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11/30/88 Djuan T. Davis, A Minor By v. Chicago Housing Authority

November 30, 1988

DJUAN T. DAVIS, A MINOR BY HIS MOTHER AND NEXT FRIEND, MARSHA DAVIS, PLAINTIFF-APPELLEE

v.

CHICAGO HOUSING AUTHORITY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

531 N.E.2d 1018, 176 Ill. App. 3d 976, 126 Ill. Dec. 391 1988.IL.1721

Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. WHITE, P.J., and RIZZI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Defendant, the Chicago Housing Authority, a municipal corporation, prosecutes this interlocutory appeal under Supreme Court Rule 308(a) (107 Ill. 2d R. 308(a)) of the circuit court of Cook County's order vacating the dismissal of the second-amended complaint of the plaintiff, Djuan T. Davis, a minor, by his mother and next friend, Marsha Davis, and granting plaintiff leave to file a third-amended complaint. The question certified to this court is: "Whether paragraph 3 -- 106 of the Illinois Tort Immunity Act applies to the Chicago Housing Authority, a municipal corporation."

Count I of plaintiff's second-amended complaint alleged that he sustained personal injuries as a result of defendant's negligence in the "ownership, operation, management, maintenance and control" of "an area at or near 2730 S. State Street, . . . which area . . . was provided by [defendant] for private use by the tenants, residents, and their guests of its building at the said address and which was utilized [thereby] as a playground." Count II repeated the factual allegations in count I and further alleged that plaintiff's injuries resulted from defendant's willful and wanton conduct.

Defendant filed a motion to dismiss the second-amended complaint under section 2-615 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-615). Defendant asserted that the complaint inadequately alleged the actual or constructive notice to defendant of the unsafe condition of its property allegedly causing plaintiff's injuries, as required under section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, par. 3-102(a)). Defendant further asserted that the failure of count I of the complaint to allege willful and wanton conduct and of count II to allege facts supporting its allegation of such conduct required dismissal of the complaint pursuant to section 3-106 of the Tort Immunity Act. Section 3-106 provides that local public entities and employees are not liable for injuries "where liability is based on the existence of a condition of any public property intended or permitted to be used as a park, playground, or open area for recreational purposes" unless the entity or employee "is guilty of willful and wanton negligence proximately causing such injury." Ill. Rev. Stat. 1985, ch. 85, par. 3-106.

The trial court dismissed the second-amended complaint on the ground that it did not comply with section 3 -- 102(a). The court further held section 3 -- 106 inapplicable to the complaint. The court reasoned that section 3 -- 106 dealt with parks or playgrounds open to the general public while the plaintiff alleged that the playground provided by defendant was for the private use of its tenants, residents and their guests. The court considered that a well-pleaded allegation had to be taken as true for purposes of the motion to dismiss. The trial court subsequently granted plaintiff's motion to vacate the dismissal of the second-amended complaint and for leave to file a third-amended complaint. The trial court ruled that the latter complaint's allegations of notice were sufficient to satisfy the constructive notice requirement of section 3 -- 102(a). The court also reiterated its belief that section 3 -- 106 was inapplicable for the reasons it had previously given.

On appeal, defendant contends that section 3 -- 106 of the Tort Immunity Act applies to any property owned by a local public entity which is used as a playground. Specifically, it contends the trial court erred in construing that provision as requiring that a "park, playground, or open area for recreational purposes" provided by a local public entity be open to the general public before such entity may avail itself thereof.

In deciding the certified question, we are called upon to construe the Tort Immunity Act generally and section 3 -- 106 thereof specifically. The rules governing our inquiry include:

"[The] primary rule of statutory construction is to ascertain and effectuate the legislature's intent. In doing so a court looks first to the statutory language itself. If the language is clear, the court must give it effect and should not look to extrinsic aids for construction." (In re Marriage of Logston (1984), 103 Ill. 2d 266, 277, 469 N.E.2d 167.)

Moreover, the legislature has the power to define the terms used in a statute in any reasonable manner and such definitions must be sustained to the exclusion of non-statutory alternatives (Commonwealth Edison Co. v. Property Tax Appeal Board (1984), 102 Ill. 2d 443, 457, 468 N.E.2d 948) or hypothetical indulgences (Ballantine v. Bardwell (1985), 132 Ill. App. 3d 1033, 1038, 478 N.E.2d 500). Finally, as the Tort Immunity Act is in derogation of the common law, it must be strictly construed against local public entities. Reynolds v. City of Tuscola (1971), 48 Ill. 2d 339, 342, 270 N.E.2d 415.

Applying these rules here, we conclude that the Tort Immunity Act applies generally to defendant and that section 3 -- 106 specifically applies to the playground provided by defendant on which plaintiff was injured. We ...


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