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Cohen v. Chicago Park District

Court of Appeals of Illinois, First District, Fourth Division

October 27, 2016

ISAAC COHEN, Plaintiff-Appellant,
CHICAGO PARK DISTRICT, Defendant-Appellee.

         Appeal from the Circuit Court of Cook County, No. 14 L 5476 The Honorable William E. Gomolinski, Judge presiding.

          JUSTICE BURKE delivered the judgment of the court, with opinion. Justices McBride and Howse concurred in the judgment and opinion.


          BURKE, JUSTICE

         ¶ 1 Plaintiff, Isaac Cohen, injured his shoulder after riding over a defect in the Lakefront Trail and falling off of his bike. He filed suit against defendant, the Chicago Park District (Park District), claiming it engaged in willful and wanton conduct by failing to repair the defect. The trial court granted summary judgment in favor of the Park District, finding it was immune from liability under section 3-107(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/3-107(a) (West 2012)), which grants absolute immunity to local entities for injuries caused by a condition of a "road which provides access to fishing, hunting, or primitive camping, recreational, or scenic areas." The court also found the Park District's conduct was not willful and wanton and thus, even if section 3-107(a) of the Act did not apply, the Park District was immune from liability under section 3-106 of the Act (745 ILCS 10/3-106 (West 2012)), which provides immunity for injuries occurring on recreational areas, except where a local public entity engages in willful and wanton conduct proximately causing the injuries. 745 ILCS 10/3-106 (West 2012).

         ¶ 2 On appeal, plaintiff argues the trial court erred by (1) finding the Lakefront Trail fell within the scope of section 3-107(a) of the Act, (2) finding section 3-107(a) of the Act governed instead of section 3-106, and (3) finding as a matter of law that the jury could never find the Park District's conduct to be willful and wanton.

         ¶ 3 We conclude the trial court erred by finding section 3-107(a) of the Act applied and by finding no genuine issue of fact existed as to whether the Park District's conduct was not willful and wanton. Accordingly, we reverse the court's grant of summary judgment and remand for further proceedings.

         ¶ 4 I. BACKGROUND

         ¶ 5 Plaintiff testified in a deposition that on a Sunday morning in July 2013 he was riding his bike southbound on the Lakefront Trail near the Shedd Aquarium when he veered toward the middle of the trail to pass a pedestrian.[1] His wheel became caught in a crack in the concrete. The crack was about three or four feet long, two to three inches deep, and three to four inches wide at its widest part. Plaintiff fell, injuring his shoulder. The next week, he went for another bike ride and noticed the defect had been repaired.

         ¶ 6 In 2011, the Park District partnered with the Active Transportation Alliance to study Lakefront Trail usage. Plaintiff attached the Active Transportation Alliance's report to its response to the Park District's motion for summary judgment. The Alliance's report, and the deposition testimony of various Park District employees, established that the Lakefront Trail is an approximately 18-mile, multi-use trail that runs along the lakefront from Ardmore Street on the north to 71st Street on the south. It is made of concrete and asphalt and contains over 50 access points. The purpose of the Lakefront Trail is to provide recreation. It is designed for use by bicyclists, and the Park District's mission is to keep the Lakefront Trail safe for bicyclists. The Lakefront Trail is not open to the public for vehicular travel; however, Park District maintenance vehicles utilize the trail. According to the deposition testimony of Park District employee Robert Thompson, the Lakefront Trail provides access to scenic views and various recreational areas such as a golf course, beaches, softball fields, tennis courts, and harbors.[2] The Park District's overall mission is to (1) enhance the quality of life in Chicago by becoming the leading provider of recreation and leisure opportunities; (2) provide safe, inviting, and beautifully maintained parks and facilities; and (3) create a customer-focused and responsive park system that prioritizes the needs of children and families.

         ¶ 7 The Active Transportation Alliance's report showed more than 70, 000 people access the trail on a typical summer weekend day and more than 60, 000 people access it on a typical summer weekday. The study indicated the trail is a primary transportation corridor for bicycle commuters and is an integral part of Chicago's bicycle transportation network. During the study, 70% of people who accessed the trail were pedestrians, 29% were bicyclists, and 1% were other users. The report stated the Lakefront Trail is also used by "people training for marathons, parents with children in strollers, tourists on rental bikes, couples on in-line skates, teens on skateboards, and thousands of other people using the trail for commuting, training or just taking a leisurely stroll." At the time of the Alliance's report, the trail was "officially" closed between 11 p.m. and 6 a.m.

         ¶ 8 Linda Daly, Park District deputy director of capital construction, and Robert Rejman, Park District director of planning and construction, testified in depositions that man-made structures such as paved basketball courts, showers and restrooms, bike rental facilities, golf courses, parking lots, baseball fields, vendors, skate parks, and at least three bars and restaurants surround the Lakefront Trail. The grass around the Lakefront Trail is mowed, trees are trimmed, and gardens are maintained. Hunting around the trail is prohibited.

