Julie Abrams was injured at the Oak Lawn-Homewood Middle School on April 19, 2012 during a ceremony inducting her as a member of the National Junior Honor Society. Julie fell at the program because of an allegedly “dark, non-illuminated, elevated, unmarked, uneven surface.” Julie required shoulder surgery as a result and expended $35,800 in medical bills for that injury.
In a lawsuit brought by Julie’s family against Oak Lawn-Homewood Middle School, it was contended that the cafeteria/auditorium — known as the Cafetorium — was “public property intended or permitted to be used for recreational purposes” under Section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act. The school asked that the Cook County Circuit Court judge dismiss Julie’s negligence case because of tort immunity. The trial judge denied the school district’s motion, but certified the question for immediate appeal.
This was the question presented to the Illinois Appellate Court for answering: “Where an injury occurs on an area of public property which has both recreational and non-recreational purposes, should Section 3-106 immunity apply when said area is located within a public school where the primary character of the area and overall facility is educational and non-recreational?”
There was no indication in the record that the school ever intended or permitted the Cafetorium to be used for recreational purposes. The Illinois Appellate Court concluded that the “Cafetorium is not property that comes within the scope of Section 3-106.”
Local public entities are held to the same standard as private tortfeasors and under the common law have a duty to exercise ordinary care to maintain their property in a reasonably safe condition. Bubb v. Springfield School District, 167 Ill.2d 372 (1995).
The Tort Immunity Act codified the common-law duty in Section 3-102, but did create immunities and defenses that, if properly raised and proved, will bar a plaintiff’s right to recover from a public entity. The legislature created these immunities and defenses to encourage public entities to develop and maintain recreational areas without fear of exposing taxpayer funds to damage awards. Belton v. Forest Preserve District, 407 Ill. App. 3d 409 (2011).
Originally, Section 3-106’s immunity was limited to parks, playgrounds and open areas used for recreational purposes. Later, the legislature broadened the scope of immunity wherein the statute reads:
“Neither 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.” 745 ILCS 10/3-106.
In this case, the school had never intended or permitted the Cafetorium to be used for recreational purposes. The appeals panel rejected the school district’s contention that the school band, chorus and drama programs make recreational use of the Cafetorium, particularly when they give performances. The court disagreed, finding that the students’ musical and dramatic practices and performances are part of the educational process and are not recreational uses.
The court concluded that the record does not indicate that the Cafetorium had been used for recreation in the past or that the school had encouraged recreational use in that facility. Therefore, the Cafetorium is not property that comes within the scope of Section 3-106 and thus, tort immunity did not apply to Julie’s case.
Abrams v. Oak Lawn–Homewood Middle School, 2014 IL App (1st) 132987 (March 21, 2014).
Kreisman Law Offices has been handling injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Clarendon Hills, Oakbrook, Villa Park, Westchester, Hillside, Bellwood, Maywood, Melrose Park, Elmwood Park, River Grove, Forest Park, Oak Park, Harwood Heights, Park Ridge and Uptown (Chicago), Ill.
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