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Roberta Minor Moore, Special Adm'r of the Estate of Sylvia Lee Moore v. Chicago Park District

October 18, 2012

ROBERTA MINOR MOORE, SPECIAL ADM'R OF THE ESTATE OF SYLVIA LEE MOORE, DECEASED, APPELLEE
v.
CHICAGO PARK DISTRICT, APPELLANT.



The opinion of the court was delivered by: Justice Karmeier

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

Justices Thomas, Garman, Burke, and Theis concurred in the judgment and opinion.

Chief Justice Kilbride dissented, with opinion, joined by Justice Freeman.

OPINION

¶ 1 The circuit court of Cook County certified the following question for interlocutory appeal pursuant to Supreme Court Rule 308 (Ill. S. Ct. R. 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?" The appellate court answered this question in the negative. 2011 IL App (1st) 103325. We granted leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010). For the reasons that follow, we find that the appellate court answered the certified question incorrectly. Accordingly, we reverse the judgment of the appellate court and remand this cause to the circuit court for further proceedings consistent with this opinion.

¶ 2 BACKGROUND

¶ 3 On January 23, 2006, decedent, Sylvia Lee Moore, fell in the parking lot while she was leaving the Fernwood Park Fieldhouse, owned and operated by defendant Chicago Park District. Three inches of snow had fallen two days earlier and defendant had plowed the parking lot and shoveled and salted the sidewalk leading to the main entrance. Decedent had safely entered the Fieldhouse using this path in order to attend a senior water aerobics class, but chose to exit through another door. Decedent's route to the car in which she was traveling was blocked by three cars parked in designated spots. Decedent chose to walk between two of the cars but slipped as soon as she stepped onto the plowed asphalt. Decedent was attempting to step over a pile of snow that had been collected at the edge of the parking lot due to plowing. The snow was approximately five inches high, which was equal to the height of the curb. Decedent fractured her femur in the fall. After undergoing surgery to repair her leg, decedent suffered complications which led to brain damage and subsequently died.

¶ 4 This interlocutory appeal stems from a second amended complaint filed by plaintiff Roberta Minor Moore, as special administrator of the estate of Sylvia Lee Moore, against defendant Chicago Park District, seeking damages pursuant to the Survival Act (755 ILCS 5/27-6 (West 2006)) and the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2006)). Plaintiff alleged that defendant was negligent in that it, by and through its servants and agents, inter alia, "negligently and carelessly shoveled and plowed snow into mounds in the area of the parking lot and walkway including the pedestrian ramp creating an unnatural condition to walk upon or step over." Defendant moved for summary judgment, arguing it was immune from plaintiff's claims under section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (745 ILCS 10/3-106 (West 2008)). On March 18, 2010, the trial court denied defendant's motion, citing Stein v. Chicago Park District, 323 Ill. App. 3d 574 (2001), and stating that section 3-106 immunity did not apply because snow is "not affixed to the property in a way that it would become property itself."

¶ 5 On April 13, 2010, defendant filed a motion to certify two questions for interlocutory appeal pursuant to Rule 308, and supplemented its motion on May 10, 2010, based on Callaghan v. Village of Clarendon Hills, 401 Ill. App. 3d 287 (2010), which held that unnatural accumulations of snow and ice represented a "condition of public property" under section 3-106. On October 14, 2010, the trial court vacated its denial of defendant's motion for summary judgment,*fn1 and on October 29, 2010, the court certified the above-quoted question of law.

¶ 6 The appellate court allowed defendant's application for leave to appeal under Rule 308 and answered the certified question in the negative. The majority concluded, based on this court's holding in McCuen v. Peoria Park District, 163 Ill. 2d 125 (1994), that the alleged activity of defendant's employee in moving the snow and ice on the parking lot was an unsafe activity conducted upon otherwise safe property such that defendant could not rely on the immunity provided by section 3-106 of the Act. 2011 IL App (1st) 103325,

¶ 18. Justice Connors dissented, reading McCuen to hold that the snow and ice are a condition of the property under section 3-106 because they are a characteristic of the property, rather than an activity conducted on it. 2011 IL App (1st) 103325, ¶ 29 (Connors, J., dissenting).

¶ 7 This court allowed defendant's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010). We subsequently allowed the Park District Management Agency to submit an amicus curiae brief in support of defendant, and the Illinois Trial Lawyers Association to submit an amicus curiae brief in support of plaintiff. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

¶ 8 ANALYSIS

¶ 9 Generally, the scope of our review is limited to the certified question. Simmons v. Homatas, 236 Ill. 2d 459, 466 (2010); Harvest Church of Our Lord v. City of East St. Louis, Illinois, 407 Ill. App. 3d 649, 652 (2011). Certified questions, by definition, are questions of law that this court reviews de novo. Simmons, 236 Ill. 2d at 466; Barbara's Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 57-58 (2007). Here, we are asked to construe section 3-106 of the Tort Immunity Act. The Illinois legislature enacted the Tort Immunity Act to provide immunities and defenses to governmental entities. Bubb v. Springfield School District 186, 167 Ill. 2d 372, 378 (1995). By shielding recreational-based public entities from liability under section 3-106, the Illinois legislature sought to encourage and promote the development and maintenance of parks, playgrounds, and other recreational areas (Kayser v. Village of Warren, 303 Ill. App. 3d 198, 200 (1999)) and to prevent the diversion of public funds from their intended purpose to the payment of damage claims (Bubb, 167 Ill. 2d at 378). In interpreting a provision of the Tort Immunity Act, as with any statute, our primary goal is to ascertain and give effect to the intention of the legislature. Ries v. City of Chicago, 242 Ill. 2d 205, 215-16 (2011). We seek that intent first from the plain language used in the statute, and if that language is clear and unambiguous, we are not at liberty to depart from its plain meaning. Id. at 216.

¶ 10 Section 3-106 of the Tort Immunity 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,*fn2 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 ...


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