of plaintiff's
negligence claims. The court stated that the "immunity
provisions of section 3--106 have been held to apply to
nonrecreational equipment and structures located on
premises used for recreational activities." Lewis, 258
Ill. App. 3d at 423.
Similar results may be found in additional cases.
See, e.g., Conoway v. Hanover Park Park District, 277
Ill. App. 3d 896 (1996) (plaintiff was barred from
recovery when injured by falling into a drainage ditch in
a park); Hanover Insurance Co. v. Board of Education of
the City of Chicago, 240 Ill. App. 3d 173 (1992) (worker
was barred from recovery when injured by slipping on
cracked concrete in a school playground while performing
masonry repairs); Kirnbauer v. Cook County Forest
Preserve District, 215 Ill. App. 3d 1013 (1991)
(plaintiff was barred from recovery when injured by a
cable barricade restricting entry to a forest preserve
access road).
Because we find that the Park District is not liable
in actions for negligence in the circumstances presented
here, we do not address the Park District's additional
immunity arguments regarding constructive notice under
section 3--102 nor do we address the Park District's
argument that parks are automatically entitled to
immunity under section 3--106.
We must still dispose of plaintiff's pending motion
seeking leave to file a first amended complaint under
Supreme Court Rule 362. 155 Ill. 2d R. 362. The purpose
of Rule 362 is to amend the pleadings to conform to the
evidence presented at trial. A movant "must show the
amendment to be necessary, that no prejudice will result
to the adverse party if the amendment sought is
permitted, and that the issues sought to be raised by the
amendment are supported by the facts in the record on
appeal." 155 Ill. R. 362(b). "Rule 362 is not a vehicle
to raise wholly new issues on appeal." Local 165 v.
Bradley, 149 Ill. App. 3d 193, 213 (1986).
In plaintiff's motion, she seeks leave to add a
second count to her complaint alleging that the Park
District engaged in willful and wanton misconduct. The
trial had proceeded only on a theory of negligence. In
fact, plaintiff's attorney stated to the trial court:
"First of all, I would just like to state again for the
record this case is based upon [a] theory of negligence,
and it is not incumbent upon my client in this action to
prove any willful and wanton conduct on the part of the
Park District."
In Griffin v. Darda, 28 Ill. App. 3d 693 (1975),
plaintiff was a passenger in an automobile that collided
with another vehicle. Plaintiff filed suit against the
driver of the automobile in which she was riding.
Plaintiff alleged the driver was guilty of willful and
wanton misconduct. Following a bench trial, judgment was
entered in the driver's favor. On appeal, plaintiff
sought to amend her complaint to add a count alleging
negligence against the driver. After citing Rule 362, the
appellate court stated that the trial below had:
"proceeded on the theory that when
[plaintiff] was injured, [the driver] was
guilty of willful and wanton misconduct.
Witnesses were called, cross-examination was
conducted, and evidence was presented in
accordance with this theory. There is no fact
in the record to support the notion that
negligence was a theory of the case." Griffin,
28 Ill. App. 3d at 696-97.
The appellate court denied plaintiff's motion seeking
leave to file an amended complaint.
In this case, plaintiff proceeded on a theory of
negligence and specifically stressed that point in the
trial court. There are no facts in the record which
indicate that a theory of willful and wanton misconduct
on the part of the Park District was a theory at trial.
Like the Park District's request that we take judicial
notice of the parking lot's location within Burnham Park
to which the plaintiff objected, plaintiff's attempt to
amend her complaint comes too late. Plaintiff's motion
seeking leave to file a first amended complaint is
denied.
CONCLUSION
For the foregoing reasons, we find that the Park
District is entitled to immunity under section 3--106 of
the Tort Immunity Act. Accordingly, we reverse the
judgments of the appellate and trial courts. In addition,
we deny plaintiff's motion seeking leave to file a first
amended complaint.
Judgments reversed.
CHIEF JUSTICE FREEMAN, specially concurring:
My colleagues hold that plaintiff's fall occurred on
"property intended or permitted to be used for
recreational purposes" as provided in 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). Therefore, they find that the Park
District is not liable for injuries which the plaintiff
sustained. I concur with the majority's conclusion that
the property on which plaintiff fell is intended or
permitted to be used for recreational purposes. However,
I believe that the majority's application of the
increased usefulness test will provide broader immunity
than the legislature intended.
