By Colin H. Dunn
Local public entities, just like the rest of us, have a duty to exercise ordinary care to maintain their property in a reasonably safe condition.
Set by Bubb v. Springfield School District 186, 167 Ill.2d 372, 377 (1995), that duty is codified in section 3–102 of the Tort Immunity Act.
But recreational public property is different; the legislature created an immunity to encourage public entities to develop and maintain these areas without fear of exposing taxpayers to damage awards. Belton v. Forest Preserve District, 407 Ill.App.3d 409, 424 (2011); 745 ILCS 10/3–106.
Initially, Section 306 immunity was limited to parks, playgrounds and open areas used for recreation, but even with that and other immunities in effect in the mid-1980s, public entities were being turned down by liability insurers or were being offered unaffordable coverage. Sylvester v. Chicago Park District, 179 Ill.2d 500, 509 (1997).
To reduce the cost of liability insurance, the legislature broadened the scope of immunity to “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.
So it matters how the property is characterized: If the property is “intended or permitted to be used for recreational purposes,” a plaintiff must show the injury was caused by willful and wanton conduct to defeat Section 3-106 immunity.
Recently, the 1st District Appellate Court considered whether a school’s combined cafeteria-auditorium qualified as recreational property. Abrams v. Oak Lawn-Hometown Middle School, 2014 IL App (1st) 132987.
Plaintiff Julie Abrams, a student at the Oak Lawn-Hometown Middle School, fell and was injured as students and their family members were filing into the school’s “cafetorium” for an awards ceremony. The plaintiff alleged she fell because of “a dark, non-illuminated, elevated, unmarked, uneven surface.”
The cafetorium is a large multipurpose room that is equivalent in size to about five classrooms. Its open main floor is a series of four elevated tiers that face a stage approximately 3 feet tall. The room also holds sound equipment and a control room for the sound and lights. When the room was being used as an auditorium for the awards event, approximately 400 chairs had been arranged on the tiered floor to face the stage.
When the cafetorium is used as the cafeteria, it is set up with foldable tables that have attached stools and wheels so the tables can be rolled aside when not needed. The room is used daily as the school cafeteria and used regularly for events such as student assemblies, school club meetings, ceremonies and parties for school sports teams and induction ceremonies for school groups. It is also regularly used for practices and performances of the school band, the chorus and drama programs.
The cafetorium’s tiered floor makes the room unsuitable for athletics, and no sporting events have ever been held in the room.
Taxpayers who live in the school district are allowed to use the cafetorium for their own functions, but this type of use happens less than one or two times per school year.
The Cook County Circuit Court certified the following question for appeal: “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?”
The 1st District answered no.
The court began its analysis by noting that, rather than exempting specific types of public property, Section 3–106 now provides exemption based on the public entity’s intended or permitted use for the property.
And just because the public property at issue is not open for use by the general public does not mean it can’t qualify as recreational. Instead, it’s the “character and nature of the property as a whole [that] determines the application of Section 3–106 immunity, not the [injured party’s] use of the property or her activity at the time of her injury.” Adamczyk v. Township High School District 214, 324 Ill.App.3d 920, 924 (2001).
Because Section 3-106 was intended to encourage the development and maintenance of recreational property such as parks and playgrounds, it has been found not to bar a claim by a roller skater (who was obviously engaging in a recreational activity) injured due to a negligently maintained sidewalk. Larson, 142 Ill.App.3d at 86–87.
In determining whether public property is recreational, courts consider “whether the property has been used for recreation in the past or whether recreation has been encouraged there.” Bubb, 167 Ill.2d at 382.
Moreover, the term “permitted” in the statute does not sweep in all public property where recreation might occur or where it is not expressly prohibited; otherwise, Section 3–106 immunity would swallow up any liability the public entity has for its property. Bubb, 167 Ill.2d at 381.
Applying those principles, the court found that the cafetorium did not qualify as recreational property. Section 3-106 does not mention public schools, their cafeterias or their auditoriums. And while the cafetorium possibly could be one of the “buildings, or other enclosed recreational facilities” listed in Section 3-106, there was no indication in the record that the school had ever intended or permitted the cafetorium to be used for recreational purposes.
Instead, the court found that the activities in the cafetorium were educational or incidental to educational uses, which are non-recreational uses, with the exception of perhaps the parties and ceremonies for the school sports teams and the occasional meetings convened by local taxpayers. The educational or incidental uses include the room’s daily use as the school’s lunchroom and such events as assemblies, club meetings and ceremonies.
The court also rejected the school district’s contention that the school band, chorus and drama programs qualify as recreational use of the cafetorium, particularly when giving performances. The court found that the students’ musical and dramatic practices and performances are part of the educational process, not recreational uses.
“Chorus performances, band performances, and school plays,” the court explained, “occur primarily to instruct the students rather than provide recreation to them, their friends and families or the community. See Ozuk v. River Grove Board of Education, 281 Ill.App.3d 239, 243 (1996) (indicating that for the purposes of Section 3–106, recreation is to amuse, divert or provide enjoyment instead of instruction); Wallace v. Metropolitan Pier and Exposition Authority, 302 Ill.App.3d 573, 577 (1998) (indicating that for the purpose of Section 3–106, recreation includes sports, physical activities and passive activities that are for relaxation and pleasure). The school has a separate gymnasium for recreational activities.”
Because the record did not indicate the cafetorium has been used for recreation in the past or that the school has encouraged recreational use there, the court found it did not fall within the scope of Section 3–106. To hold otherwise “would be an unreasonable extension of a law whose purpose is to encourage the development and maintenance of parks and similar recreational areas.”