Foust v. Forest Preserve District , 2016 IL App (1st) 160873 ( 2016 )

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Appellate Court Date: 2016.12.19
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Foust v. Forest Preserve District, 2016 IL App (1st) 160873Appellate Court JOE FOUST, as Administrator of the Estate of Molly Anne Glynn,
Caption Deceased, Plaintiff-Appellee and Cross-Appellant, v. THE FOREST
PRESERVE DISTRICT OF COOK COUNTY, Defendant-Appellant
and Cross-Appellee.
District & No. First District, Fifth Division
Docket Nos. 1-16-0873, 1-16-0874 cons.
Filed September 30, 2016
Rehearing denied November 18, 2016
Decision Under Appeal from the Circuit Court of Cook County, No. 2014-L-011513;
Review the Hon. William E. Gomolinski, Judge, presiding.
Judgment Certified questions answered.
Counsel on Robert L. Baker, of Forest Preserve District of Cook County, of
Appeal Chicago, for appellant.
Debra I. Crystal, of Chicago, and Joseph A. Terc, of Arlington
Heights, for appellee.
Panel PRESIDING JUSTICE GORDON delivered the judgment of the
court, with opinion.
Justices Hall and Reyes concurred in the judgment and opinion.
OPINION
¶1 The instant consolidated interlocutory appeals arise from plaintiff’s lawsuit against
defendant, the Forest Preserve District of Cook County, after the death of Molly Anne Glynn, a
woman who was killed when she was struck by a tree limb while riding her bicycle on one of
defendant’s paved bicycle paths. After defendant filed a motion to dismiss based on immunity
under four sections of the Local Governmental and Governmental Employees Tort Immunity
Act (745 ILCS 10/1-101 et seq. (West 2012)), the trial court found that defendant was immune
from liability for its negligent conduct under one section, but that it was not immune under the
other three sections. The trial court certified two questions concerning immunity for review
pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 1, 2015), and each party filed a petition
for leave to appeal concerning one of the two questions. We allowed both petitions for leave to
appeal and consolidated the two appeals. For the reasons that follow, we now answer the trial
court’s first certified question in the affirmative and the second certified question in the
negative.
¶2 BACKGROUND
¶3 I. Complaint
¶4 On February 17, 2015, plaintiff filed a four-count amended complaint against defendant,
alleging that on September 5, 2014, decedent Molly Anne Glynn was riding her bicycle
through Erickson Woods1 on a bicycle path owned and maintained by defendant. According to
the complaint, “[o]n September 5, 2014, and for a long time prior thereto, there existed trees,
shrubs and other vegetation in close proximity to the edges of the bike path.” While decedent
was operating her bicycle, “a large section of diseased, defective and weakened tree broke
off[,] crashing towards the ground and striking” decedent, who died the next day from her
injuries.
¶5 Count I of the complaint was a survival action for negligence and alleged that defendant
was negligent in (1) failing to adequately inspect the trees, shrubs, and vegetation along the
bicycle path “when it knew or should have known that some of the trees, shrubs or vegetation
presented a risk to persons using the bike path”; (2) failing to inspect the trees, shrubs, and
vegetation for signs of disease or other weakened conditions “that could result in trees or
portions of trees, shrubs or vegetations falling onto the bike path”; (3) failing to prune, trim, or
remove diseased or otherwise weakened trees, shrubs, or vegetation or parts thereof “that were
located adjacent to and in close proximity to the bike path”; (4) failing to maintain the property
free from unreasonable risks to persons using the bicycle path; (5) disregarding notice of
deceased or otherwise weakened trees, shrubs, or vegetation or parts thereof “that were located
adjacent to and in close proximity to the bike path”; (6) failing to properly inspect or maintain
trees, shrubs, or vegetation after receiving notice of the dangerous conditions of the trees,
shrubs, or vegetation “near the bike path”; (7) failing to provide a safe means of ingress and
egress from the bicycle path; (8) failing to give adequate warning to users of the bicycle path
despite having notice of the presence of trees, shrubs, and vegetation that were diseased or
1
The complaint describes Erickson Woods as “a forest preserve grove which was located in Cook
County between Tower Road on the north, Willow Road on the south and on the east side of the Edens
Expressway.”
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weakened; and (9) failing to barricade or otherwise prevent the use of the bicycle path in the
area where trees, shrubs, and vegetation were diseased or weakened despite having notice of
the presence of such trees, shrubs, or vegetation. Count I alleged that as a result of such
negligent acts, decedent “was struck by a tree, shrub or vegetation or a limb or part thereof that
was located adjacent to and in close proximity to the bike path causing her to suffer injuries
and damages including conscious pain and suffering prior to her death on September 6, 2014.”
¶6 Count II was a wrongful death action for negligence and contained similar allegations as
count I, except that it alleged that decedent left her husband (the administrator of her estate and
the plaintiff in the instant case) and her two children as her survivors.
¶7 Count III was a survival action alleging willful and wanton conduct on the part of
defendant. Count III included similar allegations to counts I and II, except it added allegations
that defendant had inspected the trees, shrubs, and vegetation along the bicycle path in
Erickson Woods, including the tree that struck decedent, and knew that there were trees,
shrubs, or other vegetation that were diseased or otherwise weakened and presented a risk of
harm to persons using the bicycle path and placed “X’s” on those trees. Count III alleged that
defendant’s inspection included all of the trees, shrubs, and other vegetation in the area within
50 feet of the place where decedent was injured. Count III enumerated the same problems with
defendant’s conduct as in counts I and II, except that count III alleged that defendant engaged
in its conduct “[w]ith an utter indifference and a conscious disregard for the safety of the public
and Molly Anne Glynn.”
¶8 Finally, count IV was a wrongful death action alleging willful and wanton conduct on the
part of defendant. Count IV was similar to count III, except it alleged that decedent left her
husband and her two children as her survivors.
¶9 II. Motion to Dismiss
¶ 10 On March 10, 2015, defendant filed a motion to dismiss the complaint pursuant to section
2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2014)), arguing
that defendant was immune from liability pursuant to sections 3-107(b), 2-201, 3-104, and
3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort
Immunity Act) (745 ILCS 10/3-107(b), 2-201, 3-104, 3-106 (West 2012)). Only immunity
pursuant to sections 3-107(b) and 3-106 are at issue on the instant appeal, so we relate the
parties’ arguments concerning only those sections.
