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October 29, 1959


The opinion of the court was delivered by: Poos, District Judge.

The defendant moves to dismiss the action on two grounds, viz.:

(1) Because the complaint fails to state a claim against the defendant upon which relief can be granted, and

(2) Because the defendant is a municipal corporation and is therefore immune to the purported cause of action.

The defendant municipal corporation is organized and created under "The Park District Code" of Illinois. The Act creating this district became effective July 8, 1947, as amended by Act approved May 17, 1951. Ill.Rev.Stat., Ch. 105, Secs. 1-1 to 12.1-1. The Supreme Court of Illinois has held the Act constitutional. People ex rel. Honefenger v. Burris, 408 Ill. 68, 95 N.E.2d 882; People ex rel. A.C. Ammann v. Wabash Railroad Company, 391 Ill. 200, 62 N.E.2d 819.

Section 8-1 of the Act provides for the General Corporate Powers and Section 8-4 provides as follows:

    "All park districts shall retain and be vested
  with all power and authority contained in * * *
  `An Act authorizing park commissioners to acquire
  or provide sites for armories for the National
  Guard and to acquire or establish and to maintain
  landing fields for aircraft'."

This Section gives Park Districts the power to acquire lands for the establishment and maintenance of landing fields, and Section 9-2, Ch. 105, Ill.Rev.Stat. spells out the authority in the following language:

    "9-2. Every park district is authorized to
  acquire by purchase or condemnation under power
  of eminent domain, or lease, real estate, in
  whole or in part, either within or without the
  corporate limits of said park district for the
  purpose of establishing for said district an
  airport and landing field for aircraft, and to
  provide hangars, shops, and other necessary
  equipment and appurtenances therefor usually
  incident to the operation of an airport, and to
  maintain and operate the same."

Sections 9-2a and 9-2b provide for taxation, and the issuance of bonds to provide funds for the purposes aforesaid.

A careful reading of the Park Code discloses that it was the intent of the General Assembly of Illinois that a park district was to be a governmental body in the exercise of all its functions, and that the purpose of the General Assembly to place governmental power in park districts was to create the right to acquire and operate, among other things, an airport.

The question presented by the motion to dismiss is whether or not this defendant, a governmental body, is liable for negligence of its employees under the doctrine of respondeat superior for the loss by fire of the aircraft in question. The plaintiffs seek to avoid this on their theory that the action sounds in contract. To quote the plaintiffs, they say that this is not an "action in tort for negligence", but is an action for breach of contract. The plaintiffs do not and cannot deny that their complaint alleges "that in violation of said agreement and without fault on the part of the plaintiffs, the defendant wholly neglected and omitted to properly store and preserve said aircraft, but negligently placed it in a place where it was destroyed by fire". In so doing the plaintiffs seek to equate "tort" and "negligence" even though the former is a much broader term than the latter. Whether or not the action is labeled "tort" or "contract", it is still based on negligence, and park districts such as created by the Park Code are immune from liability for negligence.

The Courts of Illinois and other states have specifically rejected attempts to circumvent the doctrine of immunity by altering the form of action so as to make it sound in contract, when in fact the only basis for holding the one enjoying immunity responsible is the negligent act or acts of its employees. This is true in charitable trusts as well as municipal corporations in the exercise of governmental functions. This immunity was written into the law of Illinois long prior to the passage of the Park Code.

In Wattman v. St. Luke's Hospital Association, 314 Ill. App. 244, 41 N.E.2d 314, an action was brought against a hospital which at the time enjoyed charitable immunity. The complaint consisted of two counts. One was for wrongful death. The other was based upon a violation of an alleged contractual relationship whereby the hospital impliedly promised not to injure the plaintiff through negligent acts of its employees. The first count was dismissed as sounding purely in tort, being therefore barred by the doctrine of charitable immunity as announced in Parks v. Northwestern University, 218 Ill. 381, 75 N.E. 991, 2 L.R.A.,N.S., 556. The ...

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