Sylvester v. Chicago Park District ( 1997 )

     Sylvester v. Chicago Park District, No. 81138 (12/4/97)

     NOTICE: Under Supreme Court Rule 367 a party has 21 days

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     slip opinion is being made available prior to the Court's

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     final decision of the Court. The official copy of the

     following opinion will be published by the Supreme Court's

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     sheets following final action by the Court.

             Docket No. 81138--Agenda 13--March 1997.

          ALICE SYLVESTER, Appellee, v. THE CHICAGO PARK

                       DISTRICT, Appellant.

                 Opinion filed December 4, 1997.

         JUSTICE MILLER delivered the opinion of the court:

         Plaintiff, Alice Sylvester, filed a complaint

    against defendant, the Chicago Park District, to recover

    damages for injuries she sustained as a result of a fall

    on Park District property. The complaint alleged the Park

    District was negligent in allowing a concrete parking

    abutment to block a walkway adjacent to a parking lot

    exit located south of Soldier Field.

         The Park District moved to dismiss the complaint

    pursuant to section 3--106 of the Local Governmental and

    Governmental Employees Tort Immunity Act (Tort Immunity

    Act) (Ill. Rev. Stat. 1989, ch. 85, par. 3--106). Section

    3--106 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, 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." Ill. Rev. Stat. 1989, ch. 85,

                   par. 3--106.

    The trial judge denied the Park District's motion to

    dismiss.

         Following a bench trial, the judge ruled in favor of

    plaintiff. However, the judge reduced plaintiff's damages

    by 10% due to her comparative negligence. The Park

    District appealed. The appellate court affirmed. No. 1--

    93--3639 (unpublished order under Supreme Court Rule 23).

         The Park District filed a petition for leave to

    appeal. 155 Ill. 2d R. 315(a). We allowed the Park

    District's petition. We also allowed the Illinois

    Association of Park Districts, the Illinois Municipal

    League, and the Illinois Governmental Association of

    Pools to file a joint amici curiae brief. 155 Ill. 2d R.

    345(a). While the appeal was pending here, plaintiff

    filed a motion in this court seeking leave to file a

    first amended complaint in the trial court. Plaintiff's

    motion has been taken with the case.

                          BACKGROUND

         On September 23, 1991, plaintiff and her husband

    parked their car at a McCormick Place parking lot and

    walked toward Soldier Field in order to meet their

    daughters for a Monday evening Chicago Bears football

    game. While walking to Soldier Field, plaintiff tripped

    over a concrete parking abutment (a "car stop") and fell.

    Employees of the Park District admitted that the car stop

    was improperly blocking a walkway.

         The record reveals that at the time of plaintiff's

    fall, the car stop was located on a walkway adjacent to

    a parking lot exit at the northeast corner of Soldier

    Field's south parking lot. In her complaint, plaintiff

    alleged that this location was owned, operated,

    possessed, and maintained by the Park District. The Park

    District admitted this allegation.

         Plaintiff stated in her complaint that she was

    walking on Park District property in order to reach

    Soldier Field to attend a football game. Plaintiff has

    not alleged and the record does not reveal whether

    plaintiff's fall occurred within the confines of a park.

    Evidence was introduced, however, to show that the

    Burnham Park maintenance department cleans the south lot

    after events occurring at Soldier Field.

         Plaintiff allegedly sustained a number of injuries

    as a result of her fall. Plaintiff sued the Park District

    under a theory of negligence. Plaintiff alleged that the

    Park District was negligent in either placing the car

    stop on the walkway or in failing to remove the car stop

    from the walkway. Plaintiff also alleged that the Park

    District was negligent in failing to warn pedestrians of

    the car stop's location and in failing to illuminate

    adequately the area in which the car stop was located.

    Plaintiff did not allege any willful or wanton misconduct

    on the part of the Park District.

