Find Legal Information

FIFTH DIVISION
July 27, 2001

JUSTICE THEIS delivered the opinion of the court:

Diane Adamczyk brought a negligence action against Township HighSchool District 214 (the School District) and Buffalo Grove HighSchool⁽¹⁾ after she was injured in the parking lot of the school. Thecircuit court granted the School District's motion for summaryjudgment, ruling that Adamczyk's claim was barred by section 3-106 ofthe Local Governmental and Governmental Employees Tort Immunity Act(Tort Immunity Act) (745 ILCS 10/3-106 (West 1996)). We reverse andremand.

On Sunday, March 24, 1996, Adamczyk was injured when she fell ina hole in the parking lot of Buffalo Grove High School. The parkinglot was located near the front entrance of the school and providedaccess to the gymnasium, front entrance and visitor parking. At thetime of her fall, Adamczyk's son had just finished playing basketballin the gymnasium as part of a Buffalo Grove Park District (the ParkDistrict) sponsored league.

Adamczyk filed a single-count negligence complaint against boththe school and the School District. The School District filed amotion to dismiss based on section 3-106 of the Tort Immunity Act,which was denied. The School District next filed a motion for summaryjudgment based in part on section 3-106 of the Tort Immunity Act,which was also denied. The School District then filed a third-partyaction against the Park District for contribution, breach of contractand contractual indemnity, contending that the Park District leasedthe facilities at Buffalo Grove High School from the School Districtat the time of Adamczyk's injury and was therefore liable.

The Park District filed a combined motion to dismiss the third-party complaint pursuant to sections 2-619 and 2-615 of the IllinoisCode of Civil Procedure, partly based on section 3-106 of the TortImmunity Act. 735 ILCS 5/2-619, 2-615 (West 1996). In its responseto the combined motion to dismiss, the School District agreed with aportion of the motion and argued that section 3-106 immunity appliedto immunize both the School District and the Park District. The trialcourt then chose to consider this motion as both the Park District'smotion to dismiss the third-party complaint and as the SchoolDistrict's motion to reconsider its motion for summary judgment on theoriginal complaint, narrowing the issue to section 3-106 immunity. The court granted the School District's motion to reconsider, grantedsummary judgment in favor of the School District, granted the ParkDistrict's motion to dismiss and dismissed the third-party complaintwith prejudice. Adamczyk then filed this timely appeal.

Summary judgment is appropriate where the pleadings, depositions,admissions, and affidavits on file present no genuine issue ofmaterial fact and show that the moving party is entitled to judgmentas a matter of law. 735 ILCS 5/2-1005(c) (West 1998); Jones v.Chicago HMO Ltd., 191 Ill. 2d 278, 291, 730 N.E.2d 1119, 1127 (2000). We review a grant of summary judgment de novo, construing the evidencein the record strictly against the movant and liberally in favor ofthe opponent. Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 424,706 N.E.2d 460, 463 (1998); Wallace v. Metropolitan Pier & ExpositionAuthority, 302 Ill. App. 3d 573, 576, 707 N.E.2d 140, 142 (1998).

The sole issue on appeal is whether section 3-106 of the TortImmunity Act applies to the parking lot of a public high school,thereby immunizing the school district and park district fromliability for ordinary negligence and barring plaintiff's claim.

Section 3-102 of the Tort Immunity Act imposes a general duty onlocal public entities to exercise ordinary care in maintaining publicproperty in a reasonably safe condition. 745 ILCS 10/3-102(a) (West1996); Bubb v. Springfield School District 186, 167 Ill. 2d 372, 377,657 N.E.2d 887, 891 (1995). Section 3-106, however, provides publicentities with an affirmative defense which bars a plaintiff's right torecovery for ordinary negligence. That section states:

"Neither a local public entity nor a publicemployee is liable for an injury where theliability is based on the existence of a conditionof any public property intended or permitted to beused for recreational purposes, including but notlimited to parks, playgrounds, open areas,buildings or other enclosed recreationalfacilities, unless such local entity or publicemployee is guilty of willful and wanton conductproximately causing such injury." 745 ILCS 10/3-106 (West 1996).

It is undisputed that the School District and the Park District arelocal public entities and Buffalo Grove High School is publicproperty. Further, Adamczyk's complaint alleged only negligence andnot willful and wanton conduct.

Section 3-106 was enacted to encourage the development andmaintenance of public parks, playgrounds and similar recreationalareas. Kayser v. Village of Warren, 303 Ill. App. 3d 198, 200, 707N.E.2d 285, 287 (1999). "By providing immunity, the legislaturesought to prevent the diversion of public funds from their intendedpurpose to the payment of damage claims." Bubb, 167 Ill. 2d at 378,657 N.E.2d at 891. The statute, however, does not mention publicschools.

Courts have applied two separate analyses in determining whetherproperty is immune under section 3-106: (1) whether the propertyitself is intended or permitted to be used for recreational purposes;and (2) whether the property in question, though not itselfrecreational, increases the usefulness of the adjacent recreationalproperty. The School District and the Park District concede that theissue here is not whether the parking lot is intended or permitted tobe used for recreational purposes, but whether the parking lotincreases the usefulness of the gymnasium.

