{
  "id": 8499438,
  "name": "NANCY JOHN, Plaintiff-Appellant, v. THE CITY OF MACOMB et al., Defendants-Appellees",
  "name_abbreviation": "John v. City of Macomb",
  "decision_date": "1992-07-07",
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    "judges": [
      "STOUDER and McCUSKEY, JJ., concur."
    ],
    "parties": [
      "NANCY JOHN, Plaintiff-Appellant, v. THE CITY OF MACOMB et al., Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "PRESIDING JUSTICE BARRY\ndelivered the opinion of the court:\nPlaintiff brought suit against the City of Macomb and the County of McDonough claiming damages for personal injuries she suffered on June 24, 1989, in a fall on property possessed and owned by defendants, respectively. Plaintiff\u2019s complaint charges that defendants were guilty of negligence in knowingly permitting and failing to repair a dangerous condition on the courthouse lawn.\nAt the time of the accident plaintiff was attending a festival known as \u201cHeritage Days.\u201d The City moved to dismiss on the ground of governmental immunity (Ill. Rev. Stat. 1989, ch. 85, par. 3 \u2014 106). The trial court denied the motion, holding that the courthouse lawn where plaintiff fell was not specifically intended for recreational purposes. Both defendants answered the complaint, and the matter proceeded to discovery. After plaintiff was deposed, defendants moved for summary judgment, again claiming immunity pursuant to section 3 \u2014 106 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 3 \u2014 106). The court granted summary judgment in favor of both defendants and denied plaintiff\u2019s post-judgment motion. Plaintiff perfected this appeal. For reasons that follow, we reverse.\nOn review, we will sustain a trial court\u2019s grant of summary judgment only where the pleadings, depositions, admissions and exhibits of record, construed strictly against the movant, reveal that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1005(c); Rayner Covering Systems, Inc. v. Danvers Farmers Elevator Co. (1992), 226 Ill. App. 3d 507, 589 N.E.2d 1034.) In addition to the pleadings and the parties\u2019 attorneys\u2019 legal memoranda, the record before us contains a transcript of plaintiff\u2019s deposition and the parties\u2019 interrogatories and responses.\nFrom the documentation of record, the following facts appear undisputed. On the evening of June 24, 1989, the \u201cinside street\u201d around the courthouse in Macomb was closed for Heritage Days, an annual event taking place on the courthouse lawn. This inside street has several parking spaces along the curb on the northwest side, and beyond the curb is a grassy lawn. A hole was left on the lawn side of the curb where a parking meter had been removed. It had not been filled as of around 8 p.m. of the date in question when plaintiff fell. According to plaintiff, she and her husband had gone to the festival to see a band. After listening to the band, they headed toward the courthouse for a concession stand. Plaintiff stepped from the pavement of the inside street, to the curb and then to the hole in the lawn. As she fell, plaintiff\u2019s ankle \u201cpopped.\u201d She felt it swell up immediately and was taken to the hospital.\nSection 3 \u2014 106 of the Local Governmental and Governmental Employees Tort Immunity Act (the Act) provides as follows:\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 for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.\u201d (Ill. Rev. Stat. 1989, ch. 85, par. 3\u2014 106.)\nThe purpose of the legislation is to encourage the development and maintenance of parks, playgrounds and similar areas. Larson v. City of Chicago (1986), 142 Ill. App. 3d 81, 86, 491 N.E.2d 165, 168, citing Beckus v. Chicago Board of Education (1979), 78 Ill. App. 3d 558, 397 N.E.2d 175.\nThe primary issue before us is whether plaintiff\u2019s fall took place in an area \u201cintended or permitted to be used for recreational purposes.\u201d In our opinion, that issue remains a genuine question of material fact.\nFrom the record it cannot be determined whether \u201cHeritage Days\u201d is a recreational use of the courthouse lawn. Nor does the record disclose whether defendants customarily permitted any recreational activity on the lawn. The record indicates that on the night in question a band played. But permitting a band concert, without more, does not so alter the character of a public area not generally used for recreational activity that it would necessarily fall within the intended scope of section 3 \u2014 106 of the Act. In our opinion, the legislative intent of the Act is to immunize governmental entities from liability for simple negligence in areas where public activities of a sportive nature, as opposed to stage entertainment, are permitted. Similarly, the record discloses that a concession stand was permitted on the premises. This is surely a business pursuit \u2014 not one that, in itself or combined with the proximity of a band concert, renders the grounds a recreational facility for purposes of section 3 \u2014 106 of the Act.