¶ 11 With respect to section 3-107(b), which provides immunity for an injury caused by a
condition of “[a]ny hiking, riding, fishing or hunting trail” (745 ILCS 10/3-107(b) (West
2012)), defendant argued that “plaintiff’s Amended Complaint is solely and unambiguously
based upon the condition of the Trail, namely the presence of weakened trees along the Trail.”
Defendant further argued that the character of the trail established it as a “riding trail” under
section 3-107(b). Accordingly, defendant argued that the section 3-107(b) immunity applied.
¶ 12 With respect to section 3-106, which provides immunity for ordinary negligence claims2
“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” (745 ILCS 10/3-106 (West
2
The section 3-106 immunity does not extend to claims of injury based on willful and wanton
conduct. 745 ILCS 10/3-106 (West 2012).
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2012)), defendant argued that counts I and II should be dismissed because the trail was
intended and permitted to be used for recreational purposes.
¶ 13 Attached to defendant’s motion to dismiss was the affidavit of John McCabe, the director
of defendant’s department of resource management and a certified arborist. McCabe identified
the bicycle path in question as defendant’s North Branch Paved Trail, which was open to the
public daily from dawn until dusk for hiking, jogging, dog walking, cross country skiing, inline
skating, and bicycling, as well as providing access to natural areas for fishing, canoeing, and
bird watching. McCabe stated that the trail extended from Dundee Road on the north to Devon
Avenue on the south, a total distance of approximately 20 miles, and wound through forested
areas, the Skokie Lagoons, and along the north branch of the Chicago River. McCabe indicated
that defendant’s statutory mission was to acquire and hold lands “ ‘for the purpose of
protecting and preserving the flora, fauna, and scenic beauties within such district *** as
nearly as may be, in their natural state and condition, for the purpose of the education, pleasure,
and recreation of the public’ ” (quoting 70 ILCS 810/7 (West 2012)), and that in managing the
“flora, fauna, and scenic beauties of the District,” defendant exercised its discretion in deciding
how to best manage those resources “consistent with its statutory mission and in a fiscally
responsible manner.” McCabe stated that “[t]here is no regulation or legal authority which
mandates or prescribes the manner of tree inspection, pruning or removal for property like the
District.”
¶ 14 In his response to defendant’s motion to dismiss, plaintiff argued that section 3-107(b)
immunity was not applicable because the tree at issue was adjacent to the trail and was
therefore not a “condition of the trail” itself, as required for immunity under the section.
Plaintiff further argued that section 3-106 immunity did not apply because the tree in question
was located 7½ feet from the trail in a thickly forested area where recreation was not intended
or permitted.
¶ 15 Attached to plaintiff’s response was the affidavit of D. Logan Nelson, a registered
consulting arborist, who stated that the black locust tree that struck the decedent was growing
in a “naturalized, non-recreational, woodland setting” and that the crown of the tree forked into
two large limbs, one growing straight up and one that was overhanging the trail. Nelson opined
that, based on her assessment of the tree, “there were obvious structural defects that, when
assessed for tree failure probability, the conclusions would be that branch failure would be
imminent.” Nelson opined that the “structural defects” of the tree “include[d] a combination of
compounding stresses that made tree failure imminent: the black locust species is prone to
breakage, the architecture of the heavy and over-reaching branch overhanging the trail was
poor, and the branch union of the subject tree trunk and the branch that hit Molly Glynn was
seriously compromised and weakened by included bark and decay.” Nelson further opined that
“the consequences of the impact to target should have been assessed as great and valuable. The
compounding combination of the location of the subject locust, the architecture of the long and
heavy branch extending across the width of a paved and inviting path to frequent users (i.e.
walkers, joggers, roller bladers, bicyclists, etc.) establishes that if branch failure occurred, the
target below would be the paved path and perhaps pedestrians who frequently use the subject
trail.” Nelson opined that “[b]ased upon the standards criteria and accepted practices, the
subject black locust presented an immediate hazard and should have been removed within
twenty-four hours; as it constituted a hazard, the tree was already marked as such, hence there
was no option for discretion with regards to eliminating the hazard.”
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¶ 16 Defendant filed a reply, again arguing that defendant was immune from liability. Attached
to its reply was a transcript from the discovery deposition 3 of McCabe, the director of
defendant’s department of resource management. In his deposition, McCabe testified that a
tree that was seven and a half feet from a paved trail would have an effect on the trail in a few
ways: by providing shade to the trail, by “look[ing] nice” from an aesthetic perspective, and by
serving as a habitat for animals and birds. McCabe acknowledged that these aspects might not
affect whether someone was physically able to use the trail, but testified that they would
“probably [affect] why they are going up or down the trail.” McCabe further testified that
shade could affect someone’s physical use of the trail in that “they could be riding along, and
all of a sudden it’s shady and then all of a sudden it’s very bright, and they may not be able to
see very clearly and might go off the trail and hit a tree”; McCabe gave an additional example
of the sun or shade affecting how quickly the trail dried after it rained, making some areas of
the trail more slippery than others. McCabe further testified that other effects that trees could
have on trails would be leaves blowing off trees, branches or limbs falling, or berries, nuts, or
seeds falling from the trees.
¶ 17 McCabe testified that the tree that struck the decedent was marked by defendant for
removal for two reasons. The main reason was the tree’s “architecture, or what we call growth
form of the tree,” and the secondary reason was the fact that it was a black locust tree, a species
of tree that was a “lower value tree” that would have been “just easier to remove the whole tree,
rather than have the tree pruned.” As to the tree’s architecture, McCabe explained that “from
the way that the tree was growing, the vast majority of the crown[4] of the tree was growing out
over the trail[.] *** [T]he tree is not going to *** straighten itself out. The crown continues to
grow. Over the years, that crown is only going to get heavier, and it could create issues with
bikers being able to get under the tree, or ultimately causing the tree to potentially fail.” The
tree was marked in approximately mid-August 2014.
¶ 18 III. Trial Court Order
¶ 19 On December 16, 2015, the trial court denied defendant’s motion to dismiss as to sections
3-107(b), 2-201, and 3-104 of the Tort Immunity Act. However, the trial court granted the
motion to dismiss as to section 3-106 of the Tort Immunity Act, which applied to only counts I
and II of the complaint, which concerned negligence, and did not affect counts III and IV,
which concerned willful and wanton conduct. With respect to section 3-106, the court found
that “[t]his is definitely recreational use. It’s in such close proximity to that path that people
can look at it; they can see it; they can appreciate it. They can do what they want to do with it
and enjoy the beauty and the nature part of it. If that’s not recreational, I don’t know what
would be.”
