{ "id": 5155278, "name": "CHARLES PHILLIPS, Plaintiff-Appellant, v. COMMUNITY CENTER FOUNDATION AND THE CHILDREN'S FARM, Defendant-Appellee", "name_abbreviation": "Phillips v. Community Center Foundation & the Children's Farm", "decision_date": "1992-11-13", "docket_number": "No. 1\u201491\u20140871", "first_page": "505", "last_page": "518", "citations": [ { "type": "official", "cite": "238 Ill. App. 3d 505" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "472 F. Supp. 998", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4080744 ], "weight": 2, "pin_cites": [ { "page": "1011" } ], "opinion_index": 0, "case_paths": [ "/f-supp/472/0998-01" ] }, { "cite": "297 F. Supp. 891", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5406149 ], "opinion_index": 0, "case_paths": [ "/f-supp/297/0891-01" ] }, { "cite": "564 N.E.2d 778", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "139 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5573832 ], "weight": 2, "pin_cites": [ { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/139/0229-01" ] }, { "cite": "544 N.E.2d 988", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "188 Ill. App. 3d 920", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2688984 ], "weight": 5, "pin_cites": [ { "page": "931" }, { "page": "934" }, { "page": "933" }, { "page": "934" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/188/0920-01" ] }, { "cite": "716 F.2d 418", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1890706 ], "opinion_index": 0, "case_paths": [ "/f2d/716/0418-01" ] }, { "cite": "388 N.E.2d 932", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "70 Ill. App. 3d 717", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5579207 ], "weight": 2, "pin_cites": [ { "page": "721" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/70/0717-01" ] }, { "cite": "597 F.2d 614", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 385981 ], "weight": 2, "pin_cites": [ { "page": "616" } ], "opinion_index": 0, "case_paths": [ "/f2d/597/0614-01" ] }, { "cite": "442 F. Supp. 555", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3975077 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "561" }, { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/f-supp/442/0555-01" ] }, { "cite": "583 N.E.2d 547", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "145 Ill. 2d 423", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5595581 ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0423-01" ] }, { "cite": "481 N.E.2d 840", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "134 Ill. App. 3d 1084", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3637628 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/134/1084-01" ] }, { "cite": "543 N.E.2d 1304", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "129 Ill. 2d 351", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567184 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/129/0351-01" ] } ], "analysis": { "cardinality": 1031, "char_count": 29279, "ocr_confidence": 0.778, "pagerank": { "raw": 1.27055253220498e-07, "percentile": 0.6146634417682266 }, "sha256": "92773ef4dca29d290d4afc8f6d093f0cc09c6e5fcf793bc44acfd1e85484e7b8", "simhash": "1:d286bdd2aadec59a", "word_count": 4919 }, "last_updated": "2023-07-14T19:49:43.416061+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CHARLES PHILLIPS, Plaintiff-Appellant, v. COMMUNITY CENTER FOUNDATION AND THE CHILDREN\u2019S FARM, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE EGAN\ndelivered the opinion of the court:\nThis is an appeal by the plaintiff, Charles Phillips, from an order granting summary judgment to the defendant, Community Center Foundation (the Center); the Children\u2019s Farm is part of the Center. The plaintiff had filed a personal injury action to recover damages for injuries he suffered when he fell from a horse owned by the Center which he was riding on the Center\u2019s property.\nThe Center is an organization whose mission is \u201cto enable people to develop a well-balanced quality of life and a feeling of wholeness.\u201d Reverend Frank Sanders is the executive director of the Center. The Center sponsors various religious, educational and social service programs designed to accomplish its mission, including religious retreats, an environmental education program, three summer camps, a school camp, a folk school program, a social service program dealing with alcoholism, and an educational farm called the Children\u2019s Farm. The Children\u2019s Farm is located on the east side of the Center\u2019s property, across the road from the main community center building.