The question of whether the parking lot of a public school isimmune under section 3-106 is one of first impression for this court. Adamczyk contends that Buffalo Grove High School's regular purpose waseducational and, while the gymnasium was recreational property, theparking lot was merely incidental to the use of the gymnasium and,therefore, section 3-106 immunity does not apply. The School Districtand the Park District together argue that the school gymnasiumconstituted recreational property on the date and time of Adamczyk'sinjury, the parking lot near the gymnasium increased the gymnasium'susefulness and is thus immune under Sylvester v. Chicago ParkDistrict, 179 Ill. 2d 500, 689 N.E.2d 1119 (1997).

In Sylvester, plaintiff fell over a concrete parking abutmenton a walkway adjacent to a Soldier Field parking lot on her way to aChicago Bears football game. 179 Ill. 2d at 502, 689 N.E.2d at 1121. The Illinois Supreme Court found that Soldier Field itself wasrecreational property and held that section 3-106 may apply tofacilities or structures, themselves not recreational in nature, "thatincrease the usefulness of public property intended or permitted to beused for recreational purposes." Sylvester, 179 Ill. 2d at 508, 689N.E.2d at 1124. The court examined the "Soldier Field recreationalfacility" as a whole and included the parking lots within thatfacility. Sylvester, 179 Ill. 2d at 509, 689 N.E.2d at 1124. Thesupreme court held that the parking lots and walkways adjacent toSoldier Field increased its usefulness and were therefore permitted orintended to be used for recreational purposes under section 3-106. Sylvester, 179 Ill. 2d at 508, 689 N.E.2d at 1124.

The School District and the Park District apply Sylvester to thiscase and argue that, because Adamczyk's injury occurred on Sunday,where the only activity at the school was a Park District-sponsoredbasketball game in the gymnasium, the gymnasium was exclusivelyrecreational and, thus, the adjacent parking lot used to access thegymnasium was immune under the increased usefulness test in Sylvester. However, Illinois courts have made clear that the character and natureof the property as a whole determines the application of section 3-106immunity, not the plaintiff's use of the property or her activity atthe time of her injury. Sylvester, 179 Ill. 2d at 509, 689 N.E.2d at1124; Bubb, 167 Ill. 2d at 379, 657 N.E.2d at 891; Kayser, 303 Ill.App. 3d at 200-01, 707 N.E.2d at 287; Hanover Insurance Co. v. Boardof Education of the City of Chicago, 240 Ill. App. 3d 173, 176, 608N.E.2d 183, 185 (1992). Therefore, the application of section 3-106immunity must be based on a case-by-case evaluation of the nature ofthe property. Bubb, 167 Ill. 2d at 384, 657 N.E.2d at 893-94; Batsonv. Pinckneyville Elementary School District No. 50, 294 Ill. App. 3d832, 835, 690 N.E.2d 1077, 1079 (1998). We therefore rejectdefendants' argument.

Here, the record shows that the parking lot in question providedaccess to the gymnasium and front entrance of the school and was usedfor visitor parking. Adamczyk testified in her deposition that theparking lot was adjacent to the gymnasium, approximately 30 feet fromits entrance. There was also a back parking lot that Adamczyktestified was not closest to the gymnasium, which accessed other partsof the school. John Mullens, an investigator hired by Adamczyk,stated in his affidavit that he observed and photographed BuffaloGrove High School and the adjacent parking lots. Mullens stated thatthis parking lot was directly adjacent to the front entrance of theschool and was the closest parking lot to that entrance. Hisphotographs reveal that this parking lot facilitated access to severalparts of the high school in addition to the gymnasium.

Based on this evidence, we find that this parking lot served theschool as a whole, providing access to the front entrance of thebuilding as well as the gymnasium and other areas. The parking lotwas integral to the entire school, not just the gymnasium as theSchool District and the Park District suggest. Thus, we must look atBuffalo Grove High School as a whole, not merely the gymnasium, whendetermining the nature of the property.

Public property may have more than one intended use. Bubb, 167Ill. 2d at 383, 657 N.E.2d at 893. As a school, Buffalo Grove HighSchool is an educational institution with one of its purposes toeducate its students. Also, the school permits or intends portions ofits property to be used for recreational purposes, namely, thegymnasium. Therefore, Buffalo Grove High School is a multipurposefacility permitting both recreational and nonrecreational activities.

Several previous cases have held that the fact that facilitieshave both recreational and nonrecreational purposes does not defeatthe applicability of section 3-106. These facilities include a publiccommunity building (Kayser, 303 Ill. App. 3d at 203, 707 N.E.2d at289); a public harbor (Baggio v. Chicago Park District, 289 Ill. App.3d 768, 772, 682 N.E.2d 429, 432 (1997)); a public convention center(Diamond v. Springfield Metropolitan Exposition Auditorium Authority,44 F.3d 599, 602-04 (7th Cir. 1995)); and Navy Pier, a property withparks, gardens, shops, restaurants and entertainment attractions aswell as commercial activities (Wallace, 302 Ill. App. 3d at 578, 707N.E.2d at 144). In those cases, courts have found that, because onepurpose of the facility was recreational, section 3-106 applied anddefendants were immune from liability. These cases, however, aredistinguishable.