¶ 20 On January 15, 2016, plaintiff filed a motion to reconsider the court’s dismissal of counts I
and II of the complaint, which was denied on March 8, 2016. During the hearing on the motion
3
The parties engaged in limited discovery solely concerning the issues raised in the motion to
dismiss.
4
McCabe explained that “[t]he crown of the tree entails the top part of the tree, the branching
structure[.] *** [F]rom an arborist’s perspective, when you refer to the crown of the tree, you’re
generally talking about the bowl of the tree, you know, the majority of the limbs and leaders of the
particular tree.”
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to reconsider, the trial court noted that, with respect to section 3-106, “the path was used for
recreational purposes, and this tree abutted the path and hung over the path and it became part
of the path.” On the same day, the trial court entered an order certifying the following two
questions of law:
“1) Does a tree whose base is located about seven feet from the edge of a forest
preserve bicycle path, and that has a limb overhanging the approximate width of the
path which breaks off and falls onto a cyclist on the path, constitute a condition of
property intended or permitted to be used for recreational purposes pursuant to Section
3-106 of the Tort Immunity Act?
2) Does a tree whose base is located about seven feet from the edge of a forest
preserve bicycle path, and that has a limb overhanging the approximate width of the
path which breaks off and falls onto a cyclist on the path, constitute a condition of a
trail pursuant to Section 3-107(b) of the Tort Immunity Act?”
¶ 21 Defendant filed a petition for leave to appeal the second certified question pursuant to
Illinois Supreme Court Rule 308 (eff. Jan. 1, 2015), and plaintiff filed a separate petition for
leave to appeal the first certified question. We allowed both appeals and consolidated them on
June 20, 2016.
¶ 22 ANALYSIS
¶ 23 Illinois Supreme Court Rule 308 (eff. Jan. 1, 2015) provides a remedy of permissive appeal
from interlocutory orders where the trial court has deemed that they involve a question of law
as to which there is substantial ground for difference of opinion and where an immediate
appeal from the order may materially advance the ultimate termination of the litigation. We
apply a de novo standard of review to legal questions presented in an interlocutory appeal
brought pursuant to Rule 308. Simmons v. Homatas, 236 Ill. 2d 459, 466 (2010). De novo
consideration means we perform the same analysis that a trial judge would perform. Khan v.
BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011). On appeal, we are asked to consider two
questions, both concerning whether defendant is immune from liability for the decedent’s
death.
¶ 24 “[L]ocal public entities, in general, have a duty to exercise ordinary care to maintain public
property in a reasonably safe condition.” Bubb v. Springfield School District 186, 167 Ill. 2d
372, 377 (1995). This duty has been codified in section 3-102 of the Tort Immunity Act, which
provides that “a local public entity has the duty to exercise ordinary care to maintain its
property in a reasonably safe condition for the use in the exercise of ordinary care of people
whom the entity intended and permitted to use the property in a manner in which and at such
times as it was reasonably foreseeable that it would be used, and shall not be liable for injury
unless it is proven that it has actual or constructive notice of the existence of such a condition
that is not reasonably safe in reasonably adequate time prior to an injury to have taken
measures to remedy or protect against such condition.” 745 ILCS 10/3-102(a) (West 2012).
Section 3-102 did not create a new duty but codified a duty that existed at common law; “[t]he
legislature created no new duties when it enacted the Tort Immunity Act.” Bubb, 167 Ill. 2d at
378. Instead, in enacting the Tort Immunity Act, the legislature “created only immunities and
defenses.” Bubb, 167 Ill. 2d at 378. In providing such immunities and defenses, “the legislature
sought to prevent the diversion of public funds from their intended purpose to the payment of
damage claims.” Bubb, 167 Ill. 2d at 378. It is two of those immunities that we consider on
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appeal.
¶ 25 I. Section 3-106
¶ 26 The first question certified by the trial court asks whether “a tree whose base is located
about seven feet from the edge of a forest preserve bicycle path, and that has a limb
overhanging the approximate width of the path which breaks off and falls onto a cyclist on the
path, constitute a condition of property intended or permitted to be used for recreational
purposes pursuant to Section 3-106 of the Tort Immunity Act?”
¶ 27 Under section 3-106 of the Tort Immunity Act, “[n]either 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.” 745 ILCS 10/3-106 (West 2012).
¶ 28 The parties do not dispute that the path itself, which the decedent was using at the time the
tree limb struck her, constitutes recreational property. However, plaintiff argues that the tree
from which the limb fell was located on property that was not intended or permitted to be used
for recreational purposes, making the section 3-106 immunity inapplicable. By contrast,
defendant argues both (1) that defendant’s property as a whole was intended or permitted for
recreational use, including the area in which the tree was located and (2) that the tree was a
condition of the path, which was undisputedly recreational property. We note that the question
of whether the tree was a condition of the path itself is the primary focus of the second certified
question on appeal, and we will, accordingly, analyze that issue in depth below.5 We therefore
focus our analysis on the question of whether defendant is entitled to section 3-106 immunity if
the tree is not considered to be a condition of the path.
¶ 29 A. Supreme Court Case Law
¶ 30 Our supreme court has spoken several times on the issue of immunity under section 3-106
of the Tort Immunity Act. In Bubb v. Springfield School District 186, 167 Ill. 2d 372, 377
(1995), the supreme court for the first time analyzed the meaning of “ ‘public property
intended or permitted to be used for recreational purposes’ ” (quoting Ill. Rev. Stat. 1989, ch.
85, ¶ 3-106) under section 3-106 when it considered whether a school district was immune
from liability when a child was injured on a sidewalk surrounding a school building that was
adjacent to an area that the schoolchildren used as a playground. The court discussed appellate
court opinions that had construed this language and agreed with those courts that had
concluded that it was “the character of the property in question, not the activity performed at
any given time” that determined whether immunity applied. Bubb, 167 Ill. 2d at 379. Such a
determination “should be based on a case-by-case examination of the nature of the property
and its past use.” Bubb, 167 Ill. 2d at 384.
