Appeal from the Circuit Court of Perry County. No. 93-L-35 Honorable James W. Campenella, Judge, presiding.
The opinion of the court was delivered by: Justice Kuehn delivered the opinion of the court:
On November 21, 1992, plaintiffs, Virginia Batson and her husband, Bill Batson, attended a craft fair in the Pinckneyville Junior High School gymnasium. The gymnasium is owned and operated by defendant, Pinckneyville Elementary School District #50. Virginia and Bill exited the gymnasium through a double door that opened to a sidewalk. The sidewalk contained a single step down near this double door. After stepping through the doorway and onto the sidewalk, Virginia continued moving and fell down near the single step.
On November 19, 1993, Virginia and Bill initiated this action in the Perry County Circuit Court. Count I of their first amended complaint seeks damages for Virginia, essentially claiming that defendant was negligent in maintaining the step on the sidewalk in a dangerous condition and failing to warn Virginia of that condition. Count II seeks derivative damages for Bill based upon a loss of consortium.
On February 2, 1996, defendant filed its motion for summary judgment grounded on immunity under section 3-106 of the Local Government and Governmental Employees Tort Immunity Act (the Act) (Ill. Rev. Stat. 1991, ch. 85, par. 3-106). The circuit court subsequently granted summary Judgement in defendant's favor based upon our supreme court's decision in Bubb v. Springfield School District 186, 167 Ill. 2d 372, 657 N.E.2d 887 (1995). On February 16, 1996, plaintiffs moved the circuit court to reconsider its summary Judgement ruling and requested leave to amend their complaint to allege willful and wanton misconduct on defendant's part. On October 7, 1996, the circuit court denied plaintiffs' motion. Plaintiffs now appeal the circuit court's summary judgment ruling and its denial of leave to amend the complaint.
The dispositive issue in this case is whether a genuine issue of material fact exists, thereby precluding summary judgment. We hold that such an issue of material fact does exist and reverse.
Summary Judgement "shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to a Judgement as a matter of law." 735 ILCS 5/2-1005 (West 1994). However, it is a drastic remedy and "must be granted with caution in order to avoid preempting a litigant's right to trial by jury or his right to fully present the factual basis of a case where a material dispute may exist." Lamkin v. Towner, 246 Ill. App. 3d 201, 204, 615 N.E.2d 1208, 1210 (1993). "A triable issue of fact exists where there is a dispute as to material facts or where the material facts are undisputed but reasonable persons might draw different inferences from those facts." In re Estate of Hoover, 155 Ill. 2d 402, 411, 615 N.E.2d 736, 740 (1993). In determining the appropriateness of summary judgment, the trial court strictly construes all evidence in the record against the movant and liberally in favor of the opponent. Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871 (1986). On appeal, courts review summary Judgement orders de novo. Myers v. Health Specialists, S.C., 225 Ill. App. 3d 68, 72, 587 N.E.2d 494, 497 (1992).
Section 3-106 of the 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." Ill. Rev. Stat. 1991, ch. 85, par. 3-106.
The legislative purpose of this section is to encourage the development and maintenance of public parks, playgrounds, and similar recreation areas. Lewis v. Jasper County Community Unit School District No. 1, 258 Ill. App. 3d 419, 422, 629 N.E.2d 1227, 1229 (1994). Furthermore, "y providing immunity, the legislature sought to prevent the diversion of public funds from their intended purpose to the payment of damage claims." Bubb, 167 Ill. 2d at 378, 657 N.E.2d at 891.
This case turns on whether the sidewalk on which Virginia fell was "public property intended or permitted to be used for recreational purposes" within the import of this statute (Ill. Rev. Stat. 1991, ch. 85, par. 3-106). The immunity provided under section 3-106 does not hinge on the type of activity involved in a particular case. Ozuk v. River Grove Board of Education, 281 Ill. App. 3d 239, 243, 666 N.E.2d 687, 690 (1996). Rather, an application of section 3-106 should be based on a case-by-case evaluation of the subject property's character. Bubb, 167 Ill. 2d at 384, 657 N.E.2d at 893-94. "In determining the nature of public property, courts have therefore considered whether the property has been used for recreation in the past or whether recreation has been encouraged there." Bubb, 167 Ill. 2d at 382, 657 N.E.2d at 893.
Defendant's foremost argument for affirmance now rests on our supreme court's recent decision in Sylvester v. Chicago Park District, No. 81138, ___ Ill. 2d ___, ___ N.E.2d ___ (December 4, 1997), an opinion not considered below. *fn1 Defendant reads Sylvester to grant immunity to all walkways providing access to recreational facilities because such paths increase the usefulness of these facilities. We believe that defendant's reading is too broad.
Sylvester involved a negligence action seeking damages for injuries sustained when the plaintiff tripped over a concrete parking abutment and fell on the walkway of a park district parking lot serving Soldier Field. The defendant park district filed a motion to dismiss the plaintiff's complaint in the circuit court based upon section 3-106; the motion was subsequently denied. Following a bench trial, the circuit court entered Judgement in the plaintiff's favor. On appeal, the first district appellate court affirmed. In reversing both the circuit court's denial of the defendant park district's motion to dismiss and the appellate court's affirmance thereof, our supreme court held:
"Although the walkways and parking lots adjacent to Soldier Field may not be primarily recreational, Soldier Field itself is certainly recreational and these facilities increase its usefulness. Taken as a whole, we find that Soldier Field and its adjacent walkways and parking lots are intended or permitted to be used for recreational purposes.
*** In this case, an examination of the property as a whole indicates that the parking lot in which plaintiff fell was an integral part of the Soldier Field recreational facility. We therefore believe that the trial Judge erred in narrowly focusing on only whether the parking lot by ...