Donath v. Vill. of Plainfield

2020 IL App (3d) 190762

175 N.E.3d 175

447 Ill.Dec. 807

Stacy DONATH, Plaintiff-Appellant,

v.The VILLAGE OF PLAINFIELD, Defendant-Appellee.

Appeal No. 3-19-0762

Appellate Court of Illinois, Third District.

Opinion filed October 6, 2020

Steven A. Berman, of Anesi, Ozmon, Rodin, Novak & Kohen, Ltd., of Chicago, for appellant.

Megan M. Olson and James B. Harvey, of Tracy, Johnson & Wilson, of Joliet, for appellee.

JUSTICE O'BRIEN delivered the judgment of the court, with opinion.

¶ 1 The plaintiff, Stacy Donath, appeals from an order granting summary judgment in favor of the defendant, Village of Plainfield (Village), in an action to recover damages for injuries sustained when Donath tripped and fell on a public street while leaving a street festival.

¶ 2 I. BACKGROUND

¶ 3 On July 3, 2017, Donath filed a complaint in negligence against the Village, alleging that the Village was liable for injuries sustained when Donath tripped and fell on a public street. Donath alleged the Village "had a duty to exercise ordinary care to operate, manage, maintain and/or control * * * a certain street and sewer grate located" on Fox River Street. Donath alleged that the Village "carelessly and negligently caused and/or permitted [Fox River Street] to become and remain in a dangerous condition." Specifically, Donath alleged that she tripped and fell on July 16, 2016, because Fox River Street was "broken, cracked and in disrepair": Fox River Street's sewer grate was "in disrepair, sunken and unsafe"; and the Village failed to repair, barricade, or inspect and warn Donath of the dangerous conditions on Fox River Street.

¶ 4 The Village filed an answer to Donath's complaint without raising any affirmative defenses. Discovery later revealed that Donath tripped and fell on Fox River Street while leaving an evening concert at Plainfield Fest, which is a weekend street festival held in the downtown area of the Village. Plainfield Fest includes a bandstand, beer tents, carnival rides, and food and craft vendors on closed public streets and certain private property. As the Village's largest annual community event with a 20-plus year history, Plainfield Fest attracts thousands of daily attendees and 10.000 to 15,000 total attendees Friday through Sunday.

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Map of the 2016 Plainfield Fest from the Trial Court Record

The partial closure of Fox River Street during Plainfield Fest was announced by the Village through a press release. Tire Village partially closed Fox River Street with barricades and a police checkpoint. The Village prohibited vehicular traffic on Fox River Street by everyone except its residents, who obtained and displayed a pass from the Village to access the officer checkpoint, and business and street festival personnel.

¶ 5 By limiting vehicular traffic on Fox River Street, as depicted in the map above, the Village allowed pedestrians to use Fox River Street as a walkway between Plainfield Fest's carnival area 1 and the vendor area. This walkway also created a direct route for pedestrians to walk to and from Plainfield Fest, generally, and the designated parking area at Plainfield Central High School. Fox River Street was not, however, the location of any Plainfield Fest activities. When plaintiff tripped and fell, she was walking on Fox River Street to her vehicle near Plainfield Fest's designated parking area.

¶ 6 Discovery also confirmed Fox River Street is closed during an annual five-kilometer run. The five-kilometer run does not traverse Fox River Street, but like Plainfield Fest, portions of Fox River Street are closed for use by the five-kilometer run's personnel, police and fire department personnel, emergency management services, and vendors to make deliveries.

¶ 7 On September 27, 2019, the Village filed a motion for summary judgment under section 2-1005 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-1005 (West 2018) ). The Village argued "there is no issue of material fact concerning the recreational nature of the streets being used to accommodate the easy and safe movement of large crowds at" Plainfield Fest. According to the Village, if the public property was intended or permitted to be used for recreation, then, regardless of the primary purpose of the public property, section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) ( 745 ILCS 10/3-106 (West 2016) ) afforded immunity to the local public entity, unless the injuries were proximately caused by willful and wanton conduct.

¶ 8 In her response in opposition to summary judgment, Donath argued that her injuries were not sustained on recreational property. In her view, "Fox River Street was a partially closed residential street that pedestrians could use to access the festival, but was not itself ‘recreational property’ " (emphases in original) under section 3-106 of the Tort Immunity Act. Donath contended that she tripped and fell outside the perimeter of where any recreational activities may have been permitted a few days a year. Donath maintained "the street was closed merely to allow pedestrians to safely walk without the intrusion of motor vehicles in the road." At a minimum, Donath argued an issue of material fact existed as to whether a public street can be recreational property under section 3-106 of the Tort Immunity Act.

