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12/22/95 LUIS CORRAL v. CHICAGO PARK DISTRICT

December 22, 1995

LUIS CORRAL, AS FATHER AND NEXT FRIEND OF DANIEL CORRAL, A MINOR, PLAINTIFF-APPELLANT,
v.
CHICAGO PARK DISTRICT, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Sidney Jones, Judge Presiding.

The Honorable Justice Rakowski delivered the opinion of the court: Egan and Zwick, JJ., concur.

The opinion of the court was delivered by: Rakowski

The Honorable Justice RAKOWSKI delivered the opinion of the court:

While visiting Lincoln Park Zoo (Zoo) with his classmates, Daniel Corral tripped on a cobblestone sidewalk and was injured. The Zoo is located in Lincoln Park and is operated by the defendant, Chicago Park District. Plaintiff filed a two-count complaint (negligence and wilful conduct) against the defendant. The trial court granted defendant's motion to dismiss the negligence count pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)), holding that the Chicago Park District was immune from suit in simple negligence. Following a trial, judgment was entered in favor of defendant on the wilful conduct count.

Plaintiff's appeal only addresses the dismissal of the negligence count and frames the issue as whether the Chicago Park District, as operator of the Lincoln Park Zoo, is immune from suit in simple negligence for injuries occurring on the Zoo's property. For the following reasons, we affirm.

Section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) 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." (745 ILCS 10/3-106 (West 1992).)

Section 1-206 of the Tort Immunity Act provides:

"'Local public entity' includes a county, township, municipality, municipal corporation, school district, school board, educational service region, regional board of school trustees, community college district, community college board, forest preserve district, park district, fire protection district, sanitary district, museum district, and all other local governmental bodies. 'Local public entity' also includes library systems and any intergovernmental agency or similar entity formed pursuant to the Constitution of the State of Illinois or the Intergovernmental Cooperation Act as well as any not-for-profit corporation organized for the purpose of conducting public business. It does not include the State or any office, officer, department, division, bureau, board, commission, university or similar agency of the State." 745 ILCS 10/1-206 (West 1992).

Plaintiff first contends that the Tort Immunity Act does not apply to the Zoo because it is not a recreational facility within the meaning of the statute. According to plaintiff, the Tort Immunity Act applies only to "open areas" used for "sportive activities." Plaintiff also notes that a zoo is not included in the definition of "local public entity." For the reasons which follow, we find plaintiff's contention to be without merit.

Plaintiff tripped and fell while walking on a sidewalk adjacent to the outdoor seal exhibit. It is of no import whether this area can be characterized as an open area. The express language of section 3-106 includes: "parks, playgrounds, open areas, buildings or other enclosed recreational facilities. " (Emphasis added.) (745 ILCS 10/3-106.) Although the Zoo is a separate section of Lincoln Park, the Zoo nonetheless is located entirely within Lincoln Park and is operated by the Chicago Park District. As a result, plaintiff's contention is belied by the unambiguous language of section 3-106 and section 1-206 of the Tort Immunity Act.

In support of his argument that the Tort Immunity Act applies only to sportive activities, plaintiff cites John v. City of Macomb (1992), 232 Ill. App. 3d 877, 596 N.E.2d 1254, 173 Ill. Dec. 375, which in part states:

"In our opinion, the legislative intent of the Act is to immunize governmental entities from liability for simple negligence in areas where public activities of a sportive nature, as opposed to stage entertainment, are permitted." John, 232 Ill. App. 3d at 880.

First we note that no citation to authority is given in support of the aforementioned quote. Nor is there any language in the statute which would support such a statement. The unambiguous language of the Tort Immunity Act grants immunity where the property is used for recreational purposes. We find no language which would ...


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