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10/19/95 MARTHA BUBB v. SPRINGFIELD SCHOOL DISTRICT

October 19, 1995

MARTHA BUBB, INDIV. AND AS MOTHER AND NATURAL GUARDIAN OF AMY PAVOLKO, APPELLEE,
v.
SPRINGFIELD SCHOOL DISTRICT 186 ET AL. (SPRINGFIELD SCHOOL DISTRICT 186, APPELLANT).



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Sangamon County, the Hon. Stuart Shiffman, Judge, presiding.

The Honorable Justice Nickels delivered the opinion of the court:

The opinion of the court was delivered by: Nickels

JUSTICE NICKELS delivered the opinion of the court:

The issue presented here is whether a school district is immune from negligence when a student is injured on a school sidewalk that is used for recreation. On September 14, 1990, Amy Pavolko suffered injuries while riding her bike on school property. Subsequently, her mother filed suit in the circuit court of Sangamon County against the defendant school district, individually and on the child's behalf, alleging that defendant was negligent for failing to maintain the school sidewalk in a safe condition. Defendant filed a motion for summary judgment 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). The circuit court denied the motion but certified two questions for interlocutory appeal (134 Ill. 2d R. 308). The appellate court affirmed, also denying summary judgment. Defendant's petition for leave to appeal was allowed (145 Ill. 2d R. 315).

BACKGROUND

Amy was injured when she fell from her bicycle while leaving the Enos elementary school in Springfield, where she was a student. A wide concrete sidewalk surrounds the school building, and Amy was injured when she rode her bicycle off the edge of this sidewalk and onto a grass playground. According to the complaint, the edge of the sidewalk is at least four inches higher than the surrounding grassy area. This height difference allegedly caused Amy to fall and injure herself.

Defendant filed a motion for summary judgment based on section 3-106. The statute provides defendant with immunity from negligence in certain circumstances. Specifically, 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." (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 85, par. 3-106.)

Plaintiff alleges only ordinary negligence, not willful and wanton conduct. Accordingly, if the statute applies, plaintiff cannot maintain this action.

The record contains photos of the area where the injury occurred. These photos show that yellow lines were painted on the sidewalk near the area where Amy was injured. School children could use these yellow lines to play a game known as four-square. The concrete area adjoins a grass area and an asphalt area that are both used by the school children as a playground.

In support of summary judgment, defendant submitted Amy's deposition. In her deposition, Amy stated that she and other school children often played in the area where the injury occurred. Amy stated that she played in that area "most of the time." In fact, she would "usually [play] on the concrete," rather than the grass playground. According to Amy, teachers supervised recess and allowed the children to play four-square in this area. Amy also stated that the concrete area on the side of the school where she was injured contained three other four-square areas in addition to the one located a few feet from the site of her injury.

Laine Tadlock, principal of the Enos elementary school, submitted an affidavit in support of defendant's summary judgment motion. She stated that the area where the injury occurred was "public property intended or permitted for use by our school children as a playground and as an area for use by our school children for recreational purposes." She also stated that "school children have played four-square and other games and activities in that area."

In response, plaintiff submitted the deposition of the head maintenance worker at the school, Danny Hicks. Hicks stated that the concrete surrounding the school had not been installed to serve specifically as a playground. Hicks personally never saw any children play four-square in the area, but he stated that the four-square lines had been ...


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