Legal Update

The Appellate Court for the 1st District (Cook County) held that," [w]hen 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." Typically, the courts recognize such a "special duty" only if an injury occurs while the plaintiff is under the direct and immediate control or custody of the defendant's employees or agents.

In reaching its unanimous decision, the Appellate Court relied upon 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 [that] authority." However, the court applied this rule to both the negligence claims of the plaintiff and his claims for willful and wanton conduct.

The Brown case involved a 22 year-old mentally handicapped woman who had the equivalent of a third grade education. She did not know how to swim, had never been in a swimming pool or the water at the beach before and, in fact, had been forbidden by her father, the plaintiff in the case, from going to the Chicago Park District pool at which the accident occurred. Nevertheless, accompanied by neighbors, she went to the pool, jumped, fell or was pushed into deep water and drowned. She was wearing a T-shirt and shorts at the time. The plaintiffs complaint alleged that the Park District's lifeguards at the swimming pool failed to rescue the plaintiffs daughter because they were socializing with some girls at the time of the accident.

The Appellate Court affirmed the trial court's dismissal of the plaintiffs complaint, holding that the plaintiff had "failed... to demonstrate that defendants had notice of decedent's mental capacity or that the wearing of street clothes at the pool should have put defendants on notice of that capacity."

The trial court had dismissed the plaintiffs complaint based upon Section 3-108(b) of the Local Governmental and Governmental Employees Tort Immunity Act. The Chicago Park District had contended that Section 3-108(b) barred the plaintiffs claims because the complaint admitted that the Park District had lifeguards on duty at the swimming pool when the accident occurred, and thereby had provided the "supervision" required by Section 3-108(b) as a condition of immunity.

The Appellate Court did not reach this issue. However, it cited with approval a 1933 Illinois Supreme Court decision that "in the absence of a statute imposing... liability a [unit of local government] maintaining a swimming pool is not pecuniarily liable for the negligence of its officers or servants in the discharge of their duties relating to that particular function." Gebhardt v. Village of LaGrange Park. 354 111. 234,188 N.E. 372 (1933). The Appellate Court disagreed with the plaintiffs argument that Section 3-108(b) of the Tort Immunity Act imposed such liability.

The Chicago Park District was represented in the Brown case by James D. Wascher of Friedman & Holtz, P.C. in Chicago. The Park District Risk Management

Illinois Parks and Recreation |16 September/October 1991

Agency, the Suburban Schools Cooperative Insurance Program, the Suburban Risk Management Agency and the Intergovernmental Park Management Agency had jointly filed a friend of the court brief with the Appellate Court in support of the Park District's position. Plaintiffs petition for rehearing was denied by Appellate Court on Sept. 24, 1991.

In a related development, Judge Jerome T. Burke of the Circuit Court of Cook County ruled on June 12,1991, that a park district has no legal duty to prevent a child from drowning in one of its outdoor swimming pools if the child enters the pool outside of normal operating hours. Consuela McNeal v. Chicago Park District. Case No. 90L000203.

Judge Burke dismissed the plaintiffs complaint, ruling from the bench that "there's demonstrated a lack of common law duty... and Section 3-108 [of the Tort Immunity Act] further goes to exculpate the Park District."

Mr. Wascher of Friedman & Holtz, P.C., also represented the Chicago Park District in the McNeal case.

The U.S. District Court in Chicago ruled on June 14, 1991, that a private trap shooting club occupying Chicago Park District property under a long-term permit agreement did not have any legal right to remain on the site after the Park District's Board of Commissioners voted to terminate the permit agreement. Rufus Taylor v. Chicago Park District. Case No. 91C2380.

The gun club filed suit against the Park District on April 22,1991, claiming that it had acquired a "property interest" in remaining on the three-acre, lake front site because it has been there for 79 years, the last 16 of them under a permit agreement that either party could terminate by giving the other party 30 days written notice. The gun club contended that the Park District could terminate the permit agreement only for "a good faith and objective reason."

U.S. District Judge John A. Nordberg ruled that the gun club's permit agreement was "an at-will contract... [which] can be terminated' for any reason, good cause or not, or no cause at all.'" As a result, he held that the gun club has "no constitutionally protectable interest" in remaining on the Park District's property, and "must vacate the premises" as soon as the 30-day notice period expired.

Judge Nordberg denied the gun club's motion for a preliminary injunction that would have barred termination of the permit agreement without a prior hearing, and granted the Park District's motion to dismiss the case. He also adopted in full a report and recommendation issued in the case by Magistrate Judge Elaine E. Bucklo on May 22, 1991.

Magistrate Judge Bucklo found that there was nothing in the language of the permit agreement "that reasonably would confer any expectation that the gun club could continue indefinitely to occupy the Lincoln Park site." In particular, she noted that neither the permit agreement nor any Park District ordinance, rule or regulation explicitly limited the Park District's right to revoke the permit agreement. Magistrate Judge Bucklo emphasized that the gun club's "long and continued operation" on the site did not vest it with any property right to remain there. She also cautioned that if, through a long-term permit or lease, a park district "contracted to limit its discretion to determine the best use of [its] property for the benefit of public generally, forever (absent "just cause" to terminate)," this action would be of doubtful legality under a 1944 Illinois Appellate Court decision also involving the Chicago Park District and the Lincoln Park Gun Club. Lincoln Park Traps v. Chicago Park District. 323 111. App. 107, 55 N.E.2d 173 (1st Dist. 1944).

Both Magistrate Judge Bucklo and Judge Nordberg also rejected the gun club's claim that the Illinois Administrative Procedure Act applied to the Park District's termination of the permit agreement with the gun club, and therefore required the Park District to hold a pre-termination hearing.

The Administrative Procedure Act covers any unit of government that is "a body politic and corporate of the State." Of course, all Illinois park districts are bodies politic and corporate. However, according to Magistrate Judge Bucklo's report and recommendation, a park district is "a unit of government that, while created by the legislature, 'exercises a specific and distinct Governmental function' that is' separate and apart from State Government.'" Accordingly, park districts are not bodies politic and corporate "of the State."

Lead counsel for the Chicago Park District in the gun club case was James D. Wascher of Friedman & Holtz, P.C. in Chicago. Nelson A. Brown, Jr. and Paul L. Stephanides of the Chicago Park District's Law Department were co-counsel.

Illinois Parks and Recreation 17 September/October 1991