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12/04/97 ALICE SYLVESTER v. CHICAGO PARK DISTRICT

December 4, 1997

ALICE SYLVESTER, APPELLEE,
v.
THE CHICAGO PARK DISTRICT, APPELLANT.



Appeal from Appellate Court, First District. TRIAL JUDGE: Hon. Warren D. Wolsfon. CASE NUMBERS: AC1-93-3639, TR91L16959.

The Honorable Justice Miller delivered the opinion of the court. Chief Justice Freeman, specially concurring. Justice Harrison, dissenting. Justice Nickels, also dissenting. Justice Harrison joins in this dissent.

The opinion of the court was delivered by: Miller

The Honorable Justice MILLER delivered the opinion of the court:

Plaintiff, Alice Sylvester, filed a complaint against defendant, the Chicago Park District, to recover damages for injuries she sustained as a result of a fall on Park District property. The complaint alleged the Park District was negligent in allowing a concrete parking abutment to block a walkway adjacent to a parking lot exit located south of Soldier Field.

The Park District moved to dismiss the complaint 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). 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." Ill. Rev. Stat. 1989, ch. 85, par. 3-106.

The trial judge denied the Park District's motion to dismiss.

Following a bench trial, the judge ruled in favor of plaintiff. However, the judge reduced plaintiff's damages by 10% due to her comparative negligence. The Park District appealed. The appellate court affirmed. No. 1-93-3639 (unpublished order under Supreme Court Rule 23).

The Park District filed a petition for leave to appeal. 155 Ill. 2d R. 315(a). We allowed the Park District's petition. We also allowed the Illinois Association of Park Districts, the Illinois Municipal League, and the Illinois Governmental Association of Pools to file a joint amici curiae brief. 155 Ill. 2d R. 345(a). While the appeal was pending here, plaintiff filed a motion in this court seeking leave to file a first amended complaint in the trial court. Plaintiff's motion has been taken with the case.

BACKGROUND

On September 23, 1991, plaintiff and her husband parked their car at a McCormick Place parking lot and walked toward Soldier Field in order to meet their daughters for a Monday evening Chicago Bears football game. While walking to Soldier Field, plaintiff tripped over a concrete parking abutment (a "car stop") and fell. Employees of the Park District admitted that the car stop was improperly blocking a walkway.

The record reveals that at the time of plaintiff's fall, the car stop was located on a walkway adjacent to a parking lot exit at the northeast corner of Soldier Field's south parking lot. In her complaint, plaintiff alleged that this location was owned, operated, possessed, and maintained by the Park District. The Park District admitted this allegation.

Plaintiff stated in her complaint that she was walking on Park District property in order to reach Soldier Field to attend a football game. Plaintiff has not alleged and the record does not reveal whether plaintiff's fall occurred within the confines of a park. Evidence was introduced, however, to show that the Burnham Park maintenance department cleans the south lot after events occurring at Soldier Field.

Plaintiff allegedly sustained a number of injuries as a result of her fall. Plaintiff sued the Park District under a theory of negligence. Plaintiff alleged that the Park District was negligent in either placing the car stop on the walkway or in failing to remove the car stop from the walkway. Plaintiff also alleged that the Park District was negligent in failing to warn pedestrians of the car stop's location and in failing to illuminate adequately the area in which the car stop was located. Plaintiff did not allege any willful or wanton misconduct on the part of the Park District.

Relying on section 3-106 of the Tort Immunity Act, the Park District filed a motion to dismiss plaintiff's complaint under section 2-619(a)(9) of the Code of Civil Procedure. Ill. Rev. Stat. 1989, ch. 110, par. 2-619(a)(9). The Park District claimed in its motion that plaintiff's use of its property was for the recreational purpose of attending a football game. The Park District stated that this use was intended and permitted by the Park District. Thus, the Park District argued that plaintiff's allegations of negligence were barred by section 3-106.

In support of its motion to dismiss, the Park District stated that the parking lot and walkway were recreational property because they allowed patrons of Soldier Field to park in close proximity to the stadium. The Park District stated that parking in proximity to the stadium furthers a patron's recreational activity of attending a Chicago Bears football game. The Park District's motion to dismiss was denied.

In its answer to plaintiff's complaint, the Park District asserted several affirmative defenses. The Park District again relied on section 3--106. The Park District claimed that it was not liable for the negligence alleged by plaintiff because plaintiff's fall occurred on public property used for recreational purposes.

In a further affirmative defense, the Park District also relied on section 3-102(a) of the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 3-102(a)). Section 3-102(a) provides that a local public entity shall not be liable for injury occurring on public property unless it is proven that the local public entity has actual or constructive notice of the injury causing condition. The Park District stated it had neither actual nor constructive notice of the car stop's improper placement on the walkway. Lacking notice, the Park District alleged that it was immune from liability.

In the alternative, the Park District relied on section 3-102(b) of the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 3-102(b)). Section 3-102(b) provides that a local public entity does not have constructive notice of an injury causing condition located on public property if the local public entity operates a reasonably adequate inspection system. The Park District alleged that its pregame traffic control and parking lot setup routine around Soldier Field qualified as an "inspection system" under section 3-102(b). The Park District claimed that its inspection system provided a defense to any finding of constructive notice.

Following a bench trial, the judge ruled in favor of plaintiff. In reaching this result, the judge found that the Park District was negligent in failing to provide reasonably safe access to Soldier Field. The judge then addressed, and rejected, the Park District's defenses under sections 3--106 and 3--102.

The judge found that the Park District's section 3--106 defense did not apply. The judge stated: "As I previously said, the Park District can't rely on Section 3--106, which grants immunity for recreational facilities, because this parking lot that is access to Soldier Field is not a recreational facility."

The judge also found that there was no evidence to indicate that the Park District had actual notice of the car stop's location on the walkway. However, the judge did find that the Park District had constructive notice of the car stop's location. The car stop was conspicuous because it weighed approximately 100 pounds and took several men or a forklift to move. Also, based on the photographs entered into evidence, the judge stated, "this conspicuous obstacle did exist, and it must have been there, I found, for enough time for the Park District to become aware of it." Because the Park District had constructive notice of the car stop's improper placement on the walkway, the judge found that the Park District was not immune from liability under section 3--102(a).

The judge further found no evidence to support the Park District's claim that its pregame traffic control and parking lot setup routine qualified as an inspection system that would have led to the discovery of the improperly positioned car stop. Thus, section 3--102(b) did not provide a defense to the Park District's constructive notice of the car stop's improper location on the walkway.

The appellate court affirmed. No. 1--93--3639 (unpublished order under Supreme Court Rule 23). The appellate court examined the Park District's section 3--106 defense in light of Bubb v. Springfield School District 186, 167 Ill. 2d 372, 212 Ill. Dec. 542, 657 N.E.2d 887 (1995). In Bubb, we addressed whether a school district is immune from liability for negligence under section 3--106 ...


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