         Relying on section 3--106 of the Tort Immunity Act,

    the Park District filed a motion to dismiss plaintiff's

    complaint under section 2--619(a)(9) of the Code of Civil

    Procedure. Ill. Rev. Stat. 1989, ch. 110, par. 2--

    619(a)(9). The Park District claimed in its motion that

    plaintiff's use of its property was for the recreational

    purpose of attending a football game. The Park District

    stated that this use was intended and permitted by the

    Park District. Thus, the Park District argued that

    plaintiff's allegations of negligence were barred by

    section 3--106.

         In support of its motion to dismiss, the Park

    District stated that the parking lot and walkway were

    recreational property because they allowed patrons of

    Soldier Field to park in close proximity to the stadium.

    The Park District stated that parking in proximity to the

    stadium furthers a patron's recreational activity of

    attending a Chicago Bears football game. The Park

    District's motion to dismiss was denied.

         In its answer to plaintiff's complaint, the Park

    District asserted several affirmative defenses. The Park

    District again relied on section 3--106. The Park

    District claimed that it was not liable for the

    negligence alleged by plaintiff because plaintiff's fall

    occurred on public property used for recreational

    purposes.

         In a further affirmative defense, the Park District

    also relied on section 3--102(a) of the Tort Immunity Act

    (Ill. Rev. Stat. 1989, ch. 85, par. 3--102(a)). Section

    3--102(a) provides that a local public entity shall not

    be liable for injury occurring on public property unless

    it is proven that the local public entity has actual or

    constructive notice of the injury causing condition. The

    Park District stated it had neither actual nor

    constructive notice of the car stop's improper placement

    on the walkway. Lacking notice, the Park District alleged

    that it was immune from liability.

         In the alternative, the Park District relied on

    section 3--102(b) of the Tort Immunity Act (Ill. Rev.

    Stat. 1989, ch. 85, par. 3--102(b)). Section 3--102(b)

    provides that a local public entity does not have

    constructive notice of an injury causing condition

    located on public property if the local public entity

    operates a reasonably adequate inspection system. The

    Park District alleged that its pregame traffic control

    and parking lot setup routine around Soldier Field

    qualified as an "inspection system" under section 3--

    102(b). The Park District claimed that its inspection

    system provided a defense to any finding of constructive

    notice.

         Following a bench trial, the judge ruled in favor of

    plaintiff. In reaching this result, the judge found that

    the Park District was negligent in failing to provide

    reasonably safe access to Soldier Field. The judge then

    addressed, and rejected, the Park District's defenses

    under sections 3--106 and 3--102.

         The judge found that the Park District's section 3--

    106 defense did not apply. The judge stated: "As I

    previously said, the Park District can't rely on Section

    3--106, which grants immunity for recreational

    facilities, because this parking lot that is access to

    Soldier Field is not a recreational facility."

         The judge also found that there was no evidence to

    indicate that the Park District had actual notice of the

    car stop's location on the walkway. However, the judge

    did find that the Park District had constructive notice

    of the car stop's location. The car stop was conspicuous

    because it weighed approximately 100 pounds and took

    several men or a forklift to move. Also, based on the

    photographs entered into evidence, the judge stated,

    "this conspicuous obstacle did exist, and it must have

    been there, I found, for enough time for the Park

    District to become aware of it." Because the Park

    District had constructive notice of the car stop's

    improper placement on the walkway, the judge found that

    the Park District was not immune from liability under

    section 3--102(a).

         The judge further found no evidence to support the

    Park District's claim that its pregame traffic control

    and parking lot setup routine qualified as an inspection

    system that would have led to the discovery of the

    improperly positioned car stop. Thus, section 3--102(b)

    did not provide a defense to the Park District's

    constructive notice of the car stop's improper location

    on the walkway.

         The appellate court affirmed. No. 1--93--3639

    (unpublished order under Supreme Court Rule 23). The

    appellate court examined the Park District's section 3--

    106 defense in light of Bubb v. Springfield School

    District 186, 167 Ill. 2d 372 (1995). In Bubb, we

    addressed whether a school district is immune from

    liability for negligence under section 3--106 when a

    student is injured on a sidewalk surrounding a school

    when that sidewalk is used for recreation.