¶ 31 In reversing the appellate court, the supreme court determined that the appellate court’s
concerns about expansive interpretation of section 3-106 were unfounded, noting that it “[did]
not believe that section 3-106 applies to any public area where recreation might occur. The
5
As defendant points out, if we determine that the tree was, in fact, a condition of the path, section
3-106 immunity would apply, as the path is undisputedly recreational property.
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statute contains a specific list of recreational property to which the statute applies. This list
suggests that the statute applies to recreational property that is similar in nature to that
contained in the statute.” Bubb, 167 Ill. 2d at 381. The court further noted that “at some point,
the use of public property for recreation may be so incidental that section 3-106 does not
apply.” Bubb, 167 Ill. 2d at 382. Nevertheless, the supreme court found that the property at
issue in the case before it was recreational, as the facts demonstrated that the school intended
for children to use the property as part of the school playground. Bubb, 167 Ill. 2d at 382. The
court acknowledged that the primary purpose of the property may not have been recreational
but noted that “[p]ublic property may have more than one intended use” (Bubb, 167 Ill. 2d at
383) and later again stated that “[t]he statute 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).
¶ 32 Two years later, the supreme court expanded the interpretation of section 3-106 in
Sylvester v. Chicago Park District, 179 Ill. 2d 500 (1997), when it found that the defendant
park district was immune from liability when the plaintiff was injured after tripping on a “car
stop” located on a walkway adjacent to a Soldier Field parking lot on her way to attend a
Chicago Bears football game. In its analysis, the supreme court reiterated the Bubb court’s
holding that section 3-106 applied if public property was intended or permitted to be used for
recreational purposes, regardless of the primary purpose of the property. Sylvester, 179 Ill. 2d
at 508 (citing Bubb, 167 Ill. 2d at 384). However, the Sylvester court then stated that, “[i]n
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.” Sylvester, 179 Ill.
2d at 508. The court found 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. 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.”
Sylvester, 179 Ill. 2d at 508. The court noted that section 3-106 had been amended in 1986 to
expand the scope of immunity, and “[t]hus, under section 3-106 as amended, it is the character
of the property as a whole that determines whether immunity applies.” Sylvester, 179 Ill. 2d at
509. The court found that “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.” Sylvester, 179 Ill. 2d at 509-10.
¶ 33 Most recently,6 in Rexroad v. City of Springfield, 207 Ill. 2d 33 (2003), the supreme court
distinguished Sylvester from the situation present in Rexroad, where a student was injured in a
parking lot that served the entire school, as well as the school’s football field, which was being
used during summer practice sessions. The Rexroad court found Sylvester distinguishable
because “Soldier Field’s adjacent parking lots and walkways served to benefit Soldier Field
only and thus increased the usefulness of the stadium. Here, in contrast, the high school
6
We note that the supreme court discussed section 3-106 again in 2012, in Moore v. Chicago Park
District, 2012 IL 112788. However, that case involved the interpretation of the section 3-106 immunity
for “ ‘a condition of any public property’ ” (Moore, 2012 IL 112788, ¶ 1), and not the question of
whether property is recreational.
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parking lot provided access to several different areas of the school not used for recreational
purposes. The parking lot in question is different from the parking lot in Sylvester and a
different analysis applies.” Rexroad, 207 Ill. 2d at 41-42. The Rexroad court determined that
the situation present was more analogous to Bubb, where the court had recognized that the use
of public property for recreation may be so incidental that section 3-106 did not apply.
Rexroad, 207 Ill. 2d at 43. The court found that “any recreational use of the parking lot in
question was so incidental that section 3-106 does not apply. The parking lot served the entire
school and only incidentally the football practice field. Moreover, the record does not indicate
that the lot had been used for recreation prior to the date of the incident or that recreation had
ever been encouraged there.” Rexroad, 207 Ill. 2d at 43. Thus, the court concluded that the
section 3-106 immunity did not apply, noting that “[i]f we were to accept defendants’
argument, we would be effectively immunizing large amounts of otherwise nonrecreational
school property simply because it is located near recreational school property” and the school
would, accordingly, owe no duty of reasonable care to students parking their vehicles and
walking to their classes, which the court found the General Assembly could not have intended.
Rexroad, 207 Ill. 2d at 43.
¶ 34 B. Application of Section 3-106
¶ 35 In considering whether section 3-106 immunized defendant in the case at bar, plaintiff
argues that the area in which the tree that struck the decedent was located was not intended or
permitted to be used for recreational purposes. As an initial matter, plaintiff repeatedly claims
that we have previously held that only 10% of defendant’s property was used for recreational
purposes, citing Belton v. Forest Preserve District, 407 Ill. App. 3d 409 (2011). While plaintiff
does not provide a precise citation for his claim, our review of Belton indicates that the only
reference to the 10% figure cited by plaintiff was the Belton court’s statement in its recitation
of the facts that two of defendant’s employees had testified in discovery depositions that
“[o]nly about 10% of the District’s property holdings were for recreational use, such as
picnicking, and in the other areas the District normally adhered to its statutory mission to
preserve, protect, and restore natural areas by allowing vegetation to remain undisturbed as a
habitat for fungi, birds, and insects.” Belton, 407 Ill. App. 3d at 411. This figure is not repeated
or alluded to anywhere in the court’s analysis. Thus, plaintiff’s claim that we “must take
judicial notice of that finding” is not persuasive.7
¶ 36 We also are not persuaded by plaintiff’s extremely narrow view of the “area” involved in
the case at bar. Plaintiff argues that the tree was “in a thick wooded, forested area” that was not
intended or permitted to be used for recreational purposes, pointing to photographs that he
7
We also agree with defendant that Belton is distinguishable on the merits, despite plaintiff’s
contention that the case was “remarkably similar” to the case at bar, because the plaintiff in that case
was not on the defendant’s property at the time he was struck by a tree and the court found his status as
a nonuser of the defendant’s property to be dispositive. Belton, 407 Ill. App. 3d at 424-25 (“Because
this statute concerns property ‘used for recreational purposes’ and the fact that the District cites only
cases involving users of public property rather than nonusers like Belton, we conclude section 3-106 is
inapplicable. [Citation.] People who are injured within the boundaries of public property due to a
condition of the property are not like Belton who was merely driving by the District’s Green Lake site
on a non-District roadway when the District’s tree collapsed onto that adjacent land.” (quoting 745
ILCS 10/3-106 (West 2004))).