Specifically, the majority asserts that the Park
District intended for and permitted football fans to park
in the lots adjacent to Soldier Field and use the
walkways to gain access to the stadium. Because plaintiff
possessed a ticket to attend the football game and was
injured while walking to the game, the majority concludes
that the location of plaintiff's fall was part of the
recreational purpose of Soldier Field.
The majority bases its reasoning on appellate court
cases which have held that, taken as a whole, a facility
or structure will be considered to fall within the scope
of section 3--106 if it increases the usefulness of
public property intended or permitted to be used for
recreational purposes. See Conoway v. Hanover Park Park
District, 277 Ill. App. 3d 896, 900 (1996); Kirnbauer v.
Cook County Forest Preserve District, 215 Ill. App. 3d
1013, 1022-23 (1991). This test was first espoused in
Annen v. Village of McNabb, 192 Ill. App. 3d 711 (1990).
In Annen, the plaintiff was using a restroom located
within a park when a sink fell from a wall, seriously
injuring her. The court found that the purpose of section
3--106 manifested an intent to include restroom
facilities within a park as part of the park itself. The
court stated:
"A restroom facility located within a
park is a part of the park. While a restroom
building itself is not intended to be used for
recreational purposes, it allows a park user
to continue using the park without having to
leave the park to use restroom facilities.
This increases the usefulness of the park and
advances the legislative purpose." Annen, 192
Ill. App. 3d at 713.
The majority in the instant case adopts the reasoning in
Annen and concludes that, "[a]lthough 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." Slip op. at 7.
Although the increased usefulness test provides a
fairly straightforward means to determine whether certain
property is subject to section 3--106 immunity, I do not
believe that the test should be so mechanically applied
such that any consideration of the injured party's use of
the property is ignored. In fact, we considered limiting
the scope of the "increased usefulness" test in Bubb,
where we stated:
"Providing immunity to any public property
where recreation might occur would eviscerate
the duty codified in section 3--102. *** [A]t
some point, the use of public property for
recreation may be so incidental that section
3--106 does not apply." Bubb v. Springfield
School District 186, 167 Ill. 2d 372, 382
(1995).
I believe that this case is one in which plaintiff's
use of the property was so incidental that section 3--106
should not apply. The record reveals that the plaintiff
parked her car in the McCormick Place parking lot,
approximately one mile from Soldier Field. However, the
injury occurred as she was crossing the south parking
lot, which is located across the street from Soldier
Field. The parking lot where plaintiff was injured does
increase the usefulness of Soldier Field; the lot
provides convenient parking for the public. However,
plaintiff's actual use of the property was incidental, as
she was merely walking across the lot to reach Soldier
Field. It is only happenstance that the lot is available
to increase the use of Soldier Field. Plaintiff's
presence on the lot had nothing to do with the lot's
availability for parking. Plaintiff merely chose the lot
as the path by which she could access Soldier Field. Had
plaintiff chosen a different path to access Soldier
Field, that property, simply because it provided
convenient access, would not merit section 3--106
immunity.
I do not believe that the legislature intended to
expand the scope of section 3--106 to provide immunity to
governmental units for use that is merely incidental to
the purpose of the property. For all practical purposes,
unless the increased usefulness test is limited in its
application and scope, the duty of a governmental unit to
exercise even ordinary care will be diminished.
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 make
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.
NOTICE: Under Supreme Court Rule 367 a party has 21 days
after the filing of the opinion to request a rehearing.
Also, opinions are subject to modification, correction or
withdrawal at anytime prior to issuance of the mandate by
the Clerk of the Court. Therefore, because the following
slip opinion is being made available prior to the Court's
final action in this matter, it cannot be considered the
final decision of the Court. The official copy of the
following opinion will be published by the Supreme Court's
Reporter of Decisions in the Official Reports advance
sheets following final action by the Court.
Docket No. 81138--Agenda 13--March 1997.
ALICE SYLVESTER, Appellee, v. THE CHICAGO PARK
DISTRICT, Appellant.
Opinion filed December 4, 1997.
JUSTICE MILLER delivered the opinion of the court:
Plaintiff, Alice Sylvester, filed a complaint
against defendant, the Chicago Park District, to recover
damages for injuries she sustained as a result of a fall
on Park District property. The complaint alleged the Park
District was negligent in allowing a concrete parking
abutment to block a walkway adjacent to a parking lot
exit located south of Soldier Field.