         Relying on Bubb, the appellate court attempted to

    determine whether the location of plaintiff's fall was a

    recreational area under section 3--106. The court stated

    that the Park District failed to present evidence

    regarding the recreational character of the location of

    plaintiff's fall. Lacking this evidence, the court

    concluded the trial judge was correct to find that

    section 3--106 did not provide immunity for the Park

    District.

         During its appeal to the appellate court, the Park

    District, for the first time in its reply brief, asked

    the appellate court to take judicial notice of the fact

    that plaintiff's fall occurred within Burnham Park. The

    court declined to do so. The court stated that even if it

    were to take judicial notice of the location of Burnham

    Park, the Park District still failed to carry its burden

    of establishing a section 3--106 affirmative defense. The

    court found that the Park District did not introduce any

    evidence that plaintiff's fall occurred in an area

    traditionally used for recreational purposes.

         The appellate court also reviewed the trial judge's

    two section 3--102 findings. Because the car stop was

    conspicuous and improperly positioned long enough for the

    Park District to become aware of it, the court concluded

    that a finding of constructive notice under section 3--

    102(a) was not against the manifest weight of the

    evidence.

         In addition, the appellate court agreed with the

    trial judge that there was no evidence to demonstrate

    that the Park District operated a reasonably adequate

    inspection system. Thus, the trial judge's section 3--

    102(b) finding was not against the manifest weight of the

    evidence.

                          DISCUSSION

         The Park District asks this court to take judicial

    notice of the fact that plaintiff's fall occurred within

    Burnham Park. Assuming we take judicial notice of this

    fact, the Park District argues that it is automatically

    entitled to immunity under section 3--106 because parks

    are by definition "property intended or permitted to be

    used for recreational purposes." Ill. Rev. Stat. 1989,

    ch. 85, par. 3--106. For the reasons that follow, we

    decline to take judicial notice of the location of

    plaintiff's fall.

         Prior to trial, the Park District did not claim in

    its motion to dismiss or in its answer to plaintiff's

    complaint that plaintiff's fall occurred within Burnham

    Park. During trial, the Park District did not claim or

    introduce evidence to demonstrate that plaintiff was

    injured in a park. In fact, the Park District concedes in

    its brief that "no evidence was presented at trial

    technically fixing the situs of plaintiff's injury as a

    sidewalk located in Burnham Park." Furthermore, the Park

    District never asked the trial judge to take judicial

    notice of the fact that plaintiff was injured in Burnham

    Park.

         The Park District in its reply brief in the

    appellate court asked that court to take judicial notice

    that plaintiff was injured in Burnham Park. The appellate

    court declined to do so. The court stated that even if it

    were to take judicial notice of the location of

    plaintiff's fall, the Park District failed to establish

    that plaintiff's fall occurred in an area traditionally

    used for recreational purposes.

         The Park District has waived its contention that

    plaintiff was injured in a park by failing to present

    evidence or seek judicial notice of this fact in the

    trial court. "[I]t is axiomatic that where evidence was

    not offered during the trial of a matter, it cannot be

    introduced for the first time on appeal." H.J. Tobler

    Trucking Co. v. Industrial Comm'n, 37 Ill. 2d 341, 344

    (1967). Also, "[i]t is required that the points argued on

    appeal be commensurate with the issues presented at

    trial." Kravis v. Smith Marine, Inc., 60 Ill. 2d 141, 147

    (1975). Moreover, the Park District's contention that

    plaintiff was injured in a park was raised for the first

    time in its reply brief in the appellate court. Under

    Supreme Court Rule 341(e)(7), points not argued in an

    appellant's brief are waived and shall not be raised in

    the reply brief. 155 Ill. 2d R. 341(e)(7).

         In the alternative, the Park District argues that

    plaintiff's fall occurred on "property intended or

    permitted to be used for recreational purposes." Ill.

