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O'Melia v. Lake Forest Symphony Association Inc.

March 31, 1999

ELFRIEDA O'MELIA, PLAINTIFF-APPELLANT,
v.
LAKE FOREST SYMPHONY ASSOCIATION, INC., AND JORDAN LOWE, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County. No. 96--L--756 Honorable Henry C. Tonigan III, Judge, Presiding.

The opinion of the court was delivered by: Justice Inglis

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Plaintiff, Elfrieda O'Melia, appeals the order of the circuit court of Lake County dismissing her claim against defendants, Lake Forest Symphony Association, Inc. (the Symphony Association), and Jordan Lowe, as untimely filed. Plaintiff contends that the Symphony Association is not a "local public entity" as defined by section 1--206 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/1--206 (West 1996)) and is therefore not entitled to use the one-year statute of limitations under section 8--101 of the Act (745 ILCS 10/8--101 (West 1996)). We agree and reverse and remand.

The following facts are taken from the well-pleaded allegations of the complaint, exhibits, and depositions filed in the record. Plaintiff attended a July 4, 1995, concert hosted by the Symphony Association. Plaintiff was transported from the parking area to the lawn in a golf cart provided by the Symphony Association and driven by Lowe. Plaintiff exited the golf cart and was injured when Lowe drove into her and knocked her down.

The Symphony Association is a not-for-profit corporation incorporated in Illinois in 1959. The articles of incorporation state that it was organized for the following purposes:

"civic, recreational, educational and musical purposes including (but without limiting the generality of the foregoing)[:] for the development of and sustaining interest in music in the community of Lake Forest, Lake Bluff and vicinity; to sponsor, present and encourage concerts by school, church and other community orchestral and choral groups; to encourage, sponsor and provide an educational program in music and its appreciation; to do all things necessary or convenient to effect the same."

Pursuant to its bylaws, the Symphony Association is run by a number of committees, including an executive committee and a marketing committee. Its board of directors consists of subscribers and donors to the symphony. The symphony performs six subscription concerts each year; subscriptions cost $100 to $135 for the year.

The Symphony Association's endeavors include holding concerts by the symphony, music lessons, and school programs. Music lessons are provided through the music institute and, together with symphony performances, generate the largest portion of revenue for the Symphony Association. Additionally, schools pay a fee to the Symphony Association in order to hold a school program. The Symphony Association also raises money by holding an annual benefit, and it receives grants from the Illinois Arts Council and the National Endowment for the Arts. In all, the Symphony Association generates revenues of approximately $1 million each year, using about half of the total revenues to pay musicians' and employees' wages. The Symphony Association also carries its own liability insurance.

The Symphony Association performs a Fourth of July concert every year, which attracts between 4,000 to 6,500 persons. Admission is charged for the concert. The City of Lake Forest does not contribute any money to the concert and, while it allows the Symphony Association to use city facilities to perform the concert, it charges the Symphony Association for the security and cleaning services associated with the concert.

On October 7, 1996, plaintiff filed her complaint against the Symphony Association. On July 2, 1997, plaintiff filed her amended complaint, adding Lowe as a defendant. On August 27, 1997, the Symphony Association filed its motion to dismiss, alleging that plaintiff's suit was untimely filed pursuant to section 8--101 of the Act. Lowe subsequently joined the motion. The trial court granted defendants' motion, finding that the Symphony Association was a local public entity under the Act and that plaintiff's action was filed outside the one-year limitations period. The trial court further found that Lowe was an employee of the Symphony Association for the purposes of the Act. Plaintiff timely appeals.

The sole issue on appeal is whether the Symphony Association is a "local public entity" as defined by the Act. This is a case of first impression in this district and requires us to interpret section 1--206.

" 'Local public entity' includes a county, township, municipality, municipal corporation, school district, school board, educational service region, regional board of school trustees, community college district, community college board, forest preserve district, park district, fire protection district, sanitary district, museum district, emergency telephone system board, and all other local governmental bodies. 'Local public entity' also includes library systems and any intergovernmental agency or similar entity formed pursuant to the Constitution of the State of Illinois or the Intergovernmental Cooperation Act as well as any not-for-profit corporation organized for the purpose of conducting public business. It does not include the State or any office, officer, department, division, bureau, board, commission, university or similar agency of the State." (Emphasis added.) 745 ILCS 10/1--206 (West 1996).

Our primary goal in interpreting a statutory provision is to ascertain and give effect to the legislature's intent. To discern that intent, we first consider the plain language of the provision itself and consider it in the context of the act as a whole and in connection with every other section of the act. Barnett v. Zion Park District, 171 Ill. 2d 378, 388-89 (1996). If the provision is clear and unambiguous, then the plain language of the act must be given effect without resort to other interpretive aids. Barnett, 171 Ill. 2d at 389. We must not depart from the plain language of the act by creating exceptions, limitations, or conditions that conflict with the express legislative intent. Barnett, 171 Ill. 2d at 389.

The key to determining whether the Symphony Association is entitled to claim the limitations period under the Act is the interpretation of the phrase "any not-for-profit corporation organized to conduct public business." Neither party disputes that the Symphony Association is a not-for-profit corporation. Our inquiry, therefore, must center on what activities the ...


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