\nSamuel Smith was an employee of the Center from March through November of 1986. Smith had completed the Center\u2019s \u201cPathway to Sobriety\u201d program for alcoholic rehabilitation and was then hired by the Center and placed in charge of maintenance. Smith lived in a house on the western portion of the Center\u2019s property, across the highway from the Children\u2019s Farm. At his evidence deposition, Smith testified that he worked in a supervisory capacity at the Center, overseeing the physical maintenance of the buildings, vehicles and animals. He said that he supervised five to nine other people; he maintained the equipment for the horses, including saddles, and performed maintenance duties inside the barn. (Smith had earlier testified at his discovery deposition that he was not responsible for checking the condition of the horses\u2019 equipment.) Smith would sometimes ride the horses himself, and he would allow his son, his wife and his brother to ride the horses.\nThe plaintiff testified at his discovery deposition that Smith had often stated that he was in charge of everything at the Center, including maintenance and caring for the horses and equipment, and that he was \u201cin charge of the whole place.\u201d\nSanders testified at his discovery deposition that Smith was in charge of maintenance of the premises, but had nothing to do with caring for the horses or the saddles and other equipment associated with the horses. He added that Smith\u2019s maintenance responsibilities generally would not require him to go into the barn area. The Center\u2019s horses were used mainly for the summer camp program; the general public was not allowed to ride the horses. There was a sign on the gate at the entrance to the Children\u2019s Farm that said \u201cOpen By Reservation Only.\u201d Sanders said that neither Smith nor any other employee was allowed to ride or saddle the horses unless Sanders was present.\nContrary to Sander\u2019s testimony, Smith testified that he had authority to use or ride the horses himself and that everyone rode the horses on a daily basis. Smith understood that Sanders had given him authority to ride the horses himself and to allow the plaintiff to ride the horses on the date of the accident. He said that Sanders had been present on past occasions when Smith, other employees, and nonemployees had ridden the horses, and Sanders had not told Smith that allowing nonemployees to ride the horses was improper.\nThe plaintiff\u2019s complaint alleged that Smith had invited him to a birthday party for Richard Phillips, the plaintiff\u2019s brother, on Sunday, August 10, 1986. The party was held at Smith\u2019s residence on the Center\u2019s property. During the party, Smith invited the plaintiff, his brother, and several children to ride the horses; they rode the horses for short jaunts through the fields for a period of approximately one hour. Dave Schroeder, another employee of the defendant, was participating in the Pathway to Sobriety Program and was working at the Center that day; he saddled the horse that the plaintiff rode. A cinch strap broke, and the plaintiff was injured when he was thrown from the horse.\nSmith testified that the broken cinch strap was worn, dry and old and that he had complained to Sanders about the condition of the equipment on several occasions before the plaintiff\u2019s accident. Employees did not regularly inspect the saddles and cinches.\nSanders testified he knew all about cinches and saddles, that he knew that a worn-out cinch strap represented a danger to the rider of the horse and that a cinch strap may have broken before the date of the accident. He knew that the camp was using horses on Sunday.\nThe Center filed a motion for summary judgment, maintaining that it could not be held vicariously liable for the plaintiff\u2019s injuries because Smith was not acting within the course and scope of his employment when he invited the plaintiff to ride the horse. The Center\u2019s motion stated that Smith was not acting as its agent when the incident occurred, because Smith\u2019s acts were motivated by an intention to serve the personal enjoyment of his family and himself, and not the interests of the Center. Contrary to the plaintiff\u2019s contention in this court, the Center did argue that it could not be held directly liable for the plaintiff\u2019s injuries under a negligence theory because the plaintiff allegedly was a trespasser. Last, the Center maintained that it was shielded from liability by the Recreational Use of Land and Water Areas Act (or Recreational Use Act) (Ill. Rev. Stat. 1985, ch. 70, par. 31 et seq.).\nThe trial judge entered summary judgment in favor of the Center stating, \u201cThe court has adopted the argument, reasoning and law referred to in defendants\u2019 motion for summary judgment, memorandum in support of defendants\u2019 motion for summary judgment, and in defendants\u2019 reply in support of its motion for summary judgment as the basis for its ruling.