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Mary Grundy v. Lincoln Park Zoo

August 1, 2011

MARY GRUNDY,
PLAINTIFFS-APPELLEES,
v.
LINCOLN PARK ZOO, LINCOLN PARK ZOOLOGICAL SOCIETY, LEVY RESTAURANTS, INC., AND CHICAGO PARK DISTRICT, DEFENDANTS, (LINCOLN PARK ZOOLOGICAL SOCIETY, )
DEFENDANT- APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY No. 09 L 9205 HONORABLE JEFFREY LAWRENCE, JUDGE PRESIDING.

The opinion of the court was delivered by: Thomas E. Hoffman, J

JUSTICE HOFFMAN delivered the judgment of the court, with opinion.

Presiding Justice Hall and Justice Lampkin concurred in the judgment and opinion.

OPINION

¶ 1 Lincoln Park Zoological Society (Lincoln Park) filed this interlocutory appeal in connection with a suit filed by the plaintiff, Mary Grundy, against it, Lincoln Park Zoo (Zoo), Levy Restaurants, and the Chicago Park District. The plaintiff filed the suit to recover damages for injuries she allegedly sustained after tripping over the steel leg of a sign at a cafe located in the Zoo. In the course of the litigation, the circuit court certified four questions for our review pursuant to Supreme Court Rule 308 (eff. February 26, 2010):

"1. Does a stationary but movable warning sign sitting in the same location in the outdoor food court of the Park Place Cafe in the Lincoln Park Zoo for the Zoo's summer season constitute 'a condition of any public property' under Section 3-106 of the Tort Immunity Act?

2. Is a stationary but movable warning sign sitting in the same location in the outdoor food court of the Park Place Cafe in the Lincoln Park Zoo for the Zoo's summer season 'affixed to the property' under Stein v. Chicago Park District's interpretation of Section 3-106 of the Tort Immunity Act?

3. Is a stationary but movable warning sign sitting in the same location in the outdoor food court of the Park Place Cafe in the Lincoln Park Zoo for the Zoo's summer season 'public property' under section 3-101 of the Tort Immunity Act?

4. After the decision in Callaghan v. Vill. Clarendon Hills, is Stein v. Chicago Park District's interpretation of Section 3-106 holding that 'public property' must be 'affixed to the property' so as to become part of its 'mode or state of being' still good law in Illinois?"

¶ 2 Although we initially declined to accept Lincoln Park's petition seeking our review of these questions, the supreme court has by supervisory order directed us to accept the appeal and answer the certified questions.

¶ 3 Before considering those questions, we observe that the plaintiff has not filed a responsive brief in this appeal. In that situation, our supreme court's decision in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 345 N.E.2d 493 (1976), normally dictates that a court consider the merits of an appeal if the issues and record are susceptible to easy decision, but that a court otherwise decide the case in favor of the appellant if the appellant establishes a prima facie case for reversal. Millineum Maintenance Management, Inc. v. County of Lake, 384 Ill. App. 3d 638, 640-41, 894 N.E.2d 845 (2008) (superceded by statute on another point, as explained in Our Savior Evangelical Lutheran Church v. Saville, 397 Ill. App. 3d 1003, 1026, 922 N.E.2d 1143 (2009)). However, in an appeal considering certified questions, Talandis does not apply directly, because ruling in favor of the appellant who establishes a prima facie case would entail not ordering a case-specific outcome, but rather articulating a legal proposition that may or may not be correct. Millineum Maintenance, 384 Ill. App. 3d at 641. For that reason, and because the supreme court has directed us to do so, we address the certified questions on their merits regardless of their simplicity. Because we are presented solely with questions of law, our review is de novo. Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 153, 879 N.E.2d 893 (2007).

¶ 4 We begin with the first certified question, which asks whether a movable sign that remains stationary for the summer season constitutes "a condition of any public property" under Section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/3-106 (West 2008)). This question prompts us to interpret section 3-106 of the Act. For a court interpreting a statute, the goal is to ascertain the legislature's intent in enacting the statute, and the best indicator of that intent is the statute's language, given its plain and ordinary meaning. Johnston v. Weil, 241 Ill. 2d 169, 175, 946 N.E.2d 329 (2011).

¶ 5 Section 3-106 of the Act, which carves an immunity from public entities' common-law duty to exercise ordinary care to maintain their property in a reasonably safe condition (see 745 ILCS 10/3-102 (West 2008); Bubb v. Springfield School District 186, 167 Ill. 2d 372, 377-78, 657 N.E.2d 887 (1995)), states 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, *** unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury." 745 ILCS 10/3-106 (West 2008).

¶ 6 The first certified question focuses our attention on the meaning of the phrase "a condition of any public property."

Although, as the circuit court observed and Lincoln Park observes, there is some case law interpreting that phrase, that ...


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