    Rev. Stat. 1989, ch. 85, par. 3--106. The evidence shows

    that plaintiff's fall occurred on the walkway of a Park

    District parking lot serving Soldier Field. The Park

    District intended for and permitted football fans to park

    in the lots adjacent to Soldier Field and use the

    walkways to gain access to the stadium. Plaintiff

    possessed a ticket to attend the football game and was

    injured while walking to the game. Thus, the Park

    District argues that the location of plaintiff's fall was

    part of the recreational purpose of Soldier Field. We

    agree.

         In Bubb, we found that section 3--106 "applies if

    public property is intended or permitted to be used for

    recreational purposes, regardless of the primary purpose

    of the property." Bubb, 167 Ill. 2d at 384. Application

    of a section 3--106 defense does not depend only on a

    plaintiff's active engagement in a recreational activity

    at the time of injury. See J. DeAno, Governmental

    Immunities for Recreational Injuries, 82 Ill. B.J. 28,

    28-29 (1994).

         In addition, section 3--106 may apply to facilities

    or structures that increase the usefulness of public

    property intended or permitted to be used for

    recreational purposes. These facilities or structures

    need not be recreational in character for section 3--106

    to apply. See S. Puiszis, Illinois Municipal Tort

    Liability sec. 4--10, at 183 (1996). Although the

    walkways and parking lots adjacent to Soldier Field may

    not be primarily recreational, Soldier Field itself is

    certainly recreational and these facilities increase its

    usefulness. Taken as a whole, we find that Soldier Field

    and its adjacent walkways and parking lots are intended

    or permitted to be used for recreational purposes.

         A review of the legislative history supports our

    conclusion. Prior to 1986, local public entities were

    faced with difficulties affording liability insurance. As

    stated by Senator Rock, legislators were "somewhat

    appalled that counties and park districts and

    municipalities were confronted with the fact that they

    were uninsurable or that the insurance that was offered

    to them was unaffordable." 84th Ill. Gen. Assem., Senate

    Proceedings, June 30, 1986, at 78 (statements of Senator

    Rock).

         The legislature responded to these difficulties by

    enacting Public Act 84--1431 which, among other things,

    amended portions of the Tort Immunity Act. In order to

    decrease the costs of liability insurance, the

    legislature expanded the scope of immunity provided to

    local public entities under section 3--106. The

    legislature accomplished this expansion of immunity by

    abandoning the focus on specific types of public property

    and instead focusing on the intended or permitted use of

    the property.

         Prior to its amendment in 1986, "section 3--106

    immunity was specifically limited to parks, playgrounds,

    and open areas used for recreational purposes." Bubb, 167

    Ill. 2d at 378. Following its amendment, immunity was

    expanded by including "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."

    Pub. Act 84--1431, art. 1, sec. 2, eff. November 25, 1986

    (amending Ill. Rev. Stat. 1985, ch. 85, par. 3--106).

         Thus, under section 3--106 as amended, it is the

    character of the property as a whole that determines

    whether immunity applies. See Bubb, 167 Ill. 2d at 379,

    381 (agreeing with the reasoning of courts that examine

    "the nature of the property as a whole"). In this case,

    an examination of the property as a whole indicates that

    the parking lot in which plaintiff fell was an integral

    part of the Soldier Field recreational facility. We

    therefore believe that the trial judge erred in narrowly

    focusing on only whether the parking lot by itself was

    being used for recreational purposes.

         We note that our conclusion is consistent with the

    Seventh Circuit's decision in Diamond v. Springfield

    Metropolitan Exposition Auditorium Authority, 44 F.3d 599

    (7th Cir. 1995). In Diamond, the plaintiff was on her way

    to a career related conference when she was injured in

    the doorway of an underground tunnel leading to a

    facility used for conventions, shows, and sporting

    events.

         The court stated that section 3--106 immunity

    depends on "the character of the property as a whole,

    rather than whether the injured person was engaged in a

    nonrecreational activity." Diamond, 44 F.3d at 604.