\u201d\nSummary judgment is generally inappropriate when scope of employment is at issue. Only if no reasonable person could conclude from the evidence that an employee was acting within the course of employment should a court hold as a matter of law that the employee was not so acting. (Pyne v. Witmer (1989), 129 Ill. 2d 351, 543 N.E.2d 1304.) We judge that the evidence in this case does not satisfy the requirements of Pyne v. Witmer and that summary judgment was improperly granted.\nWe will first address the issue of whether the defendant has established as a matter of law that Smith was not acting as the defendant\u2019s agent when he invited the plaintiff to ride the defendant\u2019s horse. The defendant relies principally on sections 228 and 242 of the Restatement of Agency (Restatement (Second) of Agency \u00a7\u00a7228, 242 (1958)), Pyne v. Witmer (1989), 129 Ill. 2d 351, 543 N.E.2d 1304, and Wilson v. Clark Oil & Refining Corp. (1985), 134 Ill. App. 3d 1084, 481 N.E.2d 840.\nSection 228 of the Restatement, cited in Pyne and Wilson, sets forth the criteria to be used in determining whether the conduct of a servant is within the scope of employment. We point out that the comment to section 228 provides that \u201ca master may be liable if a servant speaks or acts, purporting to do so on behalf of his principal, and there is reliance upon his apparent authority or he is aided in accomplishing the tort by the existence of the agency relation.\u201d (Emphasis added.) Restatement (Second) of Agency \u00a7228, Comment a (1958).\nSection 242 provides:\n\u201cA master is not subject to liability for the conduct of a servant towards a person harmed as the result of accepting or soliciting from the servant an invitation, not binding upon the master, to enter or remain upon the master\u2019s premises or vehicle, although the conduct which immediately causes the harm is within the scope of the servant\u2019s employment.\u201d (Restatement (Second) of Agency \u00a7242 (1958).)\nAgain, we point out that the comment to section 242 provides that \u201c[t]he rule stated in this Section is applied most frequently when a servant entrusted with a custody of a vehicle, without authority or apparent authority to do so, permits or invites persons to ride on it. The rule applies also, however, to persons entering land with the permission of an employee.\u201d (Emphasis added.) Restatement (Second) of Agency \u00a7242, Comment a (1958).\nThe issue in this case, therefore, is whether the record establishes as a matter of law that Smith did not have at least apparent authority to permit the plaintiff to ride the Center\u2019s horse.\nApparent authority is that authority which a reasonably prudent person, in view of the principal\u2019s conduct, would naturally suppose the agent to possess. Acquiescence by the principal in the conduct of the putative agent is sufficient to establish apparent authority. State Security Insurance Co. v. Burgos (1991), 145 Ill. 2d 423, 583 N.E.2d 547.\nThe defendant relies heavily on the testimony of Sanders and substantially disregards the testimony of Smith. Smith testified that he worked in a supervisory capacity which included his overseeing animals; he maintained the equipment for the horses; and he maintained the saddles used on the horses. He understood that he had the authority to use or ride the horses himself, that this authority had been given to him by Sanders and that he had the authority to allow the plaintiff to ride the horse on the date of the accident. He had saddled the horses on other occasions for other individuals; he would allow other individuals to ride the horses; other employees of the defendant allowed nonemployees to ride the horses on a daily basis in the summer at times; and Smith had seen other employees\u2019 friends and relatives riding horses at the Center and other individuals would use the horses several times a week.\nSmith testified, without objection, that Sanders had to know that everyone rode the horses on a daily basis; Sanders was present when Smith rode the horses; Sanders did not say anything regarding the riding of the horses at those times and Sanders was present when Smith would allow other individuals to ride the horses and when other employees of the defendant allowed others to ride the horses. It is our judgment that a reasonable person could conclude that Sanders had acquiesced in Smith\u2019s practice of permitting others to ride the horses and that Smith had apparent authority to do so. For that reason, we conclude that the grant of summary judgment on the ground that the plaintiff had failed to establish apparent authority on the part of Smith as a matter of law was improper.