Legal Liability Of Park Districts: Putting The Law In Perspective

The Tort Immunity Act is not a public safety statute. It is not designed to protect members of the public from being injured. In fact, just the contrary. It is designed to protect public employees from liability.

By Jay S. Judge

Second And Last Of Two Installments

Two other areas of consideration must be mentioned. First, this article has not discussed the immunities available to Park Districts under the Tort Immunity Act (Local Governmental and Governmental Employees Tort Immunity Act, Ch. 85, §§ 1-101 etseq. (1981)).

The rules which have been discussed deal with a lack of duty. If there is no duty in the first place, there is no need to admit there was a duty and that the duty has been breached but that such conduct is not actionable because of the privilege of immunity. There is no need to reach the question of immunity if there is no duty in the first place. If a case can be defeated without reaching the question of immunity, so much the better.

Two sections of the Tort Immunity Act are most frequently raised in Park District cases. They are as follows:

"§ 3-106. Property used for park, playground or recreational purposes.

"Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used as a park. playground or open area for recreational purposes unless such local entity or public employee is guilty of wilful and wanton negligence proximately causing such injury."

"§ 3-108. Failure to supervise activity or use of property.

"(a) Except as otherwise provided by this Act and subject to subdivison (b) neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property.

"(b) Where a local public entity or public employee designates a part of public property to be used for purposes of swimming and establishes and designates by notice posted upon the premises the hours for such use. the entity or public employee is liable only for an injury proximately caused by its failure to provide supervision during the said hours posted."

It seems pretty well conceded, though not without some argument, that if the Park District has liability insurance, then the immunities of these two sections will be waived. Assuming that insurance causes a waiver of the immunities under these two sections, does that mean the Tort Immunity Act imposes a duty on the Park District? The answer is simply "No".

The Tort Immunity Act never can impose an obligation on a Park District. It grants certain immunities. If the Park District has insurance, it may not rely on certain Tort Immunity Act immunities. That is, it may not have immunity. However, the Tort Immunity Act imposes no duties or obligations.

Disposing of the contention that the Tort Immunity Act could ever impose a duty or obligation upon a city or Village, the court in Hannon v. Counihan, ⁴³ reasoned as follows:

"In the first instance we direct our attention to a suggestion contained in plaintiff's argument that their cause of action arises from and is found in the Tort Immunity Act itself. It does not. The 1970 Illinois Constitution abolished the doctrine of sovereign immunity except as the General Assembly might provide by law. The General Assembly has enacted the Tort Immunity Act which statutorily created certain areas in which a local public entity or public employee may be immune from tort liability and provided circumstances under which such immunities or defenses would be waived. The Tort Immunity Act does not create any new liabilities for negligent acts or omissions which did not previously exist. In this case, sections 2-105 and 2-207 of the Tort Immunity Act. which declare certain immunities for negligent municipal inspections or failure to inspect property not owned by the municipality may not be coupled with section 9-103(b), waiving such immunity if public liability insurance is acquired, so as to create a new liability of these municipalities.

"A determination of whether plaintiffs have a cause of action against defendants here must rest on a determination of whether defendants owed a duty to them in the circumstances shown by the allegations of the complaint."⁴⁴

Similarly, the case of Porter v. City of Urhana, ⁴⁵ held the Tort Immunity Act, through a waiver by insurance argument, cannot be used to impose duties or obligations on governmental bodies. The court explained:

"A municipality waives the statutory immunity by securing insurance coverage against a particular form of liability. The Tort Immunity Act is not a catalog of duties or a source of rights; it does not create new liability where none already exist. Thus, we must look to other statutes and to the common law to determine whether the complaint states a cause of action."⁴⁶

Only the violation of a public safety statute — one designed to protect people from suffering injuries to their person — can give rise to a cause of action in negligence. The Tort Immunity Act is not a public safety statute. It is not designed to protect members of the public from being injured. Infact, just the contrary. It is designed to protect public employees from liability. It is intended to keep the members of the public from collecting for their injuries. Hence, an alleged violation of the Tort Immunity