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attached as exhibits to his brief in opposition to defendant’s motion to dismiss. However, the
parties, the record—and the certified question itself—indicate that the tree was located
approximately seven and a half feet from the path, and the photographs clearly show the tree’s
proximity to the path and that the grass along the path was mown up to a few feet from the tree.
Plaintiff’s complaint also emphasizes the close proximity of the tree to the path, referring to its
location a number of times as being “adjacent to” the path and in “close proximity” to the path.
While the tree is certainly located amongst other trees, it can hardly be characterized as being
in “its natural, undisturbed vegetative state,” as plaintiff claims, especially since it is
undisputed that defendant engaged in tree trimming in the area and had, in fact, marked that
very tree for future removal. Furthermore, our supreme court has instructed that “it is the
character of the property as a whole that determines whether immunity applies.” Sylvester, 179
Ill. 2d at 509. Thus, plaintiff’s focus on the tree itself and the few feet surrounding it is
extremely narrow and does not take into consideration the property as a whole. Indeed,
plaintiff’s interpretation of the “area” at issue is so narrow in scope that it does not even
encompass the perimeter of the tree itself—the basis of the entire case is the fact that the tree
itself extended over the path, which resulted in the decedent’s injury and, ultimately, her death.
¶ 37 On the other hand, we are also not persuaded by defendant’s argument that “the District’s
property when considered as a whole” had a recreational character and, therefore, it was
immune. A blanket characterization of all of defendant’s holdings8 as recreational would have
the effect of swallowing the duty of ordinary care set forth in section 3-102 of the Tort
Immunity Act. See Bubb, 167 Ill. 2d at 382 (“Section 3-106 provides immunity for recreational
property. Providing immunity to any public property where recreation might occur would
eviscerate the duty codified in section 3-102.”). Thus, while we agree with defendant that we
must consider the character of the property as a whole, the “property” we are considering is
something more than the single tree at issue but less than the entire forest preserve.
¶ 38 In plaintiff’s complaint, he identifies the tree at issue as being located in Erickson Woods,
“a forest preserve grove which was located in Cook County between Tower Road on the north,
Willow Road on the south and on the east side of the Edens Expressway.” Thus, it is
reasonable to consider Erikson Woods as the “property” that must be analyzed to determine its
character. According to the brochure attached to McCabe’s affidavit, Erickson Woods was
suitable for the following activities: picnicking, hiking, cycling, inline skating, cross-country
skiing, and fishing, and the area was a “birding hotspot.” These are quintessentially
recreational activities and, accordingly, we agree with defendant that Erickson Woods was
intended or permitted to be used for recreational purposes. Consequently, since the character of
the property as a whole was recreational, the section 3-106 immunity would apply.
¶ 39 Plaintiff argues that the only recreational property near the tree was the paved trail and that
“[a]nything and any property outside of the Paved Trail[ ] is outside of the purview of this
immunity.” (Emphasis omitted.) Plaintiff further claims that all of the activities described by
8
According to defendant’s website, defendant’s holdings consist of over 69,000 acres and
constitute the largest forest preserve district in the United States. Forest Preserves of Cook County,
http://www.fpdcc.com/about/mission-vision/ (last visited Aug. 9, 2016). Additionally, a brochure
submitted by defendant as an exhibit to McCabe’s affidavit provides that defendant “manages a
dynamic number of approximately 68,000 acres of land, 80 percent of which remain in a wild or
semi-wild natural state.”
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defendant occur in areas designated for such activities and that defendant’s rules require
persons engaged in those activities to stay in such designated areas. However, this does not
appear to be entirely accurate. An examination of defendant’s rules and regulations, included
as an exhibit to plaintiff’s brief in opposition to defendant’s motion to dismiss and available on
defendant’s website, indicates that the rules state that, for instance, “[b]icyclists and
equestrians must stay on designated trails.” See also Forest Preserves of Cook County,
http://www.fpdcc.com/conservation/conservation-rules-and-policies/ (last visited Aug. 11,
2016) (“Bicycle and equestrian riders are restricted to designated trails, and motorized vehicles
are prohibited.”). However, the rules say nothing about requiring hikers or birdwatchers to stay
on such trails, in contrast to the rules for areas designated as nature centers. See Forest
Preserves of Cook County, http://www.fpdcc.com/preserves-and-trails/rules-and-regulations/
(last visited Aug. 11, 2016) (“For your safety and for the protection of natural areas, please stay
on marked trails. Trails are for hiking only; no running, jogging, horses or other sporting
activities.”). Similarly, there is no restriction on picnicking, other than a prohibition on
picnicking “in certain areas, such as Nature Centers” and restrictions on fire and alcohol.
Forest Preserves of Cook County, http://www.fpdcc.com/preserves-and-trails/
rules-and-regulations/ (last visited Aug. 11, 2016). Indeed, McCabe testified at his deposition
that “if you’ve ever been out in a forest preserve on a weekend, you’ll see that they picnic
everywhere.”9 Again, plaintiff’s view of the recreational property at issue is overly restrictive
and does not comport with our supreme court’s interpretation of the language. In the case at
bar, Erickson Woods was property that was intended or permitted to be used for recreational
purposes. Accordingly, we answer the first certified question in the affirmative.
¶ 40 II. Section 3-107(b)
¶ 41 The second question certified by the trial court asks whether “a tree whose base is located
about seven feet from the edge of a forest preserve bicycle path, and that has a limb
overhanging the approximate width of the path which breaks off and falls onto a cyclist on the
path, constitute a condition of a trail pursuant to Section 3-107(b) of the Tort Immunity Act?”