    Because both participants in and spectators of sporting

    events are engaged in recreation (see Diamond, 44 F.3d at

    603), the court found that the facility was permitted to

    be used for recreational purposes (see Diamond, 44 F.3d

    at 604-05). Accordingly, the court concluded that

    plaintiff's negligence action was barred by section 3--

    106.

         Our appellate court has reached similar results. In

    Annen v. Village of McNabb, 192 Ill. App. 3d 711 (1990),

    plaintiff was injured in a restroom located in a park.

    Under section 3--106, the appellate court affirmed the

    dismissal of plaintiff's negligence claim. The court

    stated that "[w]hile a restroom building itself is not

    intended to be used for recreational purposes, it allows

    a park user to continue using the park ***. This

    increases the usefulness of the park and advances the

    legislative purpose." Annen, 192 Ill. App. 3d at 713.

         In Lewis v. Jasper County Community Unit School

    District No. 1, 258 Ill. App. 3d 419 (1994), plaintiff

    was injured by falling against a pumphouse located on a

    school playground. Relying on section 3--106, the

    appellate court affirmed the dismissal of plaintiff's

    negligence claims. The court stated that the "immunity

    provisions of section 3--106 have been held to apply to

    nonrecreational equipment and structures located on

    premises used for recreational activities." Lewis, 258

    Ill. App. 3d at 423.

         Similar results may be found in additional cases.

    See, e.g., Conoway v. Hanover Park Park District, 277

    Ill. App. 3d 896 (1996) (plaintiff was barred from

    recovery when injured by falling into a drainage ditch in

    a park); Hanover Insurance Co. v. Board of Education of

    the City of Chicago, 240 Ill. App. 3d 173 (1992) (worker

    was barred from recovery when injured by slipping on

    cracked concrete in a school playground while performing

    masonry repairs); Kirnbauer v. Cook County Forest

    Preserve District, 215 Ill. App. 3d 1013 (1991)

    (plaintiff was barred from recovery when injured by a

    cable barricade restricting entry to a forest preserve

    access road).

         Because we find that the Park District is not liable

    in actions for negligence in the circumstances presented

    here, we do not address the Park District's additional

    immunity arguments regarding constructive notice under

    section 3--102 nor do we address the Park District's

    argument that parks are automatically entitled to

    immunity under section 3--106.

         We must still dispose of plaintiff's pending motion

    seeking leave to file a first amended complaint under

    Supreme Court Rule 362. 155 Ill. 2d R. 362. The purpose

    of Rule 362 is to amend the pleadings to conform to the

    evidence presented at trial. A movant "must show the

    amendment to be necessary, that no prejudice will result

    to the adverse party if the amendment sought is

    permitted, and that the issues sought to be raised by the

    amendment are supported by the facts in the record on

    appeal." 155 Ill. R. 362(b). "Rule 362 is not a vehicle

    to raise wholly new issues on appeal." Local 165 v.

    Bradley, 149 Ill. App. 3d 193, 213 (1986).

         In plaintiff's motion, she seeks leave to add a

    second count to her complaint alleging that the Park

    District engaged in willful and wanton misconduct. The

    trial had proceeded only on a theory of negligence. In

    fact, plaintiff's attorney stated to the trial court:

    "First of all, I would just like to state again for the

    record this case is based upon [a] theory of negligence,

    and it is not incumbent upon my client in this action to

    prove any willful and wanton conduct on the part of the

    Park District."

         In Griffin v. Darda, 28 Ill. App. 3d 693 (1975),

    plaintiff was a passenger in an automobile that collided

    with another vehicle. Plaintiff filed suit against the

    driver of the automobile in which she was riding.

    Plaintiff alleged the driver was guilty of willful and

    wanton misconduct. Following a bench trial, judgment was

    entered in the driver's favor. On appeal, plaintiff

    sought to amend her complaint to add a count alleging

    negligence against the driver. After citing Rule 362, the

    appellate court stated that the trial below had:

                   "proceeded on the theory that when

                   [plaintiff] was injured, [the driver] was

                   guilty of willful and wanton misconduct.