\nWe turn now to the defendant\u2019s claim that the evidence establishes as a matter of law that the plaintiff was a trespasser and that, therefore, the plaintiff could recover only if he pleaded and established willful and wanton conduct on the part of the Center. (The plaintiff has not pleaded willful and wanton conduct.) We have concluded that whether Smith had apparent authority to permit the plaintiff to ride the horse presented a question of fact. That conclusion necessarily leads to our further conclusion that a fact question also exists over the status of the plaintiff. If a fact finder found that Smith did have such apparent authority, it would necessarily follow that the plaintiff was not a trespasser. For that reason, summary judgment based on the Center\u2019s claim that the record established that the plaintiff was a trespasser as a matter of law was also improper.\nThe defendant\u2019s last argument is that the Recreational Use of Land and Water Areas Act (the Act) (Ill. Rev. Stat. 1985, ch. 70, pars. 31 through 37) shielded it from liability for the plaintiff\u2019s injuries. The purpose of the Act, which was first passed in 1961, is to encourage land owners to permit persons to enter their land for recreational purposes without fear of incurring liability for injuries to those persons who did use the land for recreational purposes. (Ill. Rev. Stat. 1985, ch. 70, par. 31.) Section 3 provides that, subject to two exceptions, \u201can owner of land owes no duty of care to keep the premises safe for entry or use by any person for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.\u201d Ill. Rev. Stat. 1985, ch. 70, par. 33.\nThe exceptions to section 3 are contained in section 6 of the Act (Ill. Rev. Stat. 1985, ch. 70, par. 36):\n\u201cNothing in this Act limits in any way any liability which otherwise exists:\n(a) For willful and wanton failure to guard or warn against a dangerous condition, use, structure, or activity.\n(b) For injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that in the case of land leased to the State or a subdivision thereof, any consideration received by the owner for such lease is not a charge within the meaning of this section.\u201d\nThe Act has been interpreted by State and Federal courts but with a lack of unanimity of opinion. The first case to construe the Act was Miller v. United States (N.D. Ill. 1976), 442 F. Supp. 555, aff\u2019d (7th Cir. 1979), 597 F.2d 614. In Miller, the plaintiff was injured when he dove into shallow water in a lake owned by the United States. The government pleaded the Act as an affirmative defense. After a trial, the district judge concluded that the evidence failed to establish the affirmative defense. In doing so, the court referred to the Recreational Area Licensing Act (Licensing Act). (Ill. Rev. Stat. 1971, ch. 111\u00bd, pars. 761 through 785.) The district judge said the following:\n\u201cThe entire legislative scheme should be read in pari materia. When it is, it becomes clear that the Recreational Use of Land and Water Areas Act is intended for those who permit open lands to be used recreationally on a casual basis. But those who hold their property out to the public for recreational purposes, and maintain their property for recreational use by the number of persons that are prerequisite to the application of the Recreational Area Licensing Act, they are subject to the provisions of the latter and not entitled to asserted protection of the former.\u201d (Miller, 442 F. Supp at 561.)\nThe Court of Appeals agreed with the district judge. Miller, 597 F.2d at 616.\nIt is appropriate at this point to discuss the Licensing Act, which was first passed 10 years after the Recreational Use of Land and Water Areas Act and provided that all recreational areas be licensed. A \u201crecreational area\u201d was defined as follows:\n\u201c(a) \u2018Recreational Area\u2019 is any area of land where 1 or more tents, cabins, recreational vehicles or other permanent or non-permanent type shelters are erected and maintained for 10 or more persons for 7 or more consecutive days or 10 or more days during a calendar year for recreational activities, or camping; or where space for 10 or more persons for 7 or more consecutive days or 10 or more days during a calendar year for recreational activities, camping or temporary parking of recreational vehicles is furnished either free of charge or for revenue purposes, for the placing of such tents, cabins, recreational vehicles or other permanent or non-permanent type shelters; or where space for recreational activities or camping is permitted for 10 or more persons for 7 or more consecutive days or 10 or more days during a calendar year either free of charge or for revenue purposes without shelters of any kind, and it shall include any structure, tent, vehicle, enclosures, recreational vehicle facility or equipment related or used or intended for use as a part of such recreational area.