¶ 42 Under section 3-107 of the Tort Immunity Act, “[n]either a local public entity nor a public
employee is liable for an injury caused by a condition of: (a) Any road which provides access
to fishing, hunting, or primitive camping, recreational, or scenic areas and which is not a (1)
city, town or village street, (2) county, state or federal highway or (3) a township or other road
district highway. (b) Any hiking, riding, fishing or hunting trail.” 745 ILCS 10/3-107 (West
2012). While section 3-106, discussed above, provides immunity only for negligence, “section
3-107(b) extends absolute immunity for both ordinary negligence and willful and wanton
negligence for injuries sustained on certain specified types of recreational property.” Goodwin
v. Carbondale Park District, 268 Ill. App. 3d 489, 492-93 (1994). In the case at bar, we must
9
Plaintiff points to language in defendant’s municipal code that provides: “No person shall engage
in any sport, game, amusement or exercise within the property of the Forest Preserve District except at
such places as may be provided and designated for such purposes by the General Superintendent or his
designee and in accordance with the rules and regulations prescribed by said General Superintendent or
his designee.” Forest Preserve District of Cook County Municipal Code § 2-4-3 (adopted July 13,
2011). However, as noted, Erickson Woods was designated in defendant’s brochure and website for a
wide variety of recreational purposes, and the examples we set forth were not prohibited under
defendant’s rules and regulations.
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determine whether the tree from which the limb that struck the decedent fell was considered a
condition of a riding trail such that defendant would be immune from liability under section
3-107(b).
¶ 43 As an initial matter, it is not entirely clear whether plaintiff is challenging the
characterization of the path as a “riding trail” for purposes of section 3-107(b). However, we
agree with defendant that the path is such a trail. Our courts have looked to the plain and
ordinary meaning of a “trail” as a “ ‘marked path through a forest or mountainous region.’ ”
Mull v. Kane County Forest Preserve District, 337 Ill. App. 3d 589, 591-92 (2003) (quoting
Webster’s Third New International Dictionary 2423 (1993)); see also McElroy v. Forest
Preserve District of Lake County, 384 Ill. App. 3d 662, 669 (2008) (using same definition);
Brown v. Cook County Forest Preserve, 284 Ill. App. 3d 1098, 1101 (1996) (same). In
applying that definition, courts have found that “trails” for the purposes of section 3-107(b)
immunity include a gravel and asphalt path (Mull, 337 Ill. App. 3d at 592), a manmade wooden
bridge connecting gravel portions of a path (McElroy, 384 Ill. App. 3d at 669) and, most
relevantly, a paved bicycle path running through forested areas of a forest preserve (Brown,
284 Ill. App. 3d at 1101). But see Goodwin, 268 Ill. App. 3d at 494 (finding that a “paved bike
path in a developed city park” was not a “riding trail”). In the case at bar, plaintiff’s complaint
alleges that the path ran through Erickson Woods and that “there existed trees, shrubs and other
vegetation in close proximity to the edges of the bike path.” Furthermore, McCabe’s affidavit
stated that the path “runs through forested areas, the Skokie Lagoons, and along the North
Branch of the Chicago River.” Accordingly, we agree with defendant that the path is property
characterized as a “riding trail” for purposes of section 3-107(b).
¶ 44 We must next consider whether the tree was considered a “condition of” the path such that
defendant is immune from liability for the decedent’s death. Our supreme court discussed the
meaning of a “condition” of property with respect to section 3-106 in Moore v. Chicago Park
District, 2012 IL 112788, and we find its analysis instructive here, as both sections of the Tort
Immunity Act use the same “condition” language. In Moore, the supreme court explained that
“the relevant inquiry in determining whether something is a ‘condition’ within the meaning of
section 3-106 is whether a plaintiff’s injury was caused by the property itself or by an activity
conducted on the property. [Citation.] Put another way, activities conducted on public property
‘intended or permitted to be used for recreational purposes’ are not considered ‘conditions of’
the property. [Citation.]” Moore, 2012 IL 112788, ¶ 15. Thus, the court stated that it agreed
with the courts that had determined that “section 3-106 immunizes a defendant from liability in
negligence where the property itself is unsafe, but that section does not immunize the
defendant from unsafe activities conducted upon otherwise safe property.” Moore, 2012 IL
112788, ¶ 15.
¶ 45 Defendant attempts to characterize the instant case as falling within the Moore court’s
analysis, claiming that “[a]pplying the Moore Court’s ‘relevant inquiry’ to the instant case,
poses the question of whether plaintiff’s decedent was injured by the District’s property itself,
or by the District’s activity on the property.” This analysis simply assumes that because the
decedent was injured by a tree limb striking her, instead of the decedent being injured by
defendant’s activities, section 3-107 immunity applies. However, the Moore court was
discussing something that was on the recreational property itself, namely, an unnatural
accumulation of snow and ice, and determining whether that constituted a “condition” of the
property for purposes of section 3-106 immunity. See Moore, 2012 IL 112788, ¶ 1 (the
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certified question to be considered asked whether “ ‘an unnatural accumulation of snow and
ice’ ” constituted a condition of public property under section 3-106). Here, by contrast, we are
asked to consider whether something that is not on the actual path can still be considered a
condition of the path for purposes of section 3-107 immunity. Thus, while the Moore court’s
analysis is instructive, it does not provide an exact template that we can simply apply to the
situation at hand.
¶ 46 There is no doubt that, had the tree limb in question fallen across the path and the decedent
had collided with it at that point, the tree limb would be considered to be a condition of the path
and defendant would be immune from liability. This scenario was present in Goodwin, where
the appellate court found that section 3-106 immunity applied when the plaintiff was injured
after the bicycle he was riding collided with a tree that had fallen across a paved bike path. 10
Goodwin, 268 Ill. App. 3d at 491. See also A.D. v. Forest Preserve District, 313 Ill. App. 3d
919 (2000) (section 3-106 immunity applied with respect to a tree located in a recreational
area). Moreover, it comports with the Moore court’s focus on whether it is the property itself
that is unsafe, as opposed to activities conducted upon the property. However, the factual
situation in the instant case is slightly different, because the tree limb was above the path until
the time that the decedent rode by, at which point it fell to the ground. Thus, we must consider
whether the fact that it was not physically on the path affects the analysis of whether it was a
condition of the path.11
¶ 47 In determining whether the tree from which the tree limb fell was a condition of the path,
we must bear in mind that the Tort Immunity Act “ ‘is in derogation of the common law’ and
must be strictly construed against the local government entity.” Vaughn v. City of West
Frankfort, 166 Ill. 2d 155, 158 (1995) (quoting Curatola v. Village of Niles, 154 Ill. 2d 201,
208 (1993)). Furthermore, “[i]n 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.
[Citation.] 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.
[Citation.]” Moore, 2012 IL 112788, ¶ 9.