The Park District moved to dismiss the complaint
pursuant to 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). 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." Ill. Rev. Stat. 1989, ch. 85,
par. 3--106.
The trial judge denied the Park District's motion to
dismiss.
Following a bench trial, the judge ruled in favor of
plaintiff. However, the judge reduced plaintiff's damages
by 10% due to her comparative negligence. The Park
District appealed. The appellate court affirmed. No. 1--
93--3639 (unpublished order under Supreme Court Rule 23).
The Park District filed a petition for leave to
appeal. 155 Ill. 2d R. 315(a). We allowed the Park
District's petition. We also allowed the Illinois
Association of Park Districts, the Illinois Municipal
League, and the Illinois Governmental Association of
Pools to file a joint amici curiae brief. 155 Ill. 2d R.
345(a). While the appeal was pending here, plaintiff
filed a motion in this court seeking leave to file a
first amended complaint in the trial court. Plaintiff's
motion has been taken with the case.
BACKGROUND
On September 23, 1991, plaintiff and her husband
parked their car at a McCormick Place parking lot and
walked toward Soldier Field in order to meet their
daughters for a Monday evening Chicago Bears football
game. While walking to Soldier Field, plaintiff tripped
over a concrete parking abutment (a "car stop") and fell.
Employees of the Park District admitted that the car stop
was improperly blocking a walkway.
The record reveals that at the time of plaintiff's
fall, the car stop was located on a walkway adjacent to
a parking lot exit at the northeast corner of Soldier
Field's south parking lot. In her complaint, plaintiff
alleged that this location was owned, operated,
possessed, and maintained by the Park District. The Park
District admitted this allegation.
Plaintiff stated in her complaint that she was
walking on Park District property in order to reach
Soldier Field to attend a football game. Plaintiff has
not alleged and the record does not reveal whether
plaintiff's fall occurred within the confines of a park.
Evidence was introduced, however, to show that the
Burnham Park maintenance department cleans the south lot
after events occurring at Soldier Field.
Plaintiff allegedly sustained a number of injuries
as a result of her fall. Plaintiff sued the Park District
under a theory of negligence. Plaintiff alleged that the
Park District was negligent in either placing the car
stop on the walkway or in failing to remove the car stop
from the walkway. Plaintiff also alleged that the Park
District was negligent in failing to warn pedestrians of
the car stop's location and in failing to illuminate
adequately the area in which the car stop was located.
Plaintiff did not allege any willful or wanton misconduct
on the part of the Park District.
Relying on section 3--106 of the Tort Immunity Act,
the Park District filed a motion to dismiss plaintiff's
complaint under section 2--619(a)(9) of the Code of Civil
Procedure. Ill. Rev. Stat. 1989, ch. 110, par. 2--
619(a)(9). The Park District claimed in its motion that
plaintiff's use of its property was for the recreational
purpose of attending a football game. The Park District
stated that this use was intended and permitted by the
Park District. Thus, the Park District argued that
plaintiff's allegations of negligence were barred by
section 3--106.
In support of its motion to dismiss, the Park
District stated that the parking lot and walkway were
recreational property because they allowed patrons of
Soldier Field to park in close proximity to the stadium.
The Park District stated that parking in proximity to the
stadium furthers a patron's recreational activity of
attending a Chicago Bears football game. The Park
District's motion to dismiss was denied.
In its answer to plaintiff's complaint, the Park
District asserted several affirmative defenses. The Park
District again relied on section 3--106. The Park
District claimed that it was not liable for the
negligence alleged by plaintiff because plaintiff's fall
occurred on public property used for recreational
purposes.
In a further affirmative defense, the Park District
also relied on section 3--102(a) of the Tort Immunity Act
(Ill. Rev. Stat. 1989, ch. 85, par. 3--102(a)). Section
3--102(a) provides that a local public entity shall not
be liable for injury occurring on public property unless
it is proven that the local public entity has actual or
constructive notice of the injury causing condition. The
Park District stated it had neither actual nor
constructive notice of the car stop's improper placement
on the walkway. Lacking notice, the Park District alleged
that it was immune from liability.
In the alternative, the Park District relied on
section 3--102(b) of the Tort Immunity Act (Ill. Rev.
Stat. 1989, ch. 85, par. 3--102(b)). Section 3--102(b)
provides that a local public entity does not have
constructive notice of an injury causing condition
located on public property if the local public entity
operates a reasonably adequate inspection system. The
Park District alleged that its pregame traffic control
and parking lot setup routine around Soldier Field
qualified as an "inspection system" under section 3--
102(b). The Park District claimed that its inspection
system provided a defense to any finding of constructive
notice.
