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Docket No. 87028-Agenda 34-September 1999.

DONALD FRASER, Appellant, v. UNIVERSITIES RESEARCH ASSOCIATION, INC., Appellee.

Opinion filed December 2, 1999.

JUSTICE HARRISON delivered the opinion of the court:

Plaintiff, Donald Fraser, filed a complaint in the circuit court of Du Page County, alleging that defendant, UniversitiesResearch Association, Inc., negligently allowed a defective condition to exist on a bicycle path on its property and, as aresult of that condition, plaintiff suffered injuries while riding his bike on the path. The circuit court found the immunity ofthe Recreational Use of Land and Water Areas Act (Recreational Use Act) (745 ILCS 65/1 et seq. (West 1994)) applicableand granted summary judgment in favor of defendant. The plaintiff appealed. The appellate court affirmed (301 Ill. App. 3d511), and this court granted leave to appeal (177 Ill. 2d R. 315). For the reasons expressed below, we affirm the judgment ofthe appellate court.

In his complaint, plaintiff alleged that the defendant corporation occupied, maintained, possessed and operated the propertycommonly known as Fermi National Accelerator Laboratory in Batavia, Illinois. On May 20, 1995, the date of plaintiff'salleged injury, defendant maintained, and made available for use by the general public, certain bicycle paths on theproperty. According to plaintiff, he was riding his bicycle on one of those paths when he encountered a series of depressionsin the pavement. He rode over the depressions, fell, and was injured. Plaintiff alleged that defendant owed him a duty of"ordinary care *** pursuant to the Premises Liability Act, 740 ILCS 130/1." He claimed defendant's "negligent acts oromissions" were the cause of his injuries. Specifically, plaintiff alleged that the defendant was negligent in: (1) allowing thedepressions to exist; (2) failing to warn of their severity; (3) failing to repair the depressions; (4) failing to inspect so as tolocate such defects; and (5) failing to employ a reasonable system of inspection.

Defendant filed, inter alia, a motion for summary judgment, arguing that the Recreational Use Act applied to the factsalleged, and defendant therefore owed no duty of care to plaintiff with respect to plaintiff's use of the bicycle paths. Themotion was accompanied by the affidavit of an attorney for defendant, which stated:

"The primary purpose of the land and facilities that comprise Fermilab is the furtherance of the work performed underthe auspices of [the] U.S. Department of Energy by the Fermi National Accelerator Laboratory. There are bicyclepaths present upon the land that comprises Fermilab that are available for use by the general public. [Defendant]permits these bicycle paths to be used recreationally by members of the general public on a casual basis. The land isnot open twenty-four hours a day for these purposes. No charge is made for the use of the bicycle paths."

Defendant also attached to its motion a transcript of plaintiff's deposition testimony wherein plaintiff admitted, at the timeof the accident, he had been on defendant's bicycle paths solely for recreational purposes.

Plaintiff filed a response, arguing the applicability of the Campground Licensing and Recreational Area Act (CampgroundLicensing Act) (210 ILCS 95/2 et seq. (West 1994)), which plaintiff contended precluded defendant from relying on theimmunity of the Recreational Use Act. Plaintiff attached to his response the aforementioned affidavit of defendant'sattorney, his own affidavit, describing the character of the bike paths on the defendant's property and the entrance signsindicating the general public was welcome to use the paths, and photographic exhibits depicting the bike paths and signs.

At the hearing on the motion, plaintiff argued that the legislature had established two mutually exclusive statutory classes ofproperty when it enacted the Recreational Use Act and the Campground Licensing Act: one in which an owner of landallows others to use it for recreational purposes, but only on a "casual basis," and another for areas specifically set aside bythe owner for recreational purposes. Citing the "casual basis test," formulated in Miller v. United States, 442 F. Supp. 555(N.D. Ill. 1976), aff'd, 597 F.2d 614 (7th Cir. 1979), and thereafter applied, more or less, uniformly for several years in bothfederal and Illinois appellate cases, the plaintiff argued that Fermilab's bicycle paths were used primarily as "recreationalareas," as defined in the Campground Licensing Act, and the immunity of the Recreational Use Act was thereforeinapplicable to them. Defendant argued that the terms and immunity of the Recreational Use Act did apply to the facts asstated, in that defendant had permitted persons, such as plaintiff, to use its property for recreational purposes withoutcharge. Defendant's counsel cited language of the Campground Licensing Act (210 ILCS 95/25 (West 1994)) which heargued refers to the Recreational Use Act and specifically states that the Campground Licensing Act imposes no "additionalduty of care" on landowners otherwise subject to the terms of the Recreational Use Act. The circuit court agreed andgranted summary judgment in favor of the defendant.