\u201d Ill. Rev. Stat. 1971, ch. 111\u00bd, par. 762(a).\nThe Licensing Act was amended in 1985. At the time of this occurrence, the Licensing Act, then and now called the Campground Licensing and Recreational Area Act, provided for the licensing only of a \u201ccampground\u201d but provided that all \u201crecreational areas\u201d must comply with the rules of the Department of Public Health. (Ill. Rev. Stat. 1985, ch. 111\u00bd, par. 764.) Section 2 of the 1985 Act contained the following definitions:\n\u201c(a) \u2018Recreational Area\u2019 is any area of land which is designed, constructed, operated or maintained either free of charge or for revenue purposes for recreational activities.\n(b) \u2018Recreational Activities\u2019 include, but are not limited to hunting, fishing, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, festivals, public gatherings and visiting historical, archeological, scenic or scientific sites, or for any purpose, including but not limited to educational, vocational and religious activities and assemblies.\u201d Ill. Rev. Stat. 1985, ch. 111\u00bd, par. 762.\nThe first Illinois State court to consider the Recreational Use Act was Johnson v. Stryker Corp. (1979), 70 Ill. App. 3d 717, 388 N.E.2d 932, in which the plaintiff sued a landowner for the death of her child, who was injured when diving into a pond owned by the defendant. The defendant pleaded the Recreational Use Act as an affirmative defense, which was stricken by the trial judge. The basis of the judge\u2019s ruling was that the property was not open to the public. Testimony showed that some school children could and did use the pond, after being given permission by the property owner. Signs were posted, one reading, \u201cSwim at Your Own Risk \u2014 We Are Not Responsible\u201d and another reading, \u201cPrivate Property \u2014 No Swimming on Holidays \u2014 Do Not Litter \u2014 Pick Up Your Own Trash.\u201d\nThe First District Appellate Court agreed with Miller v. United States that the Recreational Use Act is applicable to those who permit their lands to be used recreationally on a casual basis but did not agree with Miller that the Act did not apply unless the property owner made his land available to the general public for recreational purposes. 70 Ill. App. 3d at 721.\nIn Davis v. United States (7th Cir. 1983), 716 F.2d 418, the Court of Appeals interpreted Stryker to be an obiter dictum, holding that a landowner subject to the Licensing Act might still be entitled to the immunity of the Recreational Use Act. The Davis court disagreed with Stryker and adhered to Miller.\nIn Logan v. Old Enterprise Farms, Ltd. (1989), 188 Ill. App. 3d 920, 544 N.E.2d 988, the plaintiff sued a church and the owner of land when the plaintiff was injured at a church picnic. The trial judge granted summary judgment to the owner of land and denied summary judgment to the church. The judge held that the landowner was protected by the Recreational Use Act but that the church was not. The Fourth District Appellate Court held that both should be protected or neither should be protected. It held further that the record established that neither should be protected. 188 Ill. App. 3d at 931.\nThe court discussed Miller and Stryker and declined to follow Stryker:\n\u201cDefendants argue that in Johnson v. Stryker Corp. [citation], the appellate court refused to follow the restrictive holding of Miller v. United States [citation], and instead held that defendants would be allowed the protection of the Act even if the land was used primarily for recreational purposes. While we decline to follow the first district\u2019s ruling in Stryker, we believe that [the church] has misinterpreted the Stryker decision. We find Stryker to mean that the Act will only be applicable to a landowner who permits his land to be used recreationally on a casual basis, but will allow a landowner protection even though he did not open up his lands to all members of the public.\u201d (Emphasis in original.) 188 Ill. App. 3d at 934.\nIn holding that, as a matter of law, neither defendant was entitled to the protection of the Recreational Use Act, the court relied on the testimony that the school house lot was \u201cused primarily, if not exclusively, for recreational activities.\u201d (188 Ill. App. 3d at 933.) The court remanded the case for a hearing to determine whether the Licensing Act was applicable.