Following a bench trial, the judge ruled in favor of
plaintiff. In reaching this result, the judge found that
the Park District was negligent in failing to provide
reasonably safe access to Soldier Field. The judge then
addressed, and rejected, the Park District's defenses
under sections 3--106 and 3--102.
The judge found that the Park District's section 3--
106 defense did not apply. The judge stated: "As I
previously said, the Park District can't rely on Section
3--106, which grants immunity for recreational
facilities, because this parking lot that is access to
Soldier Field is not a recreational facility."
The judge also found that there was no evidence to
indicate that the Park District had actual notice of the
car stop's location on the walkway. However, the judge
did find that the Park District had constructive notice
of the car stop's location. The car stop was conspicuous
because it weighed approximately 100 pounds and took
several men or a forklift to move. Also, based on the
photographs entered into evidence, the judge stated,
"this conspicuous obstacle did exist, and it must have
been there, I found, for enough time for the Park
District to become aware of it." Because the Park
District had constructive notice of the car stop's
improper placement on the walkway, the judge found that
the Park District was not immune from liability under
section 3--102(a).
The judge further found no evidence to support the
Park District's claim that its pregame traffic control
and parking lot setup routine qualified as an inspection
system that would have led to the discovery of the
improperly positioned car stop. Thus, section 3--102(b)
did not provide a defense to the Park District's
constructive notice of the car stop's improper location
on the walkway.
The appellate court affirmed. No. 1--93--3639
(unpublished order under Supreme Court Rule 23). The
appellate court examined the Park District's section 3--
106 defense in light of Bubb v. Springfield School
District 186, 167 Ill. 2d 372 (1995). In Bubb, we
addressed whether a school district is immune from
liability for negligence under section 3--106 when a
student is injured on a sidewalk surrounding a school
when that sidewalk is used for recreation.
Relying on Bubb, the appellate court attempted to
determine whether the location of plaintiff's fall was a
recreational area under section 3--106. The court stated
that the Park District failed to present evidence
regarding the recreational character of the location of
plaintiff's fall. Lacking this evidence, the court
concluded the trial judge was correct to find that
section 3--106 did not provide immunity for the Park
District.
During its appeal to the appellate court, the Park
District, for the first time in its reply brief, asked
the appellate court to take judicial notice of the fact
that plaintiff's fall occurred within Burnham Park. The
court declined to do so. The court stated that even if it
were to take judicial notice of the location of Burnham
Park, the Park District still failed to carry its burden
of establishing a section 3--106 affirmative defense. The
court found that the Park District did not introduce any
evidence that plaintiff's fall occurred in an area
traditionally used for recreational purposes.
The appellate court also reviewed the trial judge's
two section 3--102 findings. Because the car stop was
conspicuous and improperly positioned long enough for the
Park District to become aware of it, the court concluded
that a finding of constructive notice under section 3--
102(a) was not against the manifest weight of the
evidence.
In addition, the appellate court agreed with the
trial judge that there was no evidence to demonstrate
that the Park District operated a reasonably adequate
inspection system. Thus, the trial judge's section 3--
102(b) finding was not against the manifest weight of the
evidence.
DISCUSSION
The Park District asks this court to take judicial
notice of the fact that plaintiff's fall occurred within
Burnham Park. Assuming we take judicial notice of this
fact, the Park District argues that it is automatically
entitled to immunity under section 3--106 because parks
are by definition "property intended or permitted to be
used for recreational purposes." Ill. Rev. Stat. 1989,
ch. 85, par. 3--106. For the reasons that follow, we
decline to take judicial notice of the location of
plaintiff's fall.
Prior to trial, the Park District did not claim in
its motion to dismiss or in its answer to plaintiff's
complaint that plaintiff's fall occurred within Burnham
Park. During trial, the Park District did not claim or
introduce evidence to demonstrate that plaintiff was
injured in a park. In fact, the Park District concedes in
its brief that "no evidence was presented at trial
technically fixing the situs of plaintiff's injury as a
sidewalk located in Burnham Park." Furthermore, the Park
District never asked the trial judge to take judicial
notice of the fact that plaintiff was injured in Burnham
Park.