44. Hannon v. Counihan. 54 Ill. App. 3d 509, 369 N.E.2d 917(1977).

45. Porter v. City of Urbana. 88 Ill. App. 3d 443.410 N.E.2d 610(1980).

46. Porter v. City of Urbana 88 Ill.. App. 3d 443. 410 N.E.2d 610(1980).

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Act does not give rise to a cause of action. It imposes no obligations. It is not the "Tort Duty Act". It is the "Tort Immunity Act".⁴⁷

47. A number of cases have implied that a violation of the Tort Immunity Act imposes some type of duty, the breach of which gives rise to a cause of action against a governmental entity. A thoughtful and thorough analysis of this question reveals that an allegation of a violation of the Tort Immunity Act does not give rise to a cause of action. The purpose of the Tort Immunity Act is to grant immunity to governmental entities. It does not impose any duties on governmental entities. The legislature would be very surprised to find out that it had passed the "Tort Duty Act" rather than the "Tort Immunity Act" were the courts to begin construing the Tort Immunity Act to impose duties rather than to grant immunities.

For a violation of a statute to constitute prima facie evidence of negligence so as to give rise to a cause of action, it is necessary that the statute involved be a public safety statute designed and intended to provide for the safety of the public. Clearly, the Tort Immunity Act is not a public safety statute designed to protect the safety of the public, but is rather a statute designed and intended to grant certain immunities to governmental entities, therefore, it is quite obvious that an alleged violation of the Tort Immunity Act will not give rise to a cause of action.

As a general rule, the violation of a public safety statute or ordinance is not negligence perse, but is prima facie evidence of negligence which gives rise to a cause of action when: (I) the statute is designed to provide for the public safety; (2) when the statute is meant to protect against the particular type of injury that has occurred; (3) when the injured person is in the class of persons the statute is meant to protect: and (4) when the violation of the statute actually proximately causes the injury. Davis v. Marathon Oil Co., 64 Ill. 2d 380. 356 N.E.2d 93(1976): Gula v. Gawell. 71 Ill. App. 2d 174.218 N.E.2d 42(1966): and Gillelle v. Anderson. 4 Ill. App. 3d 838. 282 N.E.2d 149 (1972).

It must be pointed out that the violation of a statute or ordinance not designed for public safety, not meant to protect against the type of injury that occurs, and not meant to protect a person in the same class as the Plaintiff, will not give rise to a cause of action in negligence. Gillelle v. Anderson. 4 Ill. App. 3d 838, 282 N.E.2d 149 (1972).

The purpose of the Tort Immunity Act is to provide immunity for public entities and their employees from money damages. (Ch. 85. §§ I-201 and 2-101. Ill. Rev. Stat. (1977).)

The Tort Immunity Act seeks to reinstate the governmental immunity abolished by Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11. 163 N.E.2d 89 (1959), and altered by Harvey v. Clyde Park District. 32 Ill. 2d 60, 203 N.E.2d 573 (1965). Judge. Tort Immunity Act: Only Certain Immunities Are Waived by Public Entity's Purchase of Insurance, 63 Ill. B.J. 386 (1975).

Perhaps the best way to illustrate this concept is to review § 3-102 of the Tort Immunity Act and determine whether a violation of § 3-102 would give rise to a cause of action against a governmental entity.

Section 3-102 of the Tort Immunity Act provides as follows:

"§ 3-102. Care and Maintenance of Property
— Constructive Notice.
"a. Except as otherwise provided in this Article, a local public entity has a duty to exercise ordinary care to maintain its properly in a reasonably safe condition for the use in the exercise or 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 sufficient time prior to an injury to have taken measures to remedy or protect against such condition."

In order to determine exactly what § 3-102 provides, it is necessary to look at the pertinent operative portions of § 3-102 which are as follows:

"... a local public entity has the duty to exercise ordinary care to maintain its property ... and shall not be liable for injury unless it is proven that it has actual or constructive notice ... in sufficient time ... to remedy or protect against such condition."

A careful reading of § 3-102 reveals that it provides that a local public entity has immunity from maintaining its property with reasonable care unless it has notice of a defect. If a local public entity has notice of a defect in its property, it may be liable. If it does not have notice, either constructive or actual, it mav not be liable by virtue of § 3-102.