\nThe supreme court reversed the appellate court on the ground that the plaintiff failed to establish a breach of duty by the defendants. (Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 564 N.E.2d 778.) Because of its reversal on that ground, the supreme court held that the applicability of the Recreational Use Act was moot. 139 Ill. 2d at 241.\nWe do not accept the interpretation of Stryker made by the Seventh Circuit Court of Appeals or by the Fourth District Appellate Court. We do not read Stryker to mean, as apparently the Court of Appeals did in Davis, that a property owner subject to the Licensing Act may also be entitled to the protection of the Recreational Use Act. In Stryker the property owner admittedly was not subject to the Licensing Act. Nor do we agree with the Logan court\u2019s observation that Stryker held that the defendant would be allowed the protection of the Recreational Use Act even if the land was used primarily for recreational purposes. (188 Ill. App. 3d at 934.) The Stryker court had before it a certified question: May a landlord who does not make his land available to the general public for recreational purposes be protected by the Recreational Use Act? The Stryker court simply held that a property owner\u2019s restriction of his property to less than the general public does not ipso facto remove his property from the protection of the Recreational Use Act. We agree with the holding of Stryker.\nThere are other factual situations similar to that in Stryker which illustrate the wisdom of its holding. In addition to farmlands open to hunters for specific periods, as mentioned in Stryker, we can think of property owners who permit cross-country skiing or snowmobiling or hiking or sledding. Surely the law would not remove the immunity of the Recreational Use Act simply because the owner of the property sought to restrict the number of people who could use his land for those purposes. Generosity should not be penalized because some might conclude that the property owner was not generous enough.\nWe do not understand the fourth district\u2019s action in Logan in which it held that the property was not subject to the protection of the Recreational Use Act, but, nonetheless, remanded the cause for a hearing to determine whether the Licensing Act was applicable. The Licensing Act does not create a cause of action; the Licensing Act may be pertinent only in determining whether or not the Recreational Use Act immunity is available. Because the Fourth District Appellate Court ruled that the evidence established, as a matter of law, that the Recreational Use Act was not applicable, in our judgment, the applicability of the Licensing Act was moot.\nWe point out that the accidents involved in Miller, Stryker, Davis and Logan all occurred before the Licensing Act was amended in 1985. Of particular significance is the change in the definition of \u201cRecreational Area.\u201d We make this observation because of the defendant\u2019s argument that it does not meet the definition of \u201cRecreation Area.\u201d It does not meet the definition of \u201cRecreation Area\u201d under the 1971 Act, which the defendant cites to us, but it does meet the definition of \u201cRecreation Area\u201d under the 1985 Act, which was in effect at the time of this occurrence. And the activities of the defendant also meet the definition of \u201cRecreational Activities\u201d under the 1985 Act.\nThe defendant also argues that the Center did not use the property \u201cexclusively for recreational purposes.\u201d We know of no case that has required exclusive recreational use before a property owner may be barred from the immunity of the Recreational Use Act.\nIt is appropriate to identify the issue as it has been presented to us. This case was decided on summary judgment. We have not been asked to determine, and we do not determine, whether the immunity available under the Recreational Use Act presents a question of law or fact. And if it presents a question of fact, we make no attempt to set forth the appropriate standard or jury instruction. We point out that the district court in Miller made a factual determination and in doing so said that the Recreational Use Act was not \u201cintended for those who permit open lands to be used recreationally on a casual basis.\u201d (Miller, 442 F. Supp. at 561.) The plaintiff contends that the evidence established that the recreational use of the land was more than \u201ccasual\u201d; the defendant maintains that it was not. For the purposes of this opinion, therefore, we will accept the issue as it has been couched by the parties: whether the Center has established, as a matter of law, that its use of the land for recreational purposes was only \u201ccasual.\u201d We conclude that the defendant has not established such a use. Indeed, we judge that the evidence establishes the opposite conclusion: As a matter of law the defendant\u2019s use for recreational purposes was more than \u201ccasual.