¶ 48 In the case at bar, we agree with plaintiff that the trees alongside the path cannot be
considered a condition of the path for purposes of section 3-107 immunity. The language is
clear that section 3-107(b) immunizes defendant from liability “for an injury caused by a
condition of: *** (b) Any hiking, riding, fishing or hunting trail.” 745 ILCS 10/3-107(b) (West
2012). The plain language of the statute thus requires the injury to be caused by a condition of
a trail, and the only reasonable interpretation of that language is that for there to be immunity,
there must be something on the trail itself that caused the injury. Any other result would lead to
10
We note that the Goodwin court also found that the bike path was not a “riding trail” for purposes
of section 3-107(b) immunity as it was a paved bike path within a developed city park. Goodwin, 268
Ill. App. 3d at 493. While this holding has been questioned by other courts (see, e.g., McElroy, 384 Ill.
App. 3d at 667), its section 3-106 analysis has not and we find it instructive to the instant case.
11
Defendant cites several cases finding that trees can be considered conditions of property. We have
no quarrel with such a statement; however, this misses the point because the cases cited by defendant
are cases where the tree at issue was already on the property at the time of the injury. See Goodwin, 268
Ill. App. 3d at 491 (the plaintiff was injured after the bicycle he was riding collided with a tree that had
fallen across a paved bike path); A.D., 313 Ill. App. 3d at 920 (the plaintiff was injured when he ran into
a tree while playing “tag” in a recreational part of a forest preserve).
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arbitrary line-drawing as to whether a nearby structure or natural feature sufficiently affects the
trail so as to be considered a condition of that trail. While defendant attempts to broaden the
scope of the path to include trees alongside and overhanging the path, we see nothing in the
language of the statute to support such an extension.
¶ 49 Defendant relies on Brown to argue that “a condition need not be on a trail in order to be
deemed a condition of the trail.” In Brown, the plaintiff was injured when his bicycle slid out
from under him when he descended an incline on a bicycle path and he hit his head on a
guardrail that was alongside the path. Brown, 284 Ill. App. 3d at 1099. He filed suit against the
defendant forest preserve, alleging “that his injuries were caused, in part, by the curvature and
slope of the path which the Forest Preserve wilfully and wantonly designed and maintained.”
Brown, 284 Ill. App. 3d at 1099. He also alleged willful and wanton conduct “in the Forest
Preserve’s placement of the path alongside a steel guardrail which served as a barrier to
vehicular traffic using 26th Street.” Brown, 284 Ill. App. 3d at 1099.
¶ 50 In finding that section 3-107(b) immunity applied, the Brown court rejected the plaintiff’s
argument that “because his injuries were *** caused by the placement of an artificial barrier, in
this case a steel guardrail, his claims must *** be permitted to proceed to trial.” Brown, 284 Ill.
App. 3d at 1102. The court found that creating a general exception to tort immunity for all
cases involving manmade structures would discourage public entities from undertaking
improvements to trails and there was nothing in the Tort Immunity Act that would warrant
creating such a broad exception. Brown, 284 Ill. App. 3d at 1102. The Brown court further
noted that the complaint indicated that the guardrail was not on or across the trail itself,
distinguishing the facts from the case relied on by the plaintiff, and that the complaint did not
allege that the guardrail caused his fall. Brown, 284 Ill. App. 3d at 1102.
¶ 51 While defendant places a great deal of reliance on Brown, we find it of limited usefulness
to the facts present in the instant case. The majority of the Brown court’s analysis is spent
considering the question of whether the path at issue was a “riding trail” under section 3-107.
See Brown, 284 Ill. App. 3d at 1101. The court’s only discussion of whether the guardrail was
a “condition” of the trail was its distinguishing the plaintiff’s citation of Sites v. Cook County
Forest Preserve District, 257 Ill. App. 3d 807 (1994), and its rejection of the plaintiff’s related
argument that, because the guardrail was an artificial barrier, like in Sites, his claims should
proceed to trial. Brown, 284 Ill. App. 3d at 1102. Furthermore, the main reason for rejecting the
plaintiff’s argument in that case was his focus on the artificiality of the guardrail and the public
policy consequences of adopting the plaintiff’s argument concerning manmade structures, an
issue which is not present in the instant case. See Brown, 284 Ill. App. 3d at 1102. There is no
discussion in the case concerning whether the fact that the guardrail was next to the path
affected the analysis of whether it was a condition of the path.12 In light of the lack of analysis
of the issue present in the instant case, namely, whether an object must be on the property itself
to be considered a condition of the property, we do not find Brown to provide any insight into
our analysis here. We also find it significant that the Brown court specifically noted that the
12
In distinguishing Sites, the Brown court noted that “Brown’s complaint indicates that the steel
guardrail which he struck was not on or across the trail itself, as was the cable gate at issue in Sites.”
Brown, 284 Ill. App. 3d at 1102. However, the Brown court does not explain the significance it attaches
to this fact, other than as a basis for factually distinguishing Sites.
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guardrail was not alleged to have caused the plaintiff’s fall, whereas in the instant case, the
complaint does allege that the falling tree limb caused the decedent’s injuries.13
¶ 52 We are also unpersuaded by defendant’s attempt to argue that a nearby tree can be a
condition of a riding trail by taking a “definitional” approach to the issue. Defendant points to
the fact that, as we noted above, our courts have often used the dictionary definition of “trail”
as a “ ‘marked path through a forest or mountainous region.’ ” See, e.g., Mull, 337 Ill. App. 3d
at 591 (quoting Webster’s Third New International Dictionary 2423 (1993)). Defendant
continues that “[n]aturally, a ‘forest’ is comprised of trees. Therefore, on a strictly definitional
basis, trees are *** a ‘part of’ a trail.” We do not agree with defendant’s expansive
interpretation of this language. Under this theory, all of the trees in a forest would be “part of”
a trail, as would any mountains through which a trail wound. This is certainly not what the
legislature intended. Defendant also argues that the word “condition” is defined as “ ‘[t]he
state of something, especially with regard to its appearance, quality or working order,’ ” and
includes as synonyms “ ‘circumstances, surroundings, environment, situation, setup, [and]
habitat’ ” (quoting Oxford Dictionaries, http://www.oxforddictionaries.com/us/
definition/american_english/condition); defendant claims that trailside trees that hang over
and have an effect on the trail’s use must be part of “ ‘the state of’ ” the trail. We do not find
this argument persuasive. To the extent that the trees dropped debris onto the trail, that debris
would undoubtedly be considered conditions of the trail. However, we cannot find that merely
shading the path means that the tree providing the shade becomes part of “the state of” the path.