The Park District in its reply brief in the
appellate court asked that court to take judicial notice
that plaintiff was injured in Burnham Park. The appellate
court declined to do so. The court stated that even if it
were to take judicial notice of the location of
plaintiff's fall, the Park District failed to establish
that plaintiff's fall occurred in an area traditionally
used for recreational purposes.
The Park District has waived its contention that
plaintiff was injured in a park by failing to present
evidence or seek judicial notice of this fact in the
trial court. "[I]t is axiomatic that where evidence was
not offered during the trial of a matter, it cannot be
introduced for the first time on appeal." H.J. Tobler
Trucking Co. v. Industrial Comm'n, 37 Ill. 2d 341, 344
(1967). Also, "[i]t is required that the points argued on
appeal be commensurate with the issues presented at
trial." Kravis v. Smith Marine, Inc., 60 Ill. 2d 141, 147
(1975). Moreover, the Park District's contention that
plaintiff was injured in a park was raised for the first
time in its reply brief in the appellate court. Under
Supreme Court Rule 341(e)(7), points not argued in an
appellant's brief are waived and shall not be raised in
the reply brief. 155 Ill. 2d R. 341(e)(7).
In the alternative, the Park District argues that
plaintiff's fall occurred on "property intended or
permitted to be used for recreational purposes." Ill.
Rev. Stat. 1989, ch. 85, par. 3--106. The evidence shows
that plaintiff's fall occurred on the walkway of a Park
District parking lot serving Soldier Field. The Park
District intended for and permitted football fans to park
in the lots adjacent to Soldier Field and use the
walkways to gain access to the stadium. Plaintiff
possessed a ticket to attend the football game and was
injured while walking to the game. Thus, the Park
District argues that the location of plaintiff's fall was
part of the recreational purpose of Soldier Field. We
agree.
In Bubb, we found that section 3--106 "applies if
public property is intended or permitted to be used for
recreational purposes, regardless of the primary purpose
of the property." Bubb, 167 Ill. 2d at 384. Application
of a section 3--106 defense does not depend only on a
plaintiff's active engagement in a recreational activity
at the time of injury. See J. DeAno, Governmental
Immunities for Recreational Injuries, 82 Ill. B.J. 28,
28-29 (1994).
In addition, section 3--106 may apply to facilities
or structures that increase the usefulness of public
property intended or permitted to be used for
recreational purposes. These facilities or structures
need not be recreational in character for section 3--106
to apply. See S. Puiszis, Illinois Municipal Tort
Liability sec. 4--10, at 183 (1996). 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.
A review of the legislative history supports our
conclusion. Prior to 1986, local public entities were
faced with difficulties affording liability insurance. As
stated by Senator Rock, legislators were "somewhat
appalled that counties and park districts and
municipalities were confronted with the fact that they
were uninsurable or that the insurance that was offered
to them was unaffordable." 84th Ill. Gen. Assem., Senate
Proceedings, June 30, 1986, at 78 (statements of Senator
Rock).
The legislature responded to these difficulties by
enacting Public Act 84--1431 which, among other things,
amended portions of the Tort Immunity Act. In order to
decrease the costs of liability insurance, the
legislature expanded the scope of immunity provided to
local public entities under section 3--106. The
legislature accomplished this expansion of immunity by
abandoning the focus on specific types of public property
and instead focusing on the intended or permitted use of
the property.
Prior to its amendment in 1986, "section 3--106
immunity was specifically limited to parks, playgrounds,
and open areas used for recreational purposes." Bubb, 167 Ill. 2d at 378. Following its amendment, immunity was
expanded by including "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."
Pub. Act 84--1431, art. 1, sec. 2, eff. November 25, 1986
(amending Ill. Rev. Stat. 1985, ch. 85, par. 3--106).
Thus, under section 3--106 as amended, it is the
character of the property as a whole that determines
whether immunity applies. See Bubb, 167 Ill. 2d at 379,
381 (agreeing with the reasoning of courts that examine
"the nature of the property as a whole"). 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.
We note that our conclusion is consistent with the
Seventh Circuit's decision in Diamond v. Springfield
Metropolitan Exposition Auditorium Authority, 44 F.3d 599
(7th Cir. 1995). In Diamond, the plaintiff was on her way
to a career related conference when she was injured in
the doorway of an underground tunnel leading to a
facility used for conventions, shows, and sporting
events.
The court stated that section 3--106 immunity
depends on "the character of the property as a whole,
rather than whether the injured person was engaged in a
nonrecreational activity." Diamond, 44 F.3d at 604.
