Schnering v. Midlothian Park District

579 N.E.2d 908, 219 Ill. App. 3d 664, 162 Ill. Dec. 94, 1991 WL 104323, 1991 Ill. App. LEXIS 1029
CourtAppellate Court of Illinois
DecidedJune 17, 1991
DocketNo. 1—89—2559
StatusPublished
Cited by9 cases

This text of 579 N.E.2d 908 (Schnering v. Midlothian Park District) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schnering v. Midlothian Park District, 579 N.E.2d 908, 219 Ill. App. 3d 664, 162 Ill. Dec. 94, 1991 WL 104323, 1991 Ill. App. LEXIS 1029 (Ill. Ct. App. 1991).

Opinion

JUSTICE CAMPBELL

delivered the opinion of the court:

Minor-plaintiff, Donald Schnering, appeals from an order of the circuit court of Cook County granting defendant Midlothian Park District’s (Park District’s) motion for summary judgment.

The record on appeal discloses the following. On May 11, 1985, plaintiff, who was 4V2 years old, went to Bremen Heights Park with his baby sitter. Plaintiff was not allowed to go to a park alone. Plaintiff went over to the “Frontier Outpost,” which is essentially a platform or deck elevated approximately four feet above a dirt surface. The platform has a hole through which one can gain access to the deck by means of a ladder. A telescope is mounted at each corner of the deck.

Plaintiff had never been to this park previously and had never been on a “Frontier Outpost” before. Nevertheless, plaintiff climbed the ladder to the deck, where he attempted to use one of the telescopes. Upon finding the telescope blocked, plaintiff began to cross the deck to one of the other telescopes. While crossing, plaintiff fell through the hole in the deck to the ground below. Plaintiff suffered a fractured right femur, which required surgical pinning and traction.

Subsequently, plaintiff filed a complaint against defendant Park District, which owned and maintained the property in question, alleging negligence in count I and willful and wanton misconduct in count II. Other counts of plaintiff’s complaint purport to allege various causes of action against defendant Miracle Recreational Equipment Company, the manufacturer of the “Frontier Outpost.” None of the claims against Miracle Recreational Equipment Company are before this court.

Defendant Park District filed a motion for summary judgment pursuant to section 2 — 1005 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005). The Park District argued that it owed no duty to plaintiff. Following a hearing on the motion, the trial court granted summary judgment in favor of the Park District. This appeal followed.

Summary judgment is properly granted if the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Alop v. Edgewood Valley Community Association (1987), 154 Ill. App. 3d 482, 484, 507 N.E.2d 19, 21.) In order to withstand a motion for summary judgment, the nonmoving party must come forward with evidentiary material that establishes a genuine issue of fact. (Salinas v. Chicago Park District (1989), 189 Ill. App. 3d 55, 545 N.E.2d 184.) Absent an abuse of discretion by the trial court, summary judgment will not be reversed. Fearon v. Mobil Joliet Refining Corp. (1984), 131 Ill. App. 3d 1, 475 N.E.2d 549.

The determination of whether a duty exists is an issue of law to be determined by the court. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525, 513 N.E.2d 387, 396.) When, as a matter of law, there is no duty owed to the plaintiff by the defendant, the defendant is entitled to judgment. Hootman v. Dixon (1984), 129 Ill. App. 3d 645, 472 N.E.2d 1224.

Although the Illinois Supreme Court abolished the doctrine of sovereign immunity in 1959 (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 506, 565 N.E.2d 654, 658), our courts have generally upheld the common law rule that a governmental body exercising its governmental authority for a governmental purpose is generally not liable to a private plaintiff for the allegedly negligent exercise of said authority. (Fryman v. JMK/Skewer, Inc. (1985), 137 Ill. App. 3d 611, 614, 484 N.E.2d 909, 911; Hannon v. Counihan (1977), 54 Ill. App. 3d 509, 369 N.E.2d 917; see Burdinie, 139 Ill. 2d at 507-08, 565 N.E.2d at 658.) When a municipality acts for the benefit of the general public, it owes no duty to a particular member of the public, unless plaintiff can show that defendant owed a “special duty” to a particular individual. (See Burdinie, 139 Ill. 2d at 508, 565 N.E.2d at 658.) Hence, our courts have distinguished those functions which are governmental in character from those which are not. Fryman, 137 Ill. App. 3d at 614-15, 484 N.E.2d at 911.

For example, in Davis v. Chicago Housing Authority (1990), 136 Ill. 2d 296, 555 N.E.2d 343, our supreme court stated that “[t]here can be no question that the providing of a playground is a governmental activity.” (Davis, 136 Ill. 2d at 301, 555 N.E.2d at 345.) The Davis court noted that by statute, the powers of housing authorities, including the power to establish playgrounds adjacent to public housing projects, were governmental functions. Davis, 136 Ill. 2d at 301, 555 N.E.2d at 345.

This case differs from Davis only insofar as there appears to be no statute which expressly states that the Park District’s power to create and maintain a playground is a governmental function. Nevertheless, it cannot be seriously doubted that the provision and maintenance of the playground in this case is the exercise of a governmental function. The playground is maintained for the recreational benefit and use of the public, not the private gain of the Park District. (See Gebhardt v. Village of LaGrange Park (1933), 354 Ill. 234, 239, 188 N.E. 372, 374.) Consequently, in the absence of a statute imposing such liability, the Park District is not liable for the allegedly negligent operation or maintenance of the playground at issue in this case. See Gebhardt, 354 Ill. at 239, 188 N.E. at 374.

This conclusion raises the question of whether the duty plaintiff alleges has been imposed by statute. Section 3 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 102(a)) imposes upon a local public entity:

“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 [it] 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 [had] actual or constructive notice of the existence of such a condition.”

In this case, given the facts as stated by the parties both in their briefs and at oral argument, this court initially held that summary judgment was proper based on section 3 — 106 of the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 106), which immunizes local public entities from liability for the conditions of recreational facilities on public property.

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Bluebook (online)
579 N.E.2d 908, 219 Ill. App. 3d 664, 162 Ill. Dec. 94, 1991 WL 104323, 1991 Ill. App. LEXIS 1029, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schnering-v-midlothian-park-district-illappct-1991.