                   Witnesses were called, cross-examination was

                   conducted, and evidence was presented in

                   accordance with this theory. There is no fact

                   in the record to support the notion that

                   negligence was a theory of the case." Griffin,

                   28 Ill. App. 3d at 696-97.

    The appellate court denied plaintiff's motion seeking

    leave to file an amended complaint.

         In this case, plaintiff proceeded on a theory of

    negligence and specifically stressed that point in the

    trial court. There are no facts in the record which

    indicate that a theory of willful and wanton misconduct

    on the part of the Park District was a theory at trial.

    Like the Park District's request that we take judicial

    notice of the parking lot's location within Burnham Park

    to which the plaintiff objected, plaintiff's attempt to

    amend her complaint comes too late. Plaintiff's motion

    seeking leave to file a first amended complaint is

    denied.

                          CONCLUSION

         For the foregoing reasons, we find that the Park

    District is entitled to immunity under section 3--106 of

    the Tort Immunity Act. Accordingly, we reverse the

    judgments of the appellate and trial courts. In addition,

    we deny plaintiff's motion seeking leave to file a first

    amended complaint.

    Judgments reversed.

                                                                     CHIEF JUSTICE FREEMAN, specially concurring:

         My colleagues hold that plaintiff's fall occurred on

    "property intended or permitted to be used for

    recreational purposes" as provided in section 3--106 of

    the Local Governmental and Governmental Employees Tort

    Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1989,

    ch. 85, par. 3--106). Therefore, they find that the Park

    District is not liable for injuries which the plaintiff

    sustained. I concur with the majority's conclusion that

    the property on which plaintiff fell is intended or

    permitted to be used for recreational purposes. However,

    I believe that the majority's application of the

    increased usefulness test will provide broader immunity

    than the legislature intended.

         Specifically, the majority asserts that the Park

    District intended for and permitted football fans to park

    in the lots adjacent to Soldier Field and use the

    walkways to gain access to the stadium. Because plaintiff

    possessed a ticket to attend the football game and was

    injured while walking to the game, the majority concludes

    that the location of plaintiff's fall was part of the

    recreational purpose of Soldier Field.

         The majority bases its reasoning on appellate court

    cases which have held that, taken as a whole, a facility

    or structure will be considered to fall within the scope

    of section 3--106 if it increases the usefulness of

    public property intended or permitted to be used for

    recreational purposes. See Conoway v. Hanover Park Park

    District, 277 Ill. App. 3d 896, 900 (1996); Kirnbauer v.

    Cook County Forest Preserve District, 215 Ill. App. 3d

    1013, 1022-23 (1991). This test was first espoused in

    Annen v. Village of McNabb, 192 Ill. App. 3d 711 (1990).

    In Annen, the plaintiff was using a restroom located

    within a park when a sink fell from a wall, seriously

    injuring her. The court found that the purpose of section

    3--106 manifested an intent to include restroom

    facilities within a park as part of the park itself. The

    court stated:

                   "A restroom facility located within a

                   park is a part of the park. While a restroom

                   building itself is not intended to be used for

                   recreational purposes, it allows a park user

                   to continue using the park without having to

                   leave the park to use restroom facilities.

                   This increases the usefulness of the park and

                   advances the legislative purpose." Annen, 192

                   Ill. App. 3d at 713.

    The majority in the instant case adopts the reasoning in

    Annen and concludes that, "[a]lthough the walkways and

    parking lots adjacent to Soldier Field may not be

    primarily recreational, Soldier Field itself is certainly

    recreational and these facilities increase its

    usefulness." Slip op. at 7.

         Although the increased usefulness test provides a

    fairly straightforward means to determine whether certain

    property is subject to section 3--106 immunity, I do not

    believe that the test should be so mechanically applied

    such that any consideration of the injured party's use of

    the property is ignored. In fact, we considered limiting

    the scope of the "increased usefulness" test in Bubb,

    where we stated:

              "Providing immunity to any public property

                   where recreation might occur would eviscerate

                   the duty codified in section 3--102. *** [A]t

                   some point, the use of public property for

                   recreation may be so incidental that section

                   3--106 does not apply." Bubb v. Springfield

                   School District 186, 167 Ill. 2d 372, 382

                   (1995).