In the ensuing appeal, the appellate court affirmed the judgment of the circuit court. The appellate court opinion extensivelycited Hoye v. Illinois Power Co., 269 Ill. App. 3d 597 (1995), and like Hoye, rejected the casual basis test, finding that "the[Campground Licensing and ] Recreational Area Act does not restrict the applicability of the Recreational Use Act." 301 Ill.App. 3d at 518.

We agree. The facts before the circuit court engender no conflict in the application of the Recreational Use Act and theCampground Licensing Act. We begin our analysis by examining the relevant provisions of the two acts, past and present.

Enacted in 1965, the stated purpose of the Recreational Use Act was, and is, "to encourage owners of land to make land andwater areas available to the public for recreational or conservation purposes by limiting their liability toward personsentering thereon for such purposes." 745 ILCS 65/1 (West 1994). To that end, the legislature has provided:

"Except as specifically recognized by or provided in Section 6 of this Act, an owner of land owes no duty of care tokeep the premises safe for entry or use by any person for recreational or conservation purposes, or to give anywarning of a natural or artificial dangerous condition, use, structure, or activity on such premises to persons enteringfor such purposes." 745 ILCS 65/3 (West 1994).

Section 4 of the Recreational Use Act (745 ILCS 65/4 (West 1994)) spells out the immunity in greater detail:

"Except as specifically recognized by or provided in Section 6 of this Act, an owner of land who either directly orindirectly invites or permits without charge any person to use such property for recreational or conservation purposesdoes not thereby:

(a) Extend any assurance that the premises are safe for any purpose.

(b) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.

(c) Assume responsibility for or incur liability for any injury to person or property caused by an act or omission ofsuch person or any other person who enters upon the land.

(d) Assume responsibility for or incur liability for any injury to such person or property caused by any natural orartificial condition, structure or personal property on the premises."

Section 6 of the Act, referenced in the preceding two sections, states that the Act's limitation of liability does not extend toa "willful or wanton failure to guard or warn against a dangerous condition, use, structure, or activity." 745 ILCS 65/6(a)(West 1994). Nor does limited liability extend to "injury suffered in any case where the owner of land charges the person orpersons who enter or go on the land for the recreational use thereof ." 745 ILCS 65/6(b) (West 1994).

As originally enacted, and until December 8, 1987, the Recreational Use Act defined "land" as follows:

"(a) 'Land' means land located outside the corporate limits of a city, village or incorporated town and not subdividedinto blocks and lots and includes roads, water, watercourses, private ways and buildings, structures, and machinery orequipment when attached to the realty." Ill. Rev. Stat. 1985, ch. 70, par. 32(a).

The Campground Licensing Act was enacted in 1972. Its stated purpose is to "protect, promote, and preserve the publichealth, safety and general welfare by providing for the establishment and enforcement of minimum standards for safety,cleanliness and general sanitation for all recreational areas and campgrounds now in existence or hereafter constructed ordeveloped and to provide for inspection of all such facilities and the licensing of campgrounds." 210 ILCS 95/3 (West1994).

The Campground Licensing Act applies to both "campgrounds" and "recreational areas," defining the latter as "any area ofland which is designed, constructed, operated or maintained either free of charge or for revenue purposes for recreationalactivities." 210 ILCS 95/2(a) (West 1994). The Act provides that "[a]ny person who constructs, operates, maintains or ownsa recreational area shall comply with the requirements of this Act and the rules and regulations promulgated hereunder bythe Department [of Public Health], and all recreational areas that are campgrounds shall be licensed in accordance with thisAct." 210 ILCS 95/4 (West 1994).