Because both participants in and spectators of sporting
events are engaged in recreation (see Diamond, 44 F.3d at
603), the court found that the facility was permitted to
be used for recreational purposes (see Diamond, 44 F.3d
at 604-05). Accordingly, the court concluded that
plaintiff's negligence action was barred by section 3--
106.
Our appellate court has reached similar results. In
Annen v. Village of McNabb, 192 Ill. App. 3d 711 (1990),
plaintiff was injured in a restroom located in a park.
Under section 3--106, the appellate court affirmed the
dismissal of plaintiff's negligence claim. The court
stated that "[w]hile a restroom building itself is not
intended to be used for recreational purposes, it allows
a park user to continue using the park ***. This
increases the usefulness of the park and advances the
legislative purpose." Annen, 192 Ill. App. 3d at 713.
In Lewis v. Jasper County Community Unit School
District No. 1, 258 Ill. App. 3d 419 (1994), plaintiff
was injured by falling against a pumphouse located on a
school playground. Relying on section 3--106, the
appellate court affirmed the dismissal of plaintiff's
negligence claims. The court stated that the "immunity
provisions of section 3--106 have been held to apply to
nonrecreational equipment and structures located on
premises used for recreational activities." Lewis, 258
Ill. App. 3d at 423.
Similar results may be found in additional cases.
See, e.g., Conoway v. Hanover Park Park District, 277
Ill. App. 3d 896 (1996) (plaintiff was barred from
recovery when injured by falling into a drainage ditch in
a park); Hanover Insurance Co. v. Board of Education of
the City of Chicago, 240 Ill. App. 3d 173 (1992) (worker
was barred from recovery when injured by slipping on
cracked concrete in a school playground while performing
masonry repairs); Kirnbauer v. Cook County Forest
Preserve District, 215 Ill. App. 3d 1013 (1991)
(plaintiff was barred from recovery when injured by a
cable barricade restricting entry to a forest preserve
access road).
Because we find that the Park District is not liable
in actions for negligence in the circumstances presented
here, we do not address the Park District's additional
immunity arguments regarding constructive notice under
section 3--102 nor do we address the Park District's
argument that parks are automatically entitled to
immunity under section 3--106.
We must still dispose of plaintiff's pending motion
seeking leave to file a first amended complaint under
Supreme Court Rule 362. 155 Ill. 2d R. 362. The purpose
of Rule 362 is to amend the pleadings to conform to the
evidence presented at trial. A movant "must show the
amendment to be necessary, that no prejudice will result
to the adverse party if the amendment sought is
permitted, and that the issues sought to be raised by the
amendment are supported by the facts in the record on
appeal." 155 Ill. R. 362(b). "Rule 362 is not a vehicle
to raise wholly new issues on appeal." Local 165 v.
Bradley, 149 Ill. App. 3d 193, 213 (1986).
In plaintiff's motion, she seeks leave to add a
second count to her complaint alleging that the Park
District engaged in willful and wanton misconduct. The
trial had proceeded only on a theory of negligence. In
fact, plaintiff's attorney stated to the trial court:
"First of all, I would just like to state again for the
record this case is based upon [a] theory of negligence,
and it is not incumbent upon my client in this action to
prove any willful and wanton conduct on the part of the
Park District."
In Griffin v. Darda, 28 Ill. App. 3d 693 (1975),
plaintiff was a passenger in an automobile that collided
with another vehicle. Plaintiff filed suit against the
driver of the automobile in which she was riding.
Plaintiff alleged the driver was guilty of willful and
wanton misconduct. Following a bench trial, judgment was
entered in the driver's favor. On appeal, plaintiff
sought to amend her complaint to add a count alleging
negligence against the driver. After citing Rule 362, the
appellate court stated that the trial below had:
"proceeded on the theory that when
[plaintiff] was injured, [the driver] was
guilty of willful and wanton misconduct.
Witnesses were called, cross-examination was
conducted, and evidence was presented in
accordance with this theory. There is no fact
in the record to support the notion that
negligence was a theory of the case." Griffin,
28 Ill. App. 3d at 696-97.
The appellate court denied plaintiff's motion seeking
leave to file an amended complaint.
In this case, plaintiff proceeded on a theory of
negligence and specifically stressed that point in the
trial court. There are no facts in the record which
indicate that a theory of willful and wanton misconduct
on the part of the Park District was a theory at trial.
