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List v. O'connor

MAY 6, 1959.

CHARLES H. LIST, ADMINISTRATOR OF THE ESTATE OF BARBARA LIST, DECEASED, PLAINTIFF-APPELLANT,

v.

DAN O'CONNOR, ROCKFORD MOTORCYCLE CLUB, DON C. BUTTERFIELD, DEFENDANTS, AND EARL F. ELLIOTT AND ROCKFORD PARK DISTRICT, A MUNICIPAL CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Winnebago county; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding. Affirmed.

PRESIDING JUSTICE WRIGHT DELIVERED THE OPINION OF THE COURT.

Plaintiff, Charles H. List, as administrator of the estate of Barbara List, deceased, commenced this action in the Circuit Court of Winnebago County, to recover damages for the wrongful death of Barbara List.

The amended complaint filed herein by the plaintiff as to these defendants consists of four counts, numbered VII, VIII, IX, and X.

Count VII alleges in substance that the defendant, Rockford Park District, a voluntarily organized municipal corporation, by and through defendant, Earl F. Elliott, its agent and servant, acting in a governmental capacity, authorized the Rockford Motorcycle Club, Inc., a corporation, or Don C. Butterfield, or both, to hold motorcycle races on the frozen surface of Levings Lake, which is owned and operated by said Park District; that the defendants negligently authorized and permitted said races to be run on said lake without giving any warning; without erecting barriers; without requiring any safety devices to stop an uncontrolled motorcycle, or without requiring or taking any measures for the safety of others lawfully occupying and using said lake; that the defendants knew or should have known the inherently dangerous conditions arising from and the foreseeable consequences in permitting said races to be run on said lake; that a motorcycle being operated in one of the races went out of control and left the racing area and ran into the decedent, who was lawfully skating on said lake and who was in the exercise of due care for her own safety, and that as a direct and proximate result of the negligent acts of the defendants and the collision aforesaid, the decedent sustained injuries from which she died.

The allegations of count VIII are substantially the same as those in count VII, except it is alleged in count VIII that the defendants were guilty of wilful and wanton misconduct in permitting said races to be held on said lake without giving warning; without erecting barriers; without requiring any safety devices to stop an uncontrolled motorcycle or without requiring or taking any measures for the safety of others lawfully occupying said lake, and further alleges that the deceased was not guilty of any wilful and wanton misconduct contributing to her injury and death.

Counts IX and X contain in substance the same allegations as counts VII and VIII respectively, except in these counts it is alleged that the defendants were acting in a ministerial or proprietary capacity in authorizing the motorcycle races to be held.

On motion of the defendants, the trial court struck and dismissed all four counts of the amended complaint and entered judgment dismissing all of said counts at plaintiff's cost and that plaintiff take nothing by his suit and that the defendants go hence without day. From this judgment, plaintiff appeals.

The first question to be determined in passing on this appeal is whether or not the Rockford Park District, by and through its agent and servant, was acting in a governmental or in a ministerial or proprietary capacity in permitting the motorcycle races to be run on the frozen surface of Levings Lake. While the courts of last resort in this country are not in accord in their opinion on this question, we believe that the weight of authority is to the effect that the maintenance and operation of parks, playgrounds, swimming pools, and the like by a municipal corporation are governmental functions undertaken by the municipal corporation strictly for the public benefit as distinguished from a corporate benefit. In a well considered opinion, our Supreme Court in Gebhardt v. Village of LaGrange Park, 354 Ill. 234, held that the operation of a swimming pool by a municipal corporation is a governmental function. On page 236 of the opinion, the court said:

"This brings us to the question, then, whether the maintenance of a swimming pool is a governmental or proprietary function. If it be the former, the doctrine of respondeat superior has no application and the village may not be held liable for damages arising out of the negligence of its servants in the discharge of that function. This rule is generally accepted. (Roumbos v. City of Chicago, 332 Ill. 70, and cases there cited.) Indeed, counsel for defendant in error do not contend otherwise. If the function is a corporate or proprietary one, as it is sometimes called, the doctrine of respondeat superior does apply, and the municipality is liable for damages arising out the negligence of its servants in the discharge of that function."

On pages 238 and 239 of the opinion, the court said:

"If the duty involves a general public benefit not in the nature of a corporate or business undertaking for the corporate benefit and interest of the municipality, the function is governmental whether the duty be directly imposed upon the city or is permissive — that is, one voluntarily assumed. A bathing beach or swimming pool is maintained under powers granted to the city or village and as an instrument for the general public health, recreation and exercise. It is not imposed on the municipality but is optional with it. That fact alone, however, may not be said to determine whether in maintaining such swimming pool the municipality acts in a governmental or proprietary capacity. The nature and effect of the function discharged must be examined to determine that question. (Bisbing v. Asbury Park, supra.) Such function in nowise partakes of the nature of a corporate business or undertaking for profit but is by its nature a public benefit. The municipal purpose in providing such means of recreation and health differs widely from that found in conducting a business enterprise for private gain."

In the case of Love v. Glencoe Park District, 270 Ill. App. 117, the Appellate Court of the First District had occasion to consider the question here involved. In that case a suit was instituted, Love as administrator, against Glencoe Park District, for damages resulting from the death of the deceased by drowning because of alleged negligence on the part of the defendant through its maintenance and operation of a bathing beach. On page 120 of the opinion, the court said:

"The park district created under the act already referred to exercises functions governmental in their character inasmuch as they are exercised for the benefit of the general public. There is some conflict in the decisions but we are of the opinion that the general rule is in conformity with that expressed by the courts of this State. The great weight of authority appears to hold that the members of the park board, said board having been created as it was for the use of the general public, are not liable individually, nor is the park district. (Cases cited.)

"The fact that the public was required to pay a certain fee or charge in order to avail itself of the use and privilege of the park does not change the character of the park district as a governmental agency. Carstens v. City of Wood River, 344 Ill. 319. So long as the fee is reasonable, it may be charged lawfully in order to provide and ...


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