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Kayser v. Village of Warren

February 16, 1999

GLORYA KAYSER, PLAINTIFF-APPELLANT,
v.
VILLAGE OF WARREN, DEFENDANT-APPELLEE (STAGECOACH TRAIL ASSOCIATION, DEFENDANT).



The opinion of the court was delivered by: Justice Rapp

IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

Appeal from the Circuit Court of Jo Daviess County.

No. 97--L--11

Honorable William A. Kelly, Judge, Presiding.

Plaintiff, Glorya Kayser (Kayser), brought a negligence action against the Village of Warren (Village), an Illinois municipal corporation and the owner of the Warren community building, after she was injured exiting the Warren community building. The circuit court of Jo Daviess County dismissed Kayser's complaint pursuant to section 2--619 of the Code of Civil Procedure (735 ILCS 5/1--101 et seq. (West 1996)), ruling that Kayser's claim was barred by the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3--106 (West 1996)). We affirm.

Kayser's complaint alleged that on June 22, 1997, Kayser was selling T-shirts in a booth during the annual Stagecoach Trail Festival. After she delivered T-shirts to storage inside the Warren community building, Kayser was injured exiting the building. Kayser fell as she attempted to maneuver around a chair propped inside the exit door.

The Village moved to dismiss Kayser's complaint, asserting that it was immune from liability for negligence under section 3--106 of the Tort Immunity Act, which provides as follows:

"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 1996). It is undisputed that the Village is a local public entity and that the Warren community building is public property. See 745 ILCS 10/1--206, 3--101 (West 1996).

In support of its position that the Warren community building is public property intended or permitted to be used for recreational purposes, the Village filed the affidavit of Warren village attorney Michael A. Toepfer, which stated that functions held at the Warren community building included "family picnics, club meetings, receptions, bake sales, book sales, Chamber of Commerce meetings, preschool Christmas concerts, and long range planning committee group supper and meetings."

Kayser opposed the Villages's motion, arguing that the Tort Immunity Act did not preclude her suit because the Warren community building could not be characterized as a recreational facility within the meaning of the Act.

The trial court agreed with the Village and found that the Warren community building was recreational property under section 3--106. Thus, applying the immunity granted under the statute, the trial court dismissed Kayser's suit.

On appeal, the sole issue is whether the Warren community building is "public property intended or permitted to be used for recreational purposes" as contemplated by section 3--106 of the Tort Immunity Act. Kayser argues that the Warren community building is not within the purview of section 3--106 because the activities held at the building are not sufficiently "sportive" or "active." If the Warren community building falls within the purview of section 3--106, however, the Village is immune from liability because Kayser's complaint contained no allegation of willful and wanton conduct. See 745 ILCS 10/3--106 (West 1996).

In general, under section 3--102 of the Tort Immunity Act, municipalities have a duty to exercise ordinary care to maintain their property in a reasonably safe condition. 745 ILCS 10/3--102 (West 1996). Section 3--106, however, provides public entities with an affirmative defense against simple negligence claims arising from conditions present on any public property intended or permitted to be used for recreational purposes, regardless of the primary purpose of the property. Bubb v. Springfield School District 186, 167 Ill. 2d 372, 378 (1995). This section was enacted with the purpose of encouraging the development and maintenance of public parks, playgrounds, and similar recreation areas. Lewis v. Jasper County Community Unit School District, 258 Ill. App. 3d 419, 422 (1994).

As the supreme court recognized, public property may have more than one intended use. Bubb, 167 Ill. 2d at 383. Thus, the character of the property as a whole determines whether section 3--106 immunity applies. Sylvester v. Chicago Park District, 179 Ill. 2d 500, 509 (1997). In addition, section 3--106 may apply to facilities and structures as well. Sylvester, 179 Ill. 2d at 508. These facilities or structures need not be recreational in character; section 3--106 will apply if the usefulness of public property intended or permitted to be used for recreational purposes is increased. Sylvester, 179 Ill. 2d at 508; see Annen v. Village of McNabb, 192 Ill. App. 3d 711 (1990) (holding section 3--106 applies to restroom on park grounds). Section 3--106 does not apply to ...


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