Like the Park District's request that we take judicial
notice of the parking lot's location within Burnham Park
to which the plaintiff objected, plaintiff's attempt to
amend her complaint comes too late. Plaintiff's motion
seeking leave to file a first amended complaint is
denied.
CONCLUSION
For the foregoing reasons, we find that the Park
District is entitled to immunity under section 3--106 of
the Tort Immunity Act. Accordingly, we reverse the
judgments of the appellate and trial courts. In addition,
we deny plaintiff's motion seeking leave to file a first
amended complaint.
Judgments reversed.
CHIEF JUSTICE FREEMAN, specially concurring:
My colleagues hold that plaintiff's fall occurred on
"property intended or permitted to be used for
recreational purposes" as provided in 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). Therefore, they find that the Park
District is not liable for injuries which the plaintiff
sustained. I concur with the majority's conclusion that
the property on which plaintiff fell is intended or
permitted to be used for recreational purposes. However,
I believe that the majority's application of the
increased usefulness test will provide broader immunity
than the legislature intended.
Specifically, the majority asserts that the Park
District intended for and permitted football fans to park
in the lots adjacent to Soldier Field and use the
walkways to gain access to the stadium. Because plaintiff
possessed a ticket to attend the football game and was
injured while walking to the game, the majority concludes
that the location of plaintiff's fall was part of the
recreational purpose of Soldier Field.
The majority bases its reasoning on appellate court
cases which have held that, taken as a whole, a facility
or structure will be considered to fall within the scope
of section 3--106 if it increases the usefulness of
public property intended or permitted to be used for
recreational purposes. See Conoway v. Hanover Park Park
District, 277 Ill. App. 3d 896, 900 (1996); Kirnbauer v.
Cook County Forest Preserve District, 215 Ill. App. 3d
1013, 1022-23 (1991). This test was first espoused in
Annen v. Village of McNabb, 192 Ill. App. 3d 711 (1990).
In Annen, the plaintiff was using a restroom located
within a park when a sink fell from a wall, seriously
injuring her. The court found that the purpose of section
3--106 manifested an intent to include restroom
facilities within a park as part of the park itself. The
court stated:
"A restroom facility located within a
park is a part of the park. While a restroom
building itself is not intended to be used for
recreational purposes, it allows a park user
to continue using the park without having to
leave the park to use restroom facilities.
This increases the usefulness of the park and
advances the legislative purpose." Annen, 192
Ill. App. 3d at 713.
The majority in the instant case adopts the reasoning in
Annen and concludes that, "[a]lthough 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." Slip op. at 7.
Although the increased usefulness test provides a
fairly straightforward means to determine whether certain
property is subject to section 3--106 immunity, I do not
believe that the test should be so mechanically applied
such that any consideration of the injured party's use of
the property is ignored. In fact, we considered limiting
the scope of the "increased usefulness" test in Bubb,
where we stated:
"Providing immunity to any public property
where recreation might occur would eviscerate
the duty codified in section 3--102. *** [A]t
some point, the use of public property for
recreation may be so incidental that section
3--106 does not apply." Bubb v. Springfield
School District 186, 167 Ill. 2d 372, 382
(1995).
I believe that this case is one in which plaintiff's
use of the property was so incidental that section 3--106
should not apply. The record reveals that the plaintiff
parked her car in the McCormick Place parking lot,
approximately one mile from Soldier Field. However, the
injury occurred as she was crossing the south parking
lot, which is located across the street from Soldier
Field. The parking lot where plaintiff was injured does
increase the usefulness of Soldier Field; the lot
provides convenient parking for the public. However,
plaintiff's actual use of the property was incidental, as
she was merely walking across the lot to reach Soldier
Field. It is only happenstance that the lot is available
to increase the use of Soldier Field. Plaintiff's
presence on the lot had nothing to do with the lot's
availability for parking. Plaintiff merely chose the lot
as the path by which she could access Soldier Field. Had
plaintiff chosen a different path to access Soldier
Field, that property, simply because it provided
convenient access, would not merit section 3--106
immunity.
I do not believe that the legislature intended to
expand the scope of section 3--106 to provide immunity to
governmental units for use that is merely incidental to
the purpose of the property. For all practical purposes,
unless the increased usefulness test is limited in its
application and scope, the duty of a governmental unit to
exercise even ordinary care will be diminished.
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 make
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.
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