\u201d Seventy-five percent of the defendant\u2019s income was earned. There were approximately 20 permanent structures in use on the premises; approximately 12 horses were kept for use for summer camps on the premises; in the summer of 1986, there was a preenrollment charge made for individuals participating in the summer camps during which the horses were used; there was a gate which closed the premises off from the general public; there was a sign on the premises indicating that it was open by reservation only; and the summer camps would operate on Sundays. These facts establish a more than \u201ccasual\u201d recreational use of the property. For that reason we hold that the defendant may not invoke the immunity of the Recreational Use Act.\nThe plaintiff also argues that the Recreational Use Act is not applicable here for the additional reason that the Center charged a fee to its users. As noted, section 6(b) of the Act provides that the Act does not apply \u201c[f]or injury suffered in any case where the owner of land charges the person or persons who go on the land for the recreational use thereof.\u201d (Ill. Rev. Stat. 1985, ch. 70, par. 36(b).) The defendant maintains that the exception is not applicable because the plaintiff himself was not charged a fee. There is precedent for the defendant\u2019s position. In Garfield v. United States (W.D. Wis. 1969), 297 F. Supp. 891, two husbands and their wives entered a military reservation; the husbands paid 50 cents each for a small game hunting permit. Their wives paid no fee. The district court held that the husbands, who had paid a fee, were covered by the Wisconsin statute similar to the Illinois Recreational Use Act but that their wives, who had not paid a fee, were not. Garfield was followed in Stephens v. United States (C.D. Ill. 1979), 472 F. Supp. 998.\nWe do not agree with the holdings of Garfield or Stephens. To illustrate, those operating a recreational area, who charge a general admittance fee, could grant free admission to senior citizens or small children. Under Garfield and Stephens a property owner would not be immune from claims for general negligence brought by anyone who paid a fee, but would be immune for claims brought by injured senior citizens or injured children who did not pay a fee. Although the Stephens court followed Garfield it did make this observation:\n\u201cThere does not appear to be any specific legislative purpose or public policy in distinguishing between paying and non-paying recreational users of a single land or water area. There does appear to be a clear purpose to distinguish between land and water areas which \u2018charge\u2019 and those which do not.\u201d (Stephens, 472 F. Supp. at 1011.)\nWe do not believe there is any legislative purpose or public policy to be served by making a distinction between paying and nonpaying users of the defendant\u2019s property. For this additional reason, we judge that the defendant may not invoke the protection of the Recreational Use Act.\nAlthough the plaintiff has not specifically argued that the Recreational Use Act is not applicable to the facts of this case, we wish to express our own reservations of the Act\u2019s applicability here. The allegations of duty, breach and proximate cause all concern a defective \u201ccinch strap.\u201d The statute, on the other hand, deals with premises liability. The statute provides:\n\u201c[A]n owner of land owes no duty of care to keep the premises safe for entry or use by any person for recreational purposes, or give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.\u201d (Ill. Rev. Stat. 1985, ch. 70, par. 33.)\nWhile horseback riding is an activity, the defendant\u2019s negligence is based upon its failure, after notice, to replace or repair the defective \u201ccinch strap.\u201d\nFor all these reasons, the judgment of the circuit court is reversed and the cause remanded for further proceedings consistent with this opinion.\nJudgment reversed and remanded.\nMcNAMARA and RAKOWSKI, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE EGAN" } ], "attorneys": [ "Rick A. Gleason, of Gleason & Fritzshall, of Chicago, for appellant.", "Robert A. Roth, of Keck, Mahin & Cate, of Chicago, for appellee." ], "corrections": "", "head_matter": "CHARLES PHILLIPS, Plaintiff-Appellant, v. COMMUNITY CENTER FOUNDATION AND THE CHILDREN\u2019S FARM, Defendant-Appellee.\nFirst District (6th Division)\nNo. 1\u201491\u20140871\nOpinion filed November 13, 1992.\nRehearing denied December 17,1992.\nRick A. Gleason, of Gleason & Fritzshall, of Chicago, for appellant.\nRobert A. Roth, of Keck, Mahin & Cate, of Chicago, for appellee." }, "file_name": "0505-01", "first_page_order": 523, "last_page_order": 536 }