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June 30, 1997


Appeal from the Circuit Court of Cook County. Honorable Patrick E. McGann, Judge Presiding.

Released for Publication August 5, 1997.

The Honorable Justice McNULTY delivered the opinion of the court. DiVITO, P.j., and Tully, J., concur.

The opinion of the court was delivered by: Mcnulty

JUSTICE McNULTY delivered the opinion of the court.

Plaintiff Cindy Baggio brought suit against defendant, the Chicago Park District (the Park District), and her husband, Michael Baggio, to recover damages for injuries she sustained on a stardock located in Diversey Harbor. This appeal concerns only plaintiff's claims against the Park District. Plaintiff claimed in count I of her complaint that the Park District negligently constructed and maintained the stardock and in count II that the Park District willfully and wantonly constructed and maintained the stardock. The trial court granted summary judgment in favor of the Park District on count I of plaintiff's complaint. Plaintiff appeals and we affirm.

Plaintiff claimed in her complaint that on July 3, 1990, she was assisting her husband as he attempted to back his powerboat out of his mooring on stardock X at Diversey Harbor. Plaintiff placed her hand and arm between the stardock and the edge of the boat, resulting in injury to her hand and arm.

Plaintiff claimed that the Park District was negligent in failing to equip the stardock with uprights or cushions, which would have assisted in boat handling and would have eliminated the need to place hands, or other body parts, between the docks and heavy vessels. Plaintiff asserted that section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-106 (West 1992)) did not apply to her negligence claim because the Park District, in charging a user fee for the harbor, was not exercising governmental power but, rather was exercising its proprietary power.

The Park District filed a motion for summary judgment arguing that it had no duty to refrain from negligence, since section 3-106 of the Tort Immunity Act granted it recreational property immunity and because the operation of the harbor is not a proprietary activity. The trial court initially denied the Park District's summary judgment motion. The Park District then brought a motion to reconsider, and the court reversed its ruling, reasoning that because the property was recreational, section 3-106 of the Tort Immunity Act immunized the Park District from a negligence action. It is from this order that plaintiff appeals.

In In re Chicago Flood Litigation, 176 Ill. 2d 179, 223 Ill. Dec. 532, 680 N.E.2d 265 (1997), the Illinois Supreme Court recently determined that the governmental/proprietary function does not preclude application of the Tort Immunity Act. Plaintiff therefore concedes her argument that the Tort Immunity Act is inapplicable because the Park District's operation of the harbor system was a proprietary interest.

Plaintiff claims, however, that liability should nonetheless be imposed upon defendant under the Recreational Use of Land and Water Areas Act (Recreational Use Act) (745 ILCS 65/1 et seq. (West 1994)). Plaintiff claims that the Recreational Use Act is applicable to this case, rather than the Tort Immunity Act. The Recreational Use Act provides that an owner of land does not owe a duty of care to keep the premises safe for entry or use by persons for recreational or conservation purposes, or to warn persons entering for such purposes of natural or dangerous conditions, uses, structures or activities. 745 ILCS 65/3 (West 1994). The purpose of the Recreational Use Act is "to encourage owners of land to make land and water areas available to the public for recreational or conservation purposes by limiting their liability toward persons entering thereon for such purposes." 745 ILCS 65/1 (West 1994). The Recreational Use Act provides an immunity to all land "owners," which includes private parties and political subdivisions of the state. 745 ILCS 65/2(b) (West 1994). "Land" includes water and watercourses. 745 ILCS 65/2(a) (West 1994). The owner of land may, however, be liable for willful and wanton failure to guard or warn against a dangerous condition, use, structure, or activity. 745 ILCS 65/6(a) (West 1994). Furthermore, the Recreational Use Act is inapplicable "where the owner of the land charges the person or persons who enter or go on the land for the recreational use thereof." 745 ILCS 65/6(b) (West 1994). Plaintiff claims that because the Park District charges a fee for use of its harbor system, the Park District cannot escape liability for negligence under the Recreational Use Act.

Defendant, on the other hand, contends that the Tort Immunity Act governs this case. The Tort Immunity Act grants immunities and defenses "to protect local public entities from liability arising from the operation of government." 745 ILCS 10/1-101.1 (West 1992). Section 3-106 of 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).

Therefore, both the Recreational Use Act and the Tort Immunity Act relate to the same subject matter. However, there is no case law addressing the relationship between the ...

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