Appeal from the Circuit Court of Jackson County. No. 92-L-189. Honorable William G. Schwartz, Judge, presiding.
The Honorable Justice Welch delivered the opinion of the court: Maag, P.j., and Goldenhersh, J., concur.
The opinion of the court was delivered by: Welch
JUSTICE WELCH delivered the opinion of the court:
Plaintiff, Lynn Goodwin, was injured when the bicycle he was riding collided with a tree that had fallen across the Greenway Bikepath, a paved bike path winding through a city park; the path is controlled and maintained by the defendant, Carbondale Park District. Plaintiff filed a two-count complaint against the Park District: count I sounded in ordinary negligence, and count II contained the same allegations but sounded in willful and wanton negligence. On the motion of defendant, the circuit court of Jackson County dismissed both counts of the complaint, finding that defendant was immune from liability under sections 3-106 and 3-107(b) of the Local Governmental and Governmental Employees Tort Immunity Act. (745 ILCS 10/3-106, 3-107(b) (West 1992).) Plaintiff appeals.
As revealed in the record, the property on which the Greenway Bikepath is located is owned by the City of Carbondale and leased by the city to the Carbondale Park District. The property has been designated by the city to be used "exclusively for playgrounds, recreational, open space, non-autoways, and public park purposes." The lease between the city and the park district provides that the property is to be used "solely for the purposes of public parks, playgrounds, recreation, open space, picnic areas, and non-autoways." Under the lease, the city agrees to "construct non-autoways for the use of pedestrians, bicycles and wheelchairs on the property". These nonautoways are to be maintained by the Park District.
Section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act ("Act") provides for immunity,
"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." (745 ILCS 10/3-106 (West 1992).)
Thus, section 3-106 provides immunity only for ordinary negligence and not for willful and wanton misconduct.
Section 3-107(b) of the Act, on the other hand, provides immunity for both ordinary negligence and willful and wanton misconduct,
"for an injury caused by a condition of *** (b) Any hiking, riding, fishing or hunting trail." 745 ILCS 1-/3-107(b) (West 1992).
Based upon our construction of these sections of the Act, we affirm the trial court's dismissal of count I, sounding in ordinary negligence, because the property on which plaintiff was injured was "intended or permitted to be used for recreational purposes". We reverse the trial court's dismissal of count II, sounding in willful and wanton misconduct, because we find that the trial court erred as a matter of law in construing the phrase "riding trail" in section 3-107(b) of the Act to include the paved bike path on which plaintiff was injured.
With respect to count I, plaintiff argues that defendant failed to prove that the property on which plaintiff was injured fell within the purview of section 3-106, that is, that it was property intended or permitted to be used for recreational purposes. We cannot agree. The only evidence before the trial court supports its finding that the bike path was intended or permitted to be used for recreational purposes. The bike path was located within a city park, and the property was dedicated to recreational purposes and, according to the lease, was to be used solely for recreational purposes. Plaintiff submitted no evidence to the contrary, and his complaint alleges no differently.
In a rather convoluted argument, plaintiff asserts that the bikepath was a "non-autoway" and as such was a "public way" within the meaning of section 3-105 of the Act (745 ILCS 10/3-105 (West 1992)), rather than property intended or permitted to be used for recreational purposes within the meaning of section 3-106 of the Act. Section 3-105 provides for immunity for an injury caused by the effect of weather conditions as such on the use of public ways, but not for physical damage to or deterioration of those public ways resulting from weather conditions. (745 ILCS 10/3-105 (West 1992).) Plaintiff argues that his injury was caused by physical damage or deterioration of the bike path resulting from weather conditions and the Park District therefore is not immune under section 3-105. However, plaintiff's complaint contains no allegations that his injury was related in any way to weather conditions, nor is there any such evidence in the record. Section 3-105 has no application to the instant case.
In any event, even if the bike path, as a nonautoway, does constitute a public way, it was also property intended or permitted to be used for recreational purposes and section 3-106 provides immunity for ordinary negligence. Accordingly, the trial ...