¶ 9 On November 8, 2019, the Village filed a reply to plaintiff's response in opposition to summary judgment. According to the Village, section 3-106 of the Tort Immunity Act focuses upon "whether the public property was intended or permitted to be used for recreational purposes." In the Village's view, under the existing case law, section 3-106 of the Tort Immunity Act applies to Fox River Street because "walkways increase the usefulness of the property being used for the actual recreation." Since street festival attendees could park at the designated parking area at Plainfield Central High School and then walk on the closed public streets, including Fox River Street, to Plainfield Fest, the Village argued section 3-106 of the Tort Immunity Act applied to incidents involving pedestrians walking on those public streets.

¶ 10 After a hearing on the motion, the circuit court granted summary judgment in favor of the Village, and Donath appealed.

¶ 11 II. ANALYSIS

¶ 12 Donath contends that the circuit court erred in applying the recreational property immunity exception and granting summary judgment to the Village. Donath argues that the portion of Fox River Street where she fell was not recreational property pursuant to section 3-106 of the Tort Immunity Act. Donath further argues that the residential street where she fell was outside of any arguably recreational activity connected to the annual Plainfield Fest and it was not exclusively or primarily intended to increase the usefulness of recreational property. The Village contends that the circuit court properly granted summary judgment because there was no genuine issue of material fact precluding a finding that the recreational property exception applied. The Village argued that Fox River Street was, and is, utilized for recreational purposes all year round as a direct access point to Village Green Park, as well as during Plainfield Fest and other special events. Thus, the Village argues, since Donath presented no evidence of willful and wanton conduct by the Village, summary judgment was appropriate.

¶ 13 Summary judgment is appropriate only "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2018); In re Estate of Hoover, 155 Ill. 2d 402, 410-11, 185 Ill.Dec. 866, 615 N.E.2d 736 (1993). The case must hinge on a question of law, and the moving party's right to summary judgment must be "clear and free from doubt." Hoover, 155 Ill. 2d at 410, 185 Ill.Dec. 866, 615 N.E.2d 736. In this case, the relevant facts surrounding Donath's trip and fall incident are uncontested. On appeal, the parties only dispute the applicability of section 3-106 of the Tort Immunity Act.

¶ 14 The purpose of the Tort Immunity Act "is to protect local public entities and public employees from liability arising from the operation of government." 745 ILCS 10/1-101.1 (West 2016) ; accord Harris v. Thompson, 2012 IL 112525, ¶ 17, 364 Ill.Dec. 436, 976 N.E.2d 999. Importantly, our legislature "sought to prevent public funds from being diverted from their intended purpose to the payment of damage claims." Harris, 2012 IL 112525, ¶ 17, 364 Ill.Dec. 436, 976 N.E.2d 999. Thus, the Tort Immunity Act "grants only immunities and defenses." 745 ILCS 10/1-101.1 (West 2016) ; accord Harris , 2012 IL 112525, ¶ 17, 364 Ill.Dec. 436, 976 N.E.2d 999 ; Bubb v. Springfield School District 186, 167 Ill. 2d 372, 378, 212 Ill.Dec. 542, 657 N.E.2d 887 (1995).

¶ 15 Coupled with the overall purpose of the Tort Immunity Act, section 3-106 affords immunity to local public entities "to encourage and promote the development and maintenance of parks, playgrounds, and other recreational areas." Moore v. Chicago Park District, 2012 IL 112788, ¶¶ 9, 22, 365 Ill.Dec. 547, 978 N.E.2d 1050. Clearly, our legislature recognized, without affording immunity to local public entities, "public property intended or permitted to be used for recreational purposes" could suffer or become less available to the public. 745 ILCS 10/3-106 (West 2016).

¶ 16 Notably, the Tort Immunity Act does not create duties but, instead, "codifies existing common law duties[ ] to which the delineated immunities apply." Harris, 2012 IL 112525, ¶ 17, 364 Ill.Dec. 436, 976 N.E.2d 999 ; see also Bubb, 167 Ill. 2d at 377-78, 212 Ill.Dec. 542, 657 N.E.2d 887. If a court finds a duty exists, then it will address the separate issue of whether the Tort Immunity Act applies. Harris, 2012 IL 112525, ¶ 17, 364 Ill.Dec. 436, 976 N.E.2d 999.

¶ 17 A...