In Wallace, the court held that section 3-106 does not applywhere the use of the public property was merely incidental to theproperty's overall and regular use. 302 Ill. App. 3d at 577, 707N.E.2d at 143. Moreover, Bubb agreed that providing immunity to anypublic property where recreation might occur would eliminate the dutyimposed on public entities under section 3-102 of the Tort ImmunityAct. 167 Ill. 2d at 382, 657 N.E.2d at 893. At some point, thesupreme court stated, "the use of public property for recreation maybe so incidental that section 3-106 does not apply." Bubb, 167 Ill.2d at 382, 657 N.E.2d at 893.

In Kayser, Wallace, Diamond and Baggio, the overall and regularuse of the property was recreational. Navy Pier, a communitybuilding, a convention center and a public harbor all involverecreation as their regular use. The courts correctly held that thoseproperties constituted public property intended or permitted to beused for recreational purposes under section 3-106. Here, BuffaloGrove High School's overall and regular use was to educate itsstudents. Any use of the high school as a recreational facility wasmerely incidental to its regular educational function. Further, noneof these cases addressed public school property. Therefore, a publicschool cannot be compared to those multipurpose properties whoseregular and overall purpose is recreation.

Similarly, Sylvester is distinguishable because it did notconcern a multipurpose facility like Buffalo Grove High School. Instead, Soldier Field's overall and regular purpose was purelyrecreational. Soldier Field's adjacent parking lots and walkwaysserved only to benefit Soldier Field and thus increased the usefulnessof the stadium. The parking lot at Buffalo Grove High School,however, provided access to several different areas of the school,some without a recreational purpose, such as the school's frontentrance. This parking lot, then, is dissimilar to the parking lot inSylvester and does not warrant the same result.

While several cases have dealt with public schools, none haveaddressed school parking lots. These cases have found immune onlygymnasiums (Ozuk v. River Grove Board of Education, 281 Ill. App. 3d239, 244, 666 N.E.2d 687, 691 (1996)); playgrounds (Lewis v. JasperCounty Community Unit School District No. 1, 258 Ill. App. 3d 419,422-23, 629 N.E.2d 1227, 1229 (1994); Hanover Insurance Co., 240 Ill.App. 3d at 174, 608 N.E.2d at 184); and sidewalks intended to be usedfor recreational purposes within school grounds (Bubb, 167 Ill. 2d at382-83, 657 N.E.2d at 893; Ramos v. Waukegan Community Unit SchoolDistrict No. 60, 188 Ill. App. 3d 1031, 1036-37, 544 N.E.2d 1302, 1305(1989)). These courts did not have to decide whether a school parkinglot was recreational or whether the entire school constitutedrecreational property.

While not addressing this exact issue, the Illinois Supreme Courtforeshadowed its answer to this situation in Bubb. The courtacknowledged that one reading of Ramos suggested that a schooldistrict would be absolutely immune from liability for injuriesarising on all nonplayground school property, absent proof of willfuland wanton conduct. Bubb, 167 Ill. 2d at 383-84, 657 N.E.2d at 893. The Bubb court then rejected this statement, stating that it did "nothold that section 3-106 immunity should be applied to all schoolproperty per se." Bubb, 167 Ill. 2d at 384, 657 N.E.2d at 893. Thesupreme court suggested that, while certain areas of public schoolsconstitute public property intended or permitted to be used forrecreational purposes and are thus immune, the entire facility itselfcannot be immune per se. Bubb also agreed with the appellate court,which worried that, if the term "permitted" was given an expansiveinterpretation, "'immunity would swallow up any liability of a localpublic entity for its sidewalks or other public property.'" Bubb, 167Ill. 2d at 381, 657 N.E.2d at 892, quoting Bubb v. Springfield SchoolDistrict 186, 263 Ill. App. 3d 942, 945, 636 N.E.2d 4, 6 (1994),rev'd, Bubb v. Springfield School District 186, 167 Ill. 2d 372, 657N.E.2d 887 (1995). Therefore, Bubb limited its analysis to the natureof the particular public property at issue.

In following this supreme court analysis, we decline to immunizeall public school property and instead reiterate the supreme court andnumerous appellate court decisions which hold that the application ofsection 3-106 should be based on a case-by-case examination of thenature of the property. Therefore, we hold that section 3-106immunity does not apply to the Buffalo Grove High School parking lotin this case because the lot is substantially connected to the entireschool and only incidentally to the recreational property, thegymnasium.

For the foregoing reasons, we reverse the granting of the SchoolDistrict's motion for summary judgment and the Park District's motionto dismiss and remand this case for further proceedings. We alsoreinstate the School District's third-party complaint against the ParkDistrict.

Reversed and remanded.

QUINN, P.J., and REID, J., concur.

1.