It is clear that this is a modification of the general rule with respect to the liability of a landowner for failing to maintain his property. The general rule is that a landowner is liable for failing to maintain his property by using ordinary care to do so. It matters not whether an ordinary landowner has notice of the defect in his property.

On the other hand, § 3-102 provides that a local public entity, as a landowner, is not liable for failing to maintain its property unless it has notice of a defect. Thus the Tort Immunity Act chooses to distinguish between a private landowner and a local public entity as a landowner, and grants that local public entity a certain amount of immunity which is not available to a private landowner.

All § 3-102 does is provide that a local public entity with notice of a defective condition in sufficient time to remedy that defective condition may be liable for negligence in maintaining its property just as any other private landowner may be liable. However, under § 3-102, if a local public entity has no notice of a defective condition, then it may not be liable for negligence with respect to maintaining its property the failure to exercise reasonable care in the maintenance of its property wilt not give rise to a cause of action against it.

It has been suggested that one of the purposes of § 3-102(a) of the Tort Immunity Act is to protect local public entities from attractive nuisance type lawsuits. Professor Baum in "Tort immunity of Local Governments and Their Employees: An Introduction to The Illinois Immunity Act" has indicated that § 3-102 is intended to provide immunity and protection for municipalities. In this regard. Professor Baum has written:

"The Illinois Supreme Court held at an early date that municipalities, like private parties, are liable for injuries to young children caused by dangerous conditions of property under circumstances that fall within the attractive nuisance doctrine. The court ruled that a municipal corporation holding properly as a private owner is chargeable with the same duties and obligations, which devolve on individuals. Where it owns, leases or controls lands, houses, docks, piers, water and gas works, it is liable - . . and must respond in the same way for creating or suffering nuisances. The language of § 3-l02(a) can be interpreted to negate the application of the attractive nuisance doctrine to public properly, because the duty there set forth extends only to 'people intended and permitted to use the property' and thus may not cover children who are neither intended nor permitted onto public property but obtain access nonetheless. It is not clear that such a change in the law was contemplated. and the attractive nuisance doctrine can he preserved without doing violence to the words of the statute." ( Baum. Ton Immunity of Local Governments and Their Employees:

(cont. next page)

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Thus, it is frequently easy to dispose of a case on the basis of a lack of duty. When done, there is no need to reach the question of immunity.

The final point which needs to be considered is the question of pleading wilful and wanton misconduct against a Park District. To avoid a plea of immunity. Plaintiffs will plead that the Park District is guilty of wilful and wanton misconduct. To so plead, a Complaint must allege facts which show an intent to injure or conduct so reckless that injury was bound to follow. Merely pleading facts which might constitute negligence is not enough to plead wilful and wanton misconduct. The necessity of requiring that a Complaint so plead such facts must be adhered to. It is seldom a Park District tries to intentionally hurt someone or acts so recklessly that someone is bound to be injured.

Wilful and wanton misconduct has been defined by the court in Fosdick v. Servis,⁴⁸ in the following terms:

"An intentional act or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others such as a failure after knowledge of impending danger, to exercise ordinary care to prevent it, or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care ... a wanton act involves a conscious indifference to a known danger. It is based on the concept that under the known or plainly observable circumstances the doing or failing to do something will naturally and probably result in injury to another, and the defendant must have been aware of that situation and ignored it."

The Illinois courts are unanimous in their agreement that to constitute a wilful and wanton act the party doing the act or failing to do the act must be conscious of his conduct and though he may have no intent to injure. he must be conscious of the fact, from his knowledge of his surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury.

Illustrative of the typical type of pleading of wilful and wanton misconduct that is insufficient is the case of Jarvis v. Herrin City Park District. ⁴⁹ Jarvis involved a fall from a slide by a minor. Plaintiff, Cheryl Jarvis, had alleged negligence on the part of the Park District in failing to maintain the slide, failing to inspect the slide, and failing to provide an adequate railing on the slide. Count II of the Complaint charged that these acts or omissions constituted negligence.

Count I charged that these same factual allegations constituted wilful and wanton misconduct. It alleged that such acts or omissions amounted to "utter indifference to or conscious disregard for"the safety of the Plaintiff.

The Appellate Court in Jarvis held that charges of failing to maintain or inspect the slide and failing to provide guard rails, though characterized as "wilful and wanton" were not, in fact, wilful and wanton misconduct.

