{
  "id": 3254770,
  "name": "DJUAN T. DAVIS, Appellant, v. THE CHICAGO HOUSING AUTHORITY, Appellee",
  "name_abbreviation": "Davis v. Chicago Housing Authority",
  "decision_date": "1990-05-23",
  "docket_number": "No. 68104",
  "first_page": "296",
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    {
      "cite": "176 Ill. App. 3d 976",
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  "last_updated": "2023-07-14T19:08:10.696220+00:00",
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  "casebody": {
    "judges": [],
    "parties": [
      "DJUAN T. DAVIS, Appellant, v. THE CHICAGO HOUSING AUTHORITY, Appellee."
    ],
    "opinions": [
      {
        "text": "JUSTICE WARD\ndelivered the opinion of the court:\nThe plaintiff, Djuan T. Davis, by his mother, Marsha Davis, appeals from an appellate court reversal of the trial court\u2019s holding in the circuit court of Cook County that section 3 \u2014 106 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 1 \u2014 101 et seq.) (the Tort Immunity Act) does not apply to the defendant, Chicago Housing Authority (CHA), a municipal corporation.\nOn August 5, 1983, the plaintiff, a minor, was injured in a playground in Chicago. The playground is owned, operated, maintained, and controlled by the defendant and is for the exclusive use of its tenants, residents, and their guests.\nThe plaintiff alleged that the defendant had been careless and negligent in the maintenance and operation of the playground. The trial court granted the defendant\u2019s motion under Supreme Court Rule 308(a) (107 Ill. 2d R. 308(a)) to certify the question whether section 3\u2014 106 of the Tort Immunity Act was applicable to the CHA, and the appellate court granted the defendant\u2019s application for leave to appeal. The appellate court, reversing the circuit court, held that section 3 \u2014 106 of the Tort Immunity Act did apply. (176 Ill. App. 3d 976, 986.) Section 3 \u2014 106 of the Tort Immunity Act provides:\n\u201cNeither 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 willful and wanton negligence proximately causing such injury.\u201d Ill. Rev. Stat. 1985, ch. 85, par. 3 \u2014 106.\nThus, the question for us is whether section 3 \u2014 106 confers immunity upon the CHA from liability for injuries sustained in a playground provided for the exclusive use of its tenants and their guests.\nThe plaintiff contends that section 3 \u2014 106 of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 3 \u2014 106) should be read to exclude the CHA from the statute\u2019s protection. The plaintiff argues that the immunity conferred by section 3 \u2014 106 extends only to parks, playgrounds, or open areas available for and open to the use of the general public. He says that the Tort Immunity Act does not apply to the CHA because its recreational facilities are provided solely for the use of its tenants and their guests. Too, the plaintiff contends that the playgrounds, owned and maintained by the CHA, represent an exercise of the CHA\u2019s proprietary function under the Housing Cooperation Law (Ill. Rev. Stat. 1985, ch. 67V2, par. 28 et seq.). If this court were to view the maintenance of the playgrounds as a proprietary function, the plaintiff argues that the Tort Immunity Act would not apply because the General Assembly did not intend to immunize the CHA from liability attaching to proprietary acts. Finally, the plaintiff contends that section 3 \u2014 106 of the Tort Immunity Act is violative of artiele I, section 12, of the constitution of Illinois (Ill. Const. 1970, art. I, \u00a712), which provides that every person shall find a certain remedy for all injuries to person or property; the Illinois equal protection clause (Ill. Const. 1970, art. I, \u00a72); and the proscription against special legislation (Ill. Const. 1970, art. IV, \u00a713).\nThe defendant argues that the plain language of the Tort Immunity Act requires that the CHA be immune from suit when the complaint is founded on the claimed negligence of a \u201clocal public entity.\u201d The defendant argues that the provision of recreational facilities is a governmental function and, as such, brings any claim connected with the recreational facilities within the protection of the Tort Immunity Act.\nUnder section 1 \u2014 206 of the Act, a local public entity includes a municipal corporation. (Ill. Rev. Stat. 1985, ch. 85, par. 1 \u2014 206.) The Act defines \u201cproperty of a local public entity\u201d and \u201cpublic property\u201d as \u201creal or personal property owned or leased by a local public entity.\u201d Ill. Rev. Stat. 1985, ch. 85, par. 3 \u2014 101.\nThe plaintiff concedes that the defendant, the CHA, as a municipal corporation, is a local public entity under section 1 \u2014 206 (Ill. Rev. Stat. 1985, ch. 85, par. 1 \u2014 206). The CHA is a municipal corporation under the Housing Cooperation Law (Ill. Rev. Stat. 1985, ch. 67\u00bd, par. 28 et seq.). The parties agree that the playground in question is public property as defined in the Tort Immunity Act under section 3 \u2014 101 (Ill. Rev. Stat. 1985, ch. 85, par. 3 \u2014 101). But the plaintiff contends that, to claim immunity under the Act, the \u201cpublic property\u201d must be open for use by the general public. He argues that as the use of the defendant\u2019s playground is not open to the public, the defendant is not within the protection of the Act. That the general public has access to property in order that it be considered public property is neither expressly stated in the Act nor can it reasonably be implied.