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O'Toole v. Chicago Zoological Society

Court of Appeals of Illinois, First District, Fourth Division

August 28, 2014

KRISTINE O'TOOLE, Plaintiff-Appellant,
v.
THE CHICAGO ZOOLOGICAL SOCIETY, d/b/a Brookfield Zoo, Defendant-Appellee

Appeal from the Circuit Court of Cook County. 2012 L 8354. Honorable John P. Kirby Judge, Presiding.

SYLLABUS

Plaintiff's negligence complaint for the injuries she suffered in a fall at defendant zoo was improperly dismissed as untimely pursuant to the one-year statute of limitations applicable under the Tort Immunity Act, since the zoo is not a local public entity to which the Act's one-year limitations period applies; rather, it operates on land owned bye the Forest Preserve District of Cook County pursuant to an agreement with the district, and, therefore, the dismissal was reversed and the cause was remanded for further proceedings.

For Appellant: William J. McMahon, George T. Brugess, Hoey & Farina, P.C., Chicago, IL.

For Appellee: Michael Resis, Nicholas G. Kourvetaris, Smith Amundsen LLC, Chicago, IL.

JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Epstein concurred in the judgment and opinion.

OPINION

Page 870

LAVIN, J.

[¶1] This appeal arises from the circuit court's order dismissing plaintiff's complaint as untimely pursuant to section 2-619(a) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619(a) (West 2010)). Plaintiff Kristine O'Toole filed a single-count negligence complaint against defendant, the Chicago Zoological Society, d/b/a Brookfield Zoo, within two years of sustaining personal injuries at the zoo. The circuit court, however, apparently agreed with defendant's contention that the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 2010)) applied to defendant, and thus, that act's one-year statute of limitations barred plaintiff's action. On appeal, plaintiff asserts that the circuit court erred by dismissing the complaint because defendant did not constitute a local public entity, as required to benefit from the Tort Immunity Act's shorter statute of limitations. We agree, as the government neither owned defendant nor controlled its daily operations.

[¶2] I. BACKGROUND

[¶3] On July 26, 2012, plaintiff filed a complaint alleging that while visiting defendant's premises on August 7, 2010, she tripped on the pavement, causing severe personal injuries. In addition, plaintiff alleged that defendant, through its negligent acts or omissions, breached its duty to exercise reasonable care to maintain and operate the premises, proximately causing plaintiff's fall and injuries.

[¶4] Defendant subsequently moved to dismiss the complaint pursuant to section 2-619 of the Code, arguing, in pertinent part, that the complaint filed almost two years after plaintiff's injury occurred was not timely. Specifically, defendant argued that it constituted a local public entity, to which the Tort Immunity Act's one-year statute of limitations applied (745 ILCS 10/8-101(a) (West 2010)), because defendant was a " not-for-profit corporation organized for the purpose of conducting public business" (745 ILCS 10/1-206 (West 2010)). But see Borg v. Chicago Zoological Society, 256 Ill.App.3d 931, 932-33, 628 N.E.2d 306, 194 Ill.Dec. 809 (1993) (where defendant argued that the two-year statute of limitations applied). In support of its allegation that it conducted public business, defendant further alleged that it was organized for the purpose of maintaining a zoo on land owned by the Forest Preserve District of Cook County (the District), and pursued an activity that benefitted the entire community without limitation. In addition, defendant argued that pursuant to the Cook County Forest Preserve District Act (the District Act) (70 ILCS 810/1 et seq. (West 2010)), the District could permit defendant to maintain a zoo on the District's land subject to the District's control and supervision. Defendant also alleged that an agreement formed between defendant and the District in 1986 gave the District control over defendant's operation and maintenance of the zoo.

[¶5] Attached to the motion was the 1986 agreement for defendant to maintain and operate a zoo on the District's land. The agreement stated that defendant was organized for the purpose of maintaining, and operating a zoo in Cook County, " making

Page 871

collections of animals and promoting zoology and kindred subjects and for the instruction and recreation of the people." In furtherance of the agreement, defendant would provide animals and collections, and devote all funds, donations and income to the establishment, maintenance, operation and development of the zoo. Defendant was also required to operate and maintain the zoo, as well as its buildings, structures, enclosures and other property. In addition, the District would levy and collect taxes needed for maintenance and operation of the zoo and defendant would annually submit an itemized budget. Defendant did not require approval, however, with respect to expenditures made from financial sources other than the District. Moreover, the agreement provided that from the funds budgeted by the District, defendant shall do the following:

" [S]elect and provide all animals, equipment, materials and supplies necessary and proper to carry out the purpose of this agreement, and shall have entire control and management, of said [zoo] and its collections, and shall appoint, employ, direct, control, promote or remove all persons engaged in the management, care or operation of [the zoo], and shall fix and pay their respective salaries and compensation." (Emphasis added.)

Defendant could also grant privileges and concessions with the District's approval of rates and times of operation. Additionally, the agreement required the zoo to be free to the public once a week and at all times for school groups, as required by the District Act (see 70 ILCS 810/40 (West 2010)), and ...


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