The court stated that the Complaint must allege sufficient averments of fact to state a cause of action. The Complaint amounted to nothing more than a simple charge of negligence. The addition of the words "utter indifference to or conscious disregard for" did not change the factual allegations relating thereto. The

FOOTNOTE 47 continued

An Introduction to The Illinois Immunity Act. 1966 Ill. Law Forum, 981 at 1012.)

Professor Baum also goes on to indicate that the requirement of notice, actual or constructive, of an unsafe condition of property provides an additional protection or immunity to a local public entity. While the common law for the most part required notice to a governmental body, it is clear that there are a number of instances where a local public entity may not enjoy immunity because of lack of notice pursuant to § 3-102(a). For example, Professor Baum points out, the situation where a local public entity hires a contractor to construct or repair public property and the contractor performs negligently. The local public entity may have no actual or constructive notice of such unsafe condition. Under § 3-102(a), there would be no liability. (Baum, at 1013.)

Professor Baum also indicates that there are instances where constructive notice as defined under the common law would not be the same under § 3-102 which provides that in considering the nature of an inspection system the practicality and the cost of inspection is to be weighed against the liklihood and magnitude of potential danger. (Baum. at 1014-15.)

Thus, it is clear that if a Plaintiff pleads in a Complaint that the governmental entity is liable because of an alleged violation of § 3-102 of the Tort Immunity Act that the Plaintiff is then contending that the violation of the Tort Immunity Act will give rise to a cause of action.

The Tort Immunity Act is intended to provide a defense or immunity for local public entities and their employees. It certainly does not have as its purpose the providing of a cause of action to Plaintiffs who desire to sue local public entities. The Tort Immunity Act itself is the very antithesis of the concept of granting or giving a Plaintiff a cause of action against a local public entity.

What is contended by a Plaintiff to constitute a violation of the Tort Immunity Act is not, in fact, a violation of the Act. If a local public entity does not qualify for an immunity granted by the Act because it does not fall within the specific provisions of a certain section of the Act, all that occurs is that the public entity is unable to assert the Tort Immunity Act as a defense. Thus, in the example given with respect to § 3-102. if the local public entity does not fall within the provisions of § 3-102, then it may not claim § 3-102 as an immunity in defending an action brought by a Plaintiff against it. In no way, shape, or form does the failure of a local public entity to qualify for an immunity under § 3-102 or any other section of the Tort Immunity Act give rise to a cause of action. It means simply that the local public entity may not have or use what might have been an available possible immunity under the Tort Immunity Act.

48. Fosdick v. Servis. 40 Ill. App. 2d 363. 189 N.E.2d 538 (1963).

49. Jarvis v. Herrin City Park District. 6 Ill. App.3d516,285 N.E.2d 564 (1972).

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court in Jarvis concluded that the Complaint failed to state a cause of action for wilful and wanton misconduct in Illinois. In so holding, the court stated:

"In the present case, the plaintiff has alleged that certain omissions show defendant's utter indifference to or conscious disregard for the safety of the plaintiff. But we can find nothing in the allegations of fact which, if proven, would show the defendant was utterly indifferent to or consciously disregarded the safety of the plaintiff. While the allegations of fact may have been sufficient to constitute negligence, they are not sufficient to show wilful and wanton conduct. For want of such factual allegations that count of the complaint must be adjudged insufficient."⁵⁰

Where the law is put in perspective and the legal liability of Park Districts is scrutinized closely, it is clear that there exist many defenses which need to be diligently pursued. It will be seldom, rather than frequent, that an accident involving injury in a park will truly be the Park District's fault.

50. Jarvis v. Herrin City Park District, 6 Ill. App.3d 516,285 N.E.2d 564 (1972).

ABOUT THE AUTHOR: Jay S. Judge, J.D. from John Marshall Law School with honors, served as Editor-in-Chief of the John Marshall Law Review. He writes a column "In Federal Courts" for the Chicago Daily Law Bulletin and "Ready For The Defense" for County & Township Official Magazine. He is a partner in the 15-attorney Park Ridge firm of Judge & Knight, Ltd. Specialties are defense of governmental bodies and insurance coverage cases.