\nThis court has stated that the General Assembly has \u201cthe power to define the terms, within a statute, in any reasonable manner.\u201d (Commonwealth Edison Co. v. Property Tax Appeal Board (1984), 102 Ill. 2d 443, 457.) The General Assembly has defined the terms \u201clocal public entity\u201d and \u201cpublic property\u201d simply and in a reasonable manner. A \u201clocal public entity\u201d includes a municipal corporation. (Ill. Rev. Stat. 1985, ch. 85, par. 1 \u2014 106.) \u201cPublic property\u201d means any real or personal property owned or leased by a local public entity. (Ill. Rev. Stat. 1985, ch. 85, par. 3 \u2014 101.) The General Assembly, in defining public property, did not include a requirement that the property must be open for public use.\nThe plaintiff\u2019s complaint that the Tort Immunity Act does not apply to the defendant because the providing by the CHA of recreational facilities is proprietary rather than governmental is unfounded. Courts, when drawing a distinction between governmental and proprietary functions, have in general extended immunity to governmental functions but not to proprietary functions. Gebhardt v. Village of LaGrange Park (1933), 354 Ill. 234.\nThere can be no question that the providing of a playground is a governmental activity. The General Assembly, in drafting the Housing Cooperation Law (Ill. Rev. Stat. 1985, ch. 67\u00bd, par. 28 et seq.), provided that the powers conferred on housing authorities are public objects and governmental functions essential to the public interests. (Ill. Rev. Stat. 1985, ch. 67\u00bd, par. 29.) Further, the Housing Cooperation Law states:\n\u201cFor the purpose of aiding and cooperating in the planning, *** improvement, *** repair or operation of housing projects located in whole or in part within the area in which it is authorized to act, any State Public Body [including a municipal corporation] may ***:\n* * *\n(b) Cause parks, playgrounds, recreational *** facilities, *** to be furnished adjacent to or in connection with housing projects.\u201d (Emphasis added.) Ill. Rev. Stat. 1985, ch. 67\u00bd, par. 31.\nThe plaintiff finally and unconvincingly argues that the result of holding the defendant within the immunity protections of the Tort Immunity Act results in a violation of article I, section 12, of the Illinois Constitution; of the equal protection clause; and of the proscription against special legislation. Granting immunity only to governmental bodies, like the defendant here, is the basis of the plaintiffs claims of unconstitutionality. Because the contentions are raised here for the first time, the defendant argues that the plaintiff has waived argument on them, but we consider it appropriate to address them.\nThere is no substance to the claims. In Bilyk v. Chicago Transit Authority (1988), 125 Ill. 2d 230, 236, this court considered identical claims that the statute involving the Chicago Transit Authority was violative of article I, section 12, of the constitution; of the equal protection clause; and of the proscription against special legislation. This court held: \u201cStatutory and common law provisions which differentiate between municipal and private corporations as to tort liability have been held reasonable and valid classifications under the equal protection and special legislation clauses.\u201d\nMcQuillin on Municipal Corporations states:\n\u201cThe reason [for tort immunity of local government entities] is one of public policy, to protect public funds and public property. \u2018Taxes are raised for certain specific governmental purposes; and, if they could be diverted to the payment of the damage claims, the more important work of government, which every municipality must perform regardless of its other relations, would be seriously impaired if not totally destroyed. The reason for the exemption is sound and unobjectionable. \u2019 \u201d 18 McQuillin on Municipal Corporations \u00a753.24 (1963).\nThus, there has been no injury or wrong to be redressed under article I, section 12, of our constitution.\nFor the reasons given, the judgment of the appellate court is affirmed.\nJudgment affirmed.",
        "type": "majority",
        "author": "JUSTICE WARD"
      }
    ],
    "attorneys": [
      "Harvey L. Walner & Associates, Ltd., of Chicago (Lawrence Schlam, of De Kalb, of counsel), for appellant.",
      "Mitchell Ware, David S. Allen, Frank M. Grenard and Anthony C. Swanagan, of Jones, Ware & Grenard, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "(No. 68104.\nDJUAN T. DAVIS, Appellant, v. THE CHICAGO HOUSING AUTHORITY, Appellee.\nOpinion filed May 23, 1990.\nHarvey L. Walner & Associates, Ltd., of Chicago (Lawrence Schlam, of De Kalb, of counsel), for appellant.\nMitchell Ware, David S. Allen, Frank M. Grenard and Anthony C. Swanagan, of Jones, Ware & Grenard, of Chicago, for appellee."
  },
  "file_name": "0296-01",
  "first_page_order": 306,
  "last_page_order": 312
}