2016-09

Foust v. The Forest Preserve District of Cook County , 2016 IL App (1st) 160873 ( 2016 )

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2016 IL App (1st) 160873

                                   Nos. 1-16-0873, 1-16-0874 (cons.)
Fifth Division
September 30, 2016
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
)
JOE FOUST, as Administrator of the Estate of Molly
)   Appeal from the Circuit Court
Anne Glynn, Deceased,                          )   of Cook County.
)
Plaintiff-Appellee and Cross-Appellant,  )   No. 2014 L 011513
)
v.                                             )   The Honorable
)   William E. Gomolinski,
THE FOREST PRESERVE DISTRICT OF COOK           )   Judge Presiding.
COUNTY,                                        )
)
Defendant-Appellant and Cross-Appellee.  )
)
______________________________________________________________________________
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
Nos. 1-16-0873, 1-16-0874 (cons.)
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 Woods 1 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
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.”
2
Nos. 1-16-0873, 1-16-0874 (cons.)
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 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
3
Nos. 1-16-0873, 1-16-0874 (cons.)
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
4
Nos. 1-16-0873, 1-16-0874 (cons.)
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 claims 2
“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 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
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).
5
Nos. 1-16-0873, 1-16-0874 (cons.)
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
6
Nos. 1-16-0873, 1-16-0874 (cons.)
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.”
¶ 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
3
The parties engaged in limited discovery solely concerning the issues raised in the motion to
dismiss.
7
Nos. 1-16-0873, 1-16-0874 (cons.)
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
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.”
8
Nos. 1-16-0873, 1-16-0874 (cons.)
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 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.
9
Nos. 1-16-0873, 1-16-0874 (cons.)
¶ 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
10
Nos. 1-16-0873, 1-16-0874 (cons.)
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 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
11
Nos. 1-16-0873, 1-16-0874 (cons.)
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 statute contains a specific list of recreational property to which the statute applies. This
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.
12
Nos. 1-16-0873, 1-16-0874 (cons.)
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
13
Nos. 1-16-0873, 1-16-0874 (cons.)
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 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
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.
14
Nos. 1-16-0873, 1-16-0874 (cons.)
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 of Cook County,

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
15
Nos. 1-16-0873, 1-16-0874 (cons.)
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 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
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))).
16
Nos. 1-16-0873, 1-16-0874 (cons.)
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 holdings 8 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
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.”
17
Nos. 1-16-0873, 1-16-0874 (cons.)
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 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
18
Nos. 1-16-0873, 1-16-0874 (cons.)
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
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.
19
Nos. 1-16-0873, 1-16-0874 (cons.)
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 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
20
Nos. 1-16-0873, 1-16-0874 (cons.)
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
21
Nos. 1-16-0873, 1-16-0874 (cons.)
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
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 of Kane County,

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
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.
22
Nos. 1-16-0873, 1-16-0874 (cons.)
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 arbitrary line-drawing as to whether a nearby structure or natural feature
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).
23
Nos. 1-16-0873, 1-16-0874 (cons.)
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.”