         ¶ 9 Park District employee William Gernady testified in a deposition that he inspects the Lakefront Trail annually for defects, including cracks in the pavement. Gernady has inspected the trail for 14 years. Every spring, Gernady drives along the Lakefront Trail twice and measures and marks with paint the areas that need to be repaired. Per his own policy, Gernady has any defect deeper than one and a half inches repaired.

         ¶ 10 After conducting his inspection, Gernady compiles a scope of repairs to be performed and creates a request for proposal to collect bids from a pool of pre-qualified "rapid response" contractors. The "rapid response" program is an expedited procurement process for the Park District through which most Lakefront Trail repairs are conducted. According to Rejman's deposition testimony, rapid response requests are used for "jobs that aren't absolutely necessary" and do not present safety concerns. Gernady testified the Park District notifies a contractor that it has accepted the contractor's bid by providing the contractor with a "notice to proceed." According to Rejman, the Park District also typically provides the contractor with an anticipated schedule indicating the date upon which the Park District would like the repair to be completed. At times, Gernady supervises the contractors' repairs.

         ¶ 11 Daly testified that if Gernady discovered a defect during his inspection that he believed to be an emergency, that defect could "potentially" be priced out immediately, on its own, instead of being included in the "scope of work" with the other repairs. Rejman testified that to expedite the repair process, the Park District can alert contractors that a repair is urgent. Gernady testified the Park District can also immediately contact a contractor, instead of submitting a notice to proceed, and instruct the contractor that he is allowed to proceed with the work. Rejman testified that at times, a contractor will make a repair within a few days; however, this depends on the availability of contractors, and repairs can "take a little bit longer" during a busy time of year. Gernady testified repairs can be completed "[w]ithin one day sometimes."

         ¶ 12 Rejman testified that the Park District has blocked off areas of the Lakefront Trail with barricades and signs when those areas have been impassable due to difficult conditions. Rejman explained these larger barriers have been erected "in areas where a lot of damage has been done." Rejman was not "aware" of the Park District ever marking potholes or cracks with bright-colored paint; however, he "would think" this was something the Park District was capable of doing. He did not think the Park District would place cones near cracks or holes because "the cones wouldn't stay there for very long."

         ¶ 13 Robert Arlow, the Park District's director of facility management, testified in a deposition that he manages tradesmen who maintain and repair Park District buildings. Generally, Arlow's department does not perform maintenance and repair work to the Lakefront Trail because it does not have an asphalt crew. However, if an absolute need arose to repair "a small thing, " Arlow "could probably send a carpenter out with a bag of asphalt." Arlow only knew of this happening on one occasion, in June 2014. According to Arlow, the Lakefront Trail is repaired almost exclusively by outside contractors.[3]

         ¶ 14 Arlow receives complaints from Park District patrons about park conditions in need of repair. When he receives a call, Arlow inspects the defect himself or asks somebody else to check the defect and determine its severity. If Arlow determines the condition needs to be fixed, he calls a general foreman and tells him to send somebody to look at the condition and determine the type of repair that can be performed.

         ¶ 15 In the spring of 2013, Arlow received a call from a patron informing him of a defect on the Lakefront Trail between the Shedd Aquarium and South Lake Shore Drive. Arlow did not know the exact date he received the call, but because snow was not on the ground, he assumed it "had to be later than April." Arlow inspected the defect within a few days of receiving the call and determined it was in need of repair. He contacted Gernady. Arlow did not know why he did not have a Park District laborer immediately fill the defect with asphalt.

         ¶ 16 Gernady testified he recalled receiving Arlow's call regarding a dangerous crack in the "time zone of June" 2013. According to Gernady, this was the only 2013 Lakefront Trail repair that was classified as an emergency. Gernady included the crack in the scope of work that he prepared to solicit bids from the rapid response contractors. On June 10, 2013, the Park District sent a request for proposal to the rapid response contractors.

         ¶ 17 On June 12, 2013, Meccor Industries submitted a proposal. On June 19, the Park District sent a notice to proceed to Meccor Industries. It did not include a completion deadline. Subcontractor Beverly Asphalt Paving Company (Beverly) repaired the defect on July 10, 2013. Gernady testified that before doing so, Beverly completed a repair on another part of the Lakefront Trail on June 19, 2013. Gernady could not explain the reason for the gap in Beverly's work between June 19 and July 10.

         ¶ 18 About a year later, in approximately June 2014, Arlow received another complaint from a patron about the trail's condition near the Shedd Aquarium. After viewing the condition, Arlow determined it was "[s]imilar but not as severe as where the ...

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