¶ 53 Finally, defendant cites two out-of-state cases concerning trees falling and injuring people.
We are not bound by cases from other jurisdictions (U.S. Residential Management &
Development, LLC v. Head, 397 Ill. App. 3d 156, 164 (2009)), and we also do not find these
cases to support defendant’s argument. In Burnett v. State Department of Natural Resources,
346 P.3d 1005, 1006 (Colo. 2015), the Supreme Court of Colorado considered whether the
state had waived its immunity for injuries sustained by the plaintiff after she was struck by a
tree limb while she was camping in a designated campsite in a state park. The court explained
that, under Colorado law, governmental entities were generally immunized from tort liability
but such immunity was waived under limited circumstances, including in actions “for an injury
arising from a ‘dangerous condition of any … public facility located in any park’ it maintains.”
Burnett, 346 P.3d at 1008 (quoting Colo. Rev. Stat. § 24-10-106(1)(e) (West 2008)). However,
it retained immunity for “injuries ‘caused by the natural condition of any unimproved property,
whether or not such property is located in a park.’ ” Burnett, 346 P.3d at 1008 (quoting Colo.
Rev. Stat. § 24-10-106(1)(e) (West 2008)). Thus, the court was asked to consider whether the
government was immune where the plaintiff was on a public facility located in a park but was
injured by a tree that originated on unimproved property. After examining the legislative
history of the statutes, the court found that “the legislature intended to retain immunity for
injuries caused by native trees originating on unimproved property regardless of their
proximity to a public facility, such as the improved area of the campsite here.” Burnett, 346
P.3d at 1010.
13
While the Brown court states that the plaintiff did not allege that the guardrail caused the
plaintiff’s fall, the case is not entirely clear as to whether that also means that the complaint did not
allege that the guardrail caused the plaintiff’s injury. Since section 3-107 requires the injury to have
been caused by a condition of the trail, this is an important distinction.
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¶ 54 Similarly, in Meddock v. County of Yolo, 162 Cal. Rptr. 3d 796, 797 (Cal. Ct. App. 2013),
the California Court of Appeal considered whether the county was immune when a tree fell on
the plaintiff while he was in a paved parking lot located in a park owned by the county. Under
California law, the county was liable for a “dangerous condition of the parking lot, provided it
had notice and time to correct it” (Meddock, 162 Cal. Rptr. 3d at 800); however, the county
was immune by statute for injuries “ ‘caused by a natural condition of any unimproved public
property.’ ” (Emphasis omitted.) Meddock, 162 Cal. Rptr. 3d at 800 (quoting Cal. Gov’t Code
§ 831.2 (West 2012)). The court found that “although the injury occurred on improved
property, that is, the paved parking lot, it was caused by the trees, native flora located
near—and perhaps superjacent to—the improved parking lot, but themselves on unimproved
property.” (Emphases in original.) Meddock, 162 Cal. Rptr. 3d at 800-01. The court
accordingly concluded that “[b]ecause Meddock’s injuries were caused by decaying natural
trees located on unimproved property, the County is immune from liability therefor.”
(Emphasis in original.) Meddock, 162 Cal. Rptr. 3d at 805.
¶ 55 Defendant cites Burnett and Meddock “solely to illustrate that reviewing courts in other
jurisdictions have recognized the public policy considerations in favor of immunizing public
entities that provide land for recreational use from liability for tree fall accidents occurring on
that land” and to argue that the same policy considerations should apply here. We do not find
this argument persuasive, because of the differences in the immunity statutes at issue. Both the
Colorado and California courts stated that the statutes they were interpreting provided that
immunity was the general rule and liability was the exception to that rule. See Burnett, 346
P.3d at 1008 (“The [Colorado Governmental Immunity Act (CIGA)] generally immunizes
governmental entities and employees from tort liability but waives this immunity under limited
circumstances.”); Burnett, 346 P.3d at 1009 (“[T]he General Assembly enacted the CGIA to
reestablish governmental immunity, excepting a finite number of specific circumstances in
which public entities waive immunity.”); Meddock, 162 Cal. Rptr. 3d at 800 (“ ‘The
[Government] Claims Act provides that “[e]xcept as otherwise provided by statute,” “[a]
public entity is not liable for an injury.” [Citation.]’ [Citation.]”). By contrast, our Illinois
Supreme Court has stated that under the Tort Immunity Act, liability is the general rule and
immunity is the exception to the rule. See Bubb, 167 Ill. 2d at 377 (“local public entities, in
general, have a duty to exercise ordinary care to maintain public property in a reasonably safe
condition”); Van Meter v. Darien Park District, 207 Ill. 2d 359, 368-69 (2003) (“Unless an
immunity provision applies, municipalities are liable in tort to the same extent as private
parties.”). Thus, the public policy reasons underlying the other courts’ holdings do not
necessarily apply equally to the instant case. Our legislature has amended the Tort Immunity
Act to expand the scope of immunity when it has determined that it is in the public’s best
interest to do so. See Sylvester, 179 Ill. 2d at 509 (explaining that section 3-106 was amended
in 1986 to expand the scope of immunity in order to decrease the costs of liability insurance for
local public entities). We leave such a determination to the legislature and will not expand the
scope of immunity through judicial action.
¶ 56 Furthermore, both the Burnett and Murdock courts concluded that a tree that fell onto
improved property nevertheless retained its characterization as “natural” property because it
originated on the unimproved property. These holdings are directly contrary to defendant’s
position here, where it is attempting to use these cases to argue that the tree that injured the
decedent should be considered part of the path, instead of retaining its natural characterization
- 16 -
as something separate from the path. Accordingly, we find these cases offer no support for
defendant’s position.
¶ 57 CONCLUSION
¶ 58 For the reasons set forth above, we answer the certified questions as follows: (1) the tree
from which the limb that struck the decedent fell was located on property intended or permitted
to be used for recreational purposes and defendant is therefore immune from liability for
negligence pursuant to section 3-106 of the Tort Immunity Act and (2) the tree from which the
limb that struck the decedent fell was not a condition of a riding trail for purposes of section
3-107(b) of the Tort Immunity Act and defendant is therefore not immune from liability for the
decedent’s death under that section.
¶ 59 Certified questions answered.
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