         I believe that this case is one in which plaintiff's

    use of the property was so incidental that section 3--106

    should not apply. The record reveals that the plaintiff

    parked her car in the McCormick Place parking lot,

    approximately one mile from Soldier Field. However, the

    injury occurred as she was crossing the south parking

    lot, which is located across the street from Soldier

    Field. The parking lot where plaintiff was injured does

    increase the usefulness of Soldier Field; the lot

    provides convenient parking for the public. However,

    plaintiff's actual use of the property was incidental, as

    she was merely walking across the lot to reach Soldier

    Field. It is only happenstance that the lot is available

    to increase the use of Soldier Field. Plaintiff's

    presence on the lot had nothing to do with the lot's

    availability for parking. Plaintiff merely chose the lot

    as the path by which she could access Soldier Field. Had

    plaintiff chosen a different path to access Soldier

    Field, that property, simply because it provided

    convenient access, would not merit section 3--106

    immunity.

         I do not believe that the legislature intended to

    expand the scope of section 3--106 to provide immunity to

    governmental units for use that is merely incidental to

    the purpose of the property. For all practical purposes,

    unless the increased usefulness test is limited in its

    application and scope, the duty of a governmental unit to

    exercise even ordinary care will be diminished.

         JUSTICE HARRISON, dissenting:

         I agree with Justice Freeman's conclusion that

    section 3--106 should not apply to this case.  In my

    view, however, this conclusion must yield a different

    result. Because the Park District is not entitled to

    immunity under section 3--106, there is no basis for

    disturbing the judgments of the circuit and appellate

    courts, and those judgments should be affirmed.

    Accordingly, I dissent.

         JUSTICE NICKELS, also dissenting:

         Plaintiff was injured when she fell upon a walkway

    which is adjacent to a Soldier Field parking lot. The

    majority finds the Park District immune from liability

    for plaintiff's injuries under section 3--106 of the

    Local Governmental and Governmental Employees Tort

    Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1989,

    ch. 85, par. 3--106), because plaintiff's fall occurred

    on property intended or permitted to be used for

    recreational purposes. Because I cannot concur with the

    majority's conclusion in this case, I respectfully

    dissent.

         The legislature codified the general duty of a local

    public entity to use ordinary care to maintain public

    property in section 3--102 of the Tort Immunity Act (Ill.

    Rev. Stat. 1989, ch. 85, par. 3--102). However, section

    3--106, on which the majority relies, provides a public

    entity with an affirmative defense, which, if properly

    raised and proven, bars a plaintiff's right to recovery.

    Bubb v. Springfield School District 186, 167 Ill. 2d 372,

    378 (1995). Section 3--106 provides in pertinent part

    that a local public entity shall not be 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. Ill. Rev. Stat.

    1989, ch. 85, par. 3--106. Whether public property is

    intended or permitted to be used for a recreational

    purpose within the meaning of section 3--106 requires a

    case-by-case examination of the nature of the property

    involved. Bubb, 167 Ill. 2d at 384.

         The majority agrees with the Park District's

    contentions that the parking lots and walkways adjacent

    to Soldier Field were intended to be used by football

    fans on their way to games at the stadium. They agree

    that, because plaintiff possessed a ticket to a football

    game and was injured while walking to the game, the

    walkway where plaintiff fell was part of the recreational

    purpose of Soldier Field.

         In coming to this conclusion, the majority relies on

    appellate court cases which hold that section 3--106

    immunity may apply to a facility or structure that

    increases the usefulness of public property intended or

    permitted to be used for recreational purposes. I believe

    the majority's holding is an unwarranted expansion of

    immunity to public entities which far exceeds the

    legislature's intent.

