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11/08/96 OSCAR BROWN v. COOK COUNTY FOREST PRESERVE

November 8, 1996

OSCAR BROWN, PLAINTIFF-APPELLANT,
v.
COOK COUNTY FOREST PRESERVE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Kathy Flanagan, Judge Presiding.

Released for Publication December 22, 1996.

Presiding Justice Zwick delivered the opinion of the court. Rakowski, J., and Leavitt, J., concur.

The opinion of the court was delivered by: Zwick

PRESIDING JUSTICE ZWICK delivered the opinion of the court:

This is an appeal from a grant of summary judgment (735 ILCS 5/2-1005 (West 1994)) in favor of the defendant, Cook County Forest Preserve ("Forest Preserve") and against the plaintiff, Oscar Brown. Brown allegedly sustained injuries on June 20, 1986, after falling from his bicycle while riding on a bicycle path in Saulk Trail Woods Forest Preserve. The Forest Preserve is a municipal corporation which is a division of Cook County.

In his two-count complaint, Brown alleged that his head hit a guardrail after the front wheel of his bicycle slid out from under him as he descended an incline on the bicycle path. He claimed that his injuries were caused, in part, by the curvature and slope of the path which the Forest Preserve wilfully and wantonly designed and maintained. Brown also alleged wilful and wanton conduct in the Forest Preserve's placement of the path alongside a steel guardrail which served as a barrier to vehicular traffic using 26th Street, a highway which runs alongside the path at the place where Brown fell.

The trial court entered summary judgment in favor of the Forest Preserve, noting the absolute immunity provided by section 3-107(a) and section 3-107(b) of the Local Governmental and Governmental Employees Tort Immunity Act (the "Act"). 745 ILCS 10/1--101 et seq. (West 1994). Brown raises the single issue of whether the Forest Preserve has immunity from this suit under section 3-107.

The law with regard to summary judgment is well settled. A motion for summary judgment is properly granted by the trial court when "the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005 (West 1994). In ruling on a motion for summary judgment, the trial court must construe the pleadings, depositions and affidavits in the light most favorable to the non-moving party. First State Insurance Co. v. Montgomery Ward & Co., 267 Ill. App. 3d 851, 642 N.E.2d 715, 204 Ill. Dec. 814 (1994); Stephen v. Swiatkowski, 263 Ill. App. 3d 694, 635 N.E.2d 997, 200 Ill. Dec. 658, (1994). If fair-minded persons could draw different inferences from the undisputed facts, summary judgment should not be granted. See Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 607 N.E.2d 1204, 180 Ill. Dec. 691 (1992); Anglin v. Oros, 257 Ill. App. 3d 213, 628 N.E.2d 873, 195 Ill. Dec. 409 (1993). Review of a grant of summary judgment is de novo. Golla v. General Motors Corp., 261 Ill. App. 3d 143, 147, 633 N.E.2d 193, 198 Ill. Dec. 731 (1994).

The Forest Preserve and Brown filed conflicting affidavits as to several relevant facts. It is clear, however, that the path on which Brown fell circled Saulk Lake, was designed for use by bicyclists, and was paved. The land surrounding the path was generally wooded, and otherwise undeveloped.

Section 3-107 of the Act relieves a public entity from liability for injuries caused by the condition of access roads and trails that are not streets or highways. This sections provides:

"Neither a local public entity nor a public employee is liable for an injury caused by a condition of: (a) any road which provides access to fishing, hunting or primitive camping, recreational, or scenic areas and which is not a (1) city, town or village street, (2) county, state or federal highway, or (3) a township or other road district highway. (b) Any hiking, riding, fishing or hunting trail."

Thus, if either section 3-107(a) or 3-107(b) properly applies to the present dispute, the Forest Preserve cannot be liable and the trial court's award of summary judgment in favor of the Forest Preserve must be affirmed.

We decline to address the various arguments made by Brown with regard to the applicability of section 3-107(a) of the Act as, in our view, section 3-107(b) provides clear tort immunity to the Forest Preserve.

The cardinal rule of statutory construction is to give effect to the legislative intent of the enactment. Rushton v. O'Malley, 89 Ill. App. 3d 103, 104, 411 N.E.2d 528, 44 Ill. Dec. 406 (1980). The language of the statute generally provides the best evidence of the legislature's intent. Board of Education of Rockford School District No. 205 v. Illinois Education Labor Relations Board, 165 Ill. 2d 80, 649 N.E.2d 369, 208 Ill. Dec. 313 (1995). Where the statutory language is clear and unambiguous, the plain and ordinary meaning of the words will be given effect ...


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