\nFurther, even assuming that recreational activities were permitted on the lawn, there is no evidence that the street, curb and the parking meter area where plaintiff fell were necessarily within the perimeter of the area where recreational activities were allowed. The record fails to establish whether admission to the festival required the purchase of tickets before entering the inside street. There is no indication of record whether any area was cordoned off for recreational activities. Although there is some indication that the street that plaintiff was leaving to proceed to the lawn had been closed, the record does not disclose whether this measure was taken for the safety of the public or to allow the street and curbing area to be used for recreation. If the public used the closed street during the festival merely for passing unmolested by motor vehicles \u2014 as opposed to racing or dancing, for example \u2014 the street and its periphery, including the parking meter area, would not necessarily be considered part of an open area where recreational activities were permitted for purposes of the Act.\nIn Larson v. City of Chicago (1986), 142 Ill. App. 3d 81, 491 N.E.2d 165, the court considered a case somewhat analogous to this. There, plaintiff was injured while roller skating on a public sidewalk in a residential neighborhood. Among the city\u2019s asserted defenses was immunity under section 3 \u2014 106 of the Act. Defendant argued that plaintiff\u2019s use in fact of the public way for recreation warranted extending the protection of the special immunity to the municipal defendant. On appeal, the court rejected the defense as inimical to the legislative intent of the provision. The court\u2019s analysis is instructive for our purposes today:\n\u201cA public sidewalk in a residential neighborhood is not similar to a park or playground which are open areas designated by a governmental entity as being specifically intended for recreational purposes. Moreover, defendant\u2019s interpretation of section 3 \u2014 106 would shield the city from liability for its negligent maintenance of any street, sidewalk or open area in the city where the injured party has been engaged in recreational activity. Nothing in the statute indicates that the legislature intended to grant such a broad scope of immunity.\u201d 142 Ill. App. 3d at 87, 491 N.E.2d at 168.\nWhile we are aware that the statute was subsequently modified to include buildings and other enclosed recreational facilities, we do not find that the legislatively intended scope of the provision was so broadened as to obviate the Larson court\u2019s observation about the types of \u201copen areas\u201d that section 3 \u2014 106 encompasses. Thus, lacking any factual basis for determining that the area where plaintiff fell was specifically intended or permitted for recreational use, we hold that defendants were not entitled to judgment on the ground of immunity under section 3 \u2014 106.\nBecause we find that defendants\u2019 right to judgment has not been established as a matter of law, we need not address plaintiff\u2019s arguments in the alternative. We reverse the judgment of the circuit court of McDonough County and remand this cause for further proceedings.\nReversed and remanded.\nSTOUDER and McCUSKEY, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE BARRY"
      }
    ],
    "attorneys": [
      "John R. Glidden and Stanley L. Tucker, both of Hartzell, Glidden, Tucker & Hartzell, of Carthage, for appellant.",
      "Stephen J. Heine and Karen L. Kendall, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellee City of Macomb.",
      "William A. Allison, of Allison & Kelly, of Bloomington, for appellee County of McDonough."
    ],
    "corrections": "",
    "head_matter": "NANCY JOHN, Plaintiff-Appellant, v. THE CITY OF MACOMB et al., Defendants-Appellees.\nThird District\nNo. 3-91-0721\nOpinion filed July 7, 1992.\nModified on denial of rehearing August 4, 1992.\nJohn R. Glidden and Stanley L. Tucker, both of Hartzell, Glidden, Tucker & Hartzell, of Carthage, for appellant.\nStephen J. Heine and Karen L. Kendall, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellee City of Macomb.\nWilliam A. Allison, of Allison & Kelly, of Bloomington, for appellee County of McDonough."
  },
  "file_name": "0877-01",
  "first_page_order": 897,
  "last_page_order": 901
}