         First, the appellate court cases on which the

    majority relies are readily distinguishable. Unlike the

    instant case, the plaintiffs in all those cases were

    barred from recovery under the Tort Immunity Act because

    their injuries occurred while they were actually within

    a recreational facility. See Bubb, 167 Ill. 2d at 382

    (plaintiff injured on school property designated as part

    of the playground); Conoway v. Hanover Park Park

    District, 277 Ill. App. 3d 896, 900 (1996) (plaintiff

    injured in drainage ditch in a park); Lewis v. Jasper

    County Community Unit School District No. 1, 258 Ill.

    App. 3d 419, 420 (1994) (plaintiff injured on a pumphouse

    inside a playground); Hanover Insurance Co. v. Board of

    Education, 240 Ill. App. 3d 173, 174 (1992) (plaintiff

    injured on cracked concrete of a playground); Annen v.

    Village of McNabb, 192 Ill. App. 3d 711, 713 (1990)

    (plaintiff injured in restroom within a park); Diamond v.

    Springfield Metropolitan Exposition Auditorium Authority,

    44 F.3d 599 (7th Cir. 1995) (plaintiff injured in tunnel

    that was part of a convention center).

         Furthermore, in Bubb and Diamond, neither court was

    concerned with whether the site of the plaintiff's injury

    increased the usefulness of the recreational property. In

    Bubb, at issue was whether the sidewalk where plaintiff

    was injured was intended and permitted to be used as part

    of the playground and, therefore, was within the scope of

    section 3--106. See Bubb, 167 Ill. 2d at 382-83. In

    Diamond, the issue before the court was whether the

    convention center where plaintiff was injured could be

    considered recreational property because it sponsored

    recreational as well as nonrecreational events. See

    Diamond, 44 F.3d at 604.

         Moreover, that plaintiff in the instant case was

    injured while walking to the stadium to attend a football

    game should not influence the determination of whether

    the locale of her injury was recreational property.

    Immunity under section 3--106 "depends on the character

    of the property in question, not the activity performed

    at any given time." Bubb, 167 Ill. 2d at 379; see also

    Larson v. City of Chicago, 142 Ill. App. 3d 81, 87 (1986)

    (immunity did not apply to a roller skating injury on a

    public sidewalk because a public sidewalk is not

    recreational property like a park or playground); John v.

    City of Macomb, 232 Ill. App. 3d 877, 880 (1992)

    (immunity did not apply to an injury suffered at a band

    concert on a courthouse lawn because permitting that

    recreational activity did "not so alter the character of

    a public area not generally used for recreational

    activity that it would necessarily fall within the

    intended scope of section 3--106").

         The 1986 amendment to the Tort Immunity Act

    evidences the legislature's intent to expand the scope of

    section 3--106 to include within its coverage any

    recreational property similar in nature to the types of

    properties listed in the statute. Bubb, 167 Ill. 2d at

    378, citing Bonfield v. Jordan, 202 Ill. App. 3d 638, 645

    (1990). However, unlike the majority, I do not believe

    that the legislature intended to provide immunity for all

    property that surrounds a recreational facility and

    which, incidentally, accommodates the public's use of the

    recreational facility.

         As noted earlier, local public entities have a

    general statutory duty to exercise ordinary care to

    maintain public property. See Ill. Rev. Stat. 1989, ch.

    85, par. 3--102. This court, when construing a

    legislative act, should consider each section in

    connection with other sections. Castaneda v. Illinois

    Human Rights Comm'n, 132 Ill. 2d 304, 318 (1989).

    Although section 3--106 of the Tort Immunity Act provides

    immunity for recreational property, providing immunity to

    any public property which somehow accommodates or make

    more convenient the use of other public recreational

    property would totally eviscerate the duty codified in

    section 3--102. Cf. Bubb, 167 Ill. 2d at 382.

         I believe that the use of a walkway adjacent to a

    Soldier Field parking lot is a mere convenience and is so

    incidental that it simply cannot be considered property

    intended or permitted to be used for recreational

    purposes. For the foregoing reasons, I would affirm the

    judgment of the appellate court.

         JUSTICE HARRISON joins in this dissent.