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Roberta Minor Moore, the Special Administrator of v. Chicago Park District

June 28, 2011

ROBERTA MINOR MOORE, THE SPECIAL ADMINISTRATOR OF
THE ESTATE OF SYLVIA LEE MOORE,
PLAINTIFF-APPELLEE,
v.
CHICAGO PARK DISTRICT,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County No. 07 L 000778 Honorable Randye A. Kogan, Judge Presiding.

The opinion of the court was delivered by: Justice Harris

JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Cunningham concurred in the judgment and opinion. Justice Connors dissented, with opinion.

OPINION

Here we are called upon to determine the following certified question pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010): "Does an unnatural accumulation of snow and ice constitute the 'existence of a condition of any public property' as this expression is used in Section 3-106 of the Tort Immunity Act?" We answer the certified question in the negative. In Illinois, ice and snow are temporary and not permanent conditions of real property. The snow and ice were moved by the park district and thus became an unnatural accumulation. In construing section 3-106 of the Local Government and Governmental Employees Tort Immunity Act (hereafter Act) (745 ILCS 10/3-106 (West 2008)) strictly against the Park District, we cannot say that the unnatural accumulation of snow and ice is a condition of public property within the meaning of the statute. Under our supreme court's decision in McCuen v. Peoria Park District, 163 Ill. 2d 125, 129 (1994), " If otherwise safe property is misused so that it is no longer safe, but the property itself remains unchanged, any danger presented to the property is due to the misuse of the property and not to the condition of the property."

JURISDICTION

The trial court certified the question now before this court on October 29, 2010. The park district filed a petition for leave to appeal, which this court granted on December 3, 2010. Accordingly, this court has jurisdiction pursuant to Rule 308 governing certified questions. Ill. S. Ct. R. 308 (eff. Feb. 26, 2010).

BACKGROUND

Sylvia Lee Moore and Glorious Williams regularly attended a senior water aerobics class offered by the Chicago park district (Park District) at Fernwood Park. On the morning of January 23, 2006, Ms. Moore and Ms. Williams drove together to Fernwood Park and Ms. Moore parked the car in the parking lot. It had snowed several inches over the weekend, but the parking lot had been plowed and shoveled. A Park District employee had shoveled the snow on the sidewalks at Fernwood Park by pushing the snow to the curb. After completing the class, both women left the building and headed for Ms. Moore's car in the parking lot. Three cars that were parked on or near the handicap parking space blocked easy access to the parking lot and there was snow and ice between the parked cars. Ms. Moore proceeded to step between two parked cars and, while stepping over the snow, she fell and broke her leg. After undergoing an operation to repair her broken leg, Ms. Moore suffered brain damage and subsequently died.

Plaintiff, Roberta Minor Moore, as special administrator, filed a two-count complaint alleging the Park District negligently created an unsafe unnatural accumulation of ice and snow on its property which caused injuries and the death of her decedent, Sylvia Lee Moore. Count I asserted a survivor's action while count II alleged wrongful death. The Park District moved for summary judgment, which the trial court denied on March 18, 2010. On April 13, 2010, the Park District filed a motion to certify two questions for interlocutory appeal pursuant to Rule 308, and supplemented its motion on May 10, 2010. On October 14, 2010, the trial court vacated its denial of the Park District's motion for summary judgment and certified the question now before this court on October 29, 2010. The Park District filed an application for leave to appeal pursuant to Rule 308, which this court granted on December 3, 2010.

ANALYSIS

The interpretation of a statute, such as the Tort Immunity Act in this case, is a question of law that we review de novo. Abruzzo v. City of Park Ridge, 231 Ill. 2d 324, 332 (2008). In reviewing a statue, we must ascertain and give effect to the intent of the legislature. Id. The intent of the legislature is best found by the plain and ordinary meaning of the statute's language. Id. Statutory aids of construction will not be applied if the language of the statute is clear and unambiguous. Id.

The Tort Immunity Act does not create any new duties, only immunities and defenses. Bubb v. Springfield School District 186, 167 Ill. 2d 372, 378 (1995). The public entity bears the burden of proving whether it is immune from a claim under the Act. Van Meter v. Darien Park District, 207 Ill. 2d 359, 370 (2003). The Act is to be strictly construed against the public entity because it is in derogation of the common law. Aikens v. Morris, 145 Ill. 2d 273, 278 (1991). Section 3-106 of the Act provides an affirmative defense a public entity may raise.

"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." (Emphasis added). 745 ILCS 10/3-106 (West 2008).

If a public entity proves that the affirmative defense provided by section 3-106 applies, tort liability is precluded. Bubb, 167 Ill. 2d at 378. However, section 3-106 does not apply if an alleged liability is not based on the existence of a condition of public ...


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