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No Immunity for Negligence

Clifford's Notes, Chicago Lawyer September 11, 2013

By Robert A. Clifford

Sylvia Lee Moore was exiting a Chicago Park District facility after her senior water aerobics class on Jan. 23, 2006.

Three days earlier, 2 inches of snow fell and the district workers plowed the parking lot several times, including shoveling the sidewalks by pushing the snow to the curb.

As Moore headed to her car in the lot, she found it was blocked by three other cars. She stepped in between two cars and came to a snow pile. The pile was where the parking lot met the sidewalk. She slipped and fell on the snow pile and broke her leg.

After undergoing surgery, she suffered complications which led to brain damage and her death. Moore’s family sued the district for negligently creating an unsafe condition in the parking lot and walkway through the unnatural accumulation of snow and ice.

The defendant moved for summary judgment, arguing it was immune from claims under Section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act, 745 ILCS 10/3-106 (2008)).

The trial court denied the defendant’s motion, citing Stein v. Chicago Park District, 323 Ill.App.3d 574, 752 N.E.2d 631 (1st Dist. 2001) and found that Section 3-106 did not apply because snow is “not affixed to the property in a way that it would become property itself.” The appellate court affirmed the trial court’s ruling.

But the Illinois Supreme Court reversed the decision and overruled Stein despite a provision in Section 3-105 that requires governments to exercise due care with snow-removal operations. Moore v. Chicago Park District, 978 N.E.2d 1050 (1st Dist.2012).

Section 3-105 states that local public entities have no duty to remove natural accumulations of snow and ice from public property, but “if a local public entity undertakes snow-removal operations, it must exercise due care in doing so.”

Surprisingly, a majority of the court found that “an accumulation of snow and ice constitutes the ‘existence of a condition of any public property,’ as this expression is used in Section 3-106 of the Tort Immunity Act.”

The high court reasoned that snow and ice are “passive characteristics” of the property and there was no requirement that the condition be affixed to the recreational property for immunity to apply.

The majority further explained that the injury was caused by the snowy and icy conditions of the parking lot, not by the actions of the park district employees who negligently used snow removal equipment in the way they cleared the lot.

The dissent, written by Chief Justice Thomas Kilbride and joined by Justice Charles Freeman, stated that “the majority’s decision expands immunity beyond what the legislature intended in enacting Section 3-106.” Kilbride pointed out that in a case of statutory construction, as this case was framed, the “primary objective” is to “ascertain and give effect to the intent of the legislature.” Because the Tort Immunity Act was enacted in derogation of the common law, it must be strictly construed against the governmental entity claiming immunity. And Kilbride pointed out that “the decedent fell when she attempted to step over the piles of snow and ice created by the snow removal activity.”

I agree. It was not the mere existence of the snow and ice that caused the plaintiff’s injuries; it was the way in which the park district employees negligently piled up the snow and ice into mounds that the plaintiff was unable to safely navigate. As Justice Kilbride wrote, “the injury here was not caused by the property itself, but by the allegedly negligent snow removal activity.”

The majority said it wants to encourage the development and maintenance of public parks, playgrounds, open areas, buildings and other recreational facilities. But how does their opinion serve that purpose?

A number of cases are cited throughout the opinion, but the majority opinion went into a detailed discussion of McCuen v. Peoria Park District, 163 Ill.2d 125, 643 N.E.2d 778 (1994). There, people were injured when they were thrown from a hayrack wagon owned by the park district when one of its employees “spooked” a mule team, which caused the animals to bolt. The court held that the hayrack wagon amounted to personal property of the park district and was not “a condition of the property” as set forth in Section 3-106.

In Moore, the majority found that “snow and ice, regardless of their natural or unnatural accumulation, are a ‘condition’ of the public property.”

Citing the reasoning in McCuen, the court held that it was a condition of the property that was unsafe. “Here, there was no misuse of property that contributed to plaintiff’s decedent’s injury rather, the condition of the property was simply changed due to the new condition of the snow and ice located thereon, such that Section 3-106 immunity applies.”

Although the holding of the majority in Moore is limited to governmental entities, it is a dangerous precedent to immunize public entities from liability for injuries when apparent negligent conduct is involved. Hopefully, the decision will be limited to the clearing of ice and snow.

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