Of the provisions which follow, many apply exclusively to campgrounds and their licensing. See 210 ILCS 95/5, 6, 7, 10,14, 15 (West 1994). The cited sections apparently do not apply to "recreational areas," which are not required to be licensedunder the Act. Even owner/operator representation on the Campground Licensing and Recreational Area Advisory Councilis limited to three seats for operators of "campgrounds." There is no place on the council for owners of "recreational areas."210 ILCS 95/22 (West 1994).

While the focus of the Campground Licensing Act is clearly campground regulation, it also applies specifically torecreational areas. Section 21(a) of the Act empowers the Department to "promulgate such rules and regulations as may benecessary for the proper enforcement of [the] Act, to protect the health and safety of the public using such recreational areasand campgrounds." 210 ILCS 95/21(a) (West 1994). Those regulations "include, but are not limited to, standards relating towater supply, sewage and solid waste disposal, food service sanitation, design of buildings, rodent and insect control, waterand swimming hazards, first aid, communicable disease control, safety, cleanliness and sanitation." 210 ILCS 95/21(a)(West 1994). To ensure compliance with the Act and departmental regulations issued pursuant thereto, the Act authorizesand directs the Department to conduct inspections and investigations (210 ILCS 95/8, 9 (West 1994)) and requires owners,licensees and occupants of recreational areas and campgrounds to provide access to the Department for the purpose ofinspection. 210 ILCS 95/11 (West 1994). The Act provides that the Department must give written notice of any allegedviolation to the owner, operator, licensee or permit holder, specifying the reason for issuance of the notice, allowing areasonable time "for the performance of any act it requires," and containing an outline of remedial action which will effectcompliance with the provisions of the Act and the rules and regulations issued thereunder. 210 ILCS 95/13 (West 1994).The scheme of notice, allowing an opportunity for remediation, is evidently meant as a precursor to the more drasticmeasures of suspension or revocation of a permit or license (210 ILCS 95/14 (West 1994)), although it is not specificallylimited in its application to permit holders or licensees. Finally, the Act provides for criminal penalties, stating, "Anyperson who violates this Act or any rule or regulation adopted by the Department, or who violates any determination ororder of the Department under this Act shall be guilty of a Class B misdemeanor." 210 ILCS 95/24 (West 1994).

Soon after the enactment of what was then the Recreational Area Licensing Act, a federal district court perceived a need toreconcile that Act with the Recreational Use Act, and attempted to do so by reading the two statutes in pari materia. TheMiller court concluded:

"[T]he Recreational Use of Land and Water Areas Act is intended for those who permit open lands to be usedrecreationally on a casual basis. But those who hold their property out to the public for recreational purposes, andmaintain their property for recreational use by the number of persons that are prerequisite to the application of theRecreational Area Licensing Act [now the Campground Licensing and Recreational Area Act], they are subject to theprovisions of the latter and not entitled to the asserted protection of the former." Miller, 442 F. Supp. at 561.

The district court's decision was, as previously noted, affirmed by the United States Court of Appeals (Miller v. UnitedStates, 597 F.2d 614 (7th Cir. 1979)) and thereafter followed or cited with approval in various decisions both federal andstate.

In 1987, amendments to the Recreational Use Act and the Campground Licensing Act effected changes which indicate botha legislative intent to broaden the category of land qualifying for the immunity of the Recreational Use Act and an intent tolimit the purview of the Campground Licensing Act. The amendment to the Recreational Use Act expanded the Act'sdefinition of "land," removing language which had limited the Act's application to "land located outside the corporatelimits of a city, village or incorporated town and not subdivided into blocks and lots." Ill. Rev. Stat. 1985, ch. 70, par. 32(a).At the same time, the legislature limited the reach of the Campground Licensing Act by specifically providing, "Nothing inthis Act shall be construed to impose any additional duty of care on an owner of land who either directly or indirectlyinvites or permits without charge, as defined in the Recreational Use of Land and Water Areas Act, any person to use suchproperty for recreational purposes." Ill. Rev. Stat. 1987, ch. 111