                                     2017 IL 121800



                                        IN THE
                               SUPREME COURT
                                           OF
                         THE STATE OF ILLINOIS



                                   (Docket No. 121800)

      ISAAC COHEN, Appellee, v. THE CHICAGO PARK DISTRICT, Appellant.


          Opinion filed December 29, 2017.—Rehearing denied March 26, 2018.



        JUSTICE BURKE delivered the judgment of the court, with opinion.

        Chief Justice Karmeier and Justices Freeman, Thomas, Garman, and Theis
     concurred in the judgment and opinion.

        Justice Kilbride dissented, with opinion.

        Justice Kilbride also dissented upon denial of rehearing, with opinion.



                                        OPINION

¶1       The plaintiff, Isaac Cohen, was riding his bicycle on the Lakefront Trail, a
     shared-use path that runs along the shore of Lake Michigan in Chicago, when his
     front wheel got caught in a crack in the pavement and he fell. Plaintiff filed a
     one-count complaint against the defendant, the Chicago park district, alleging it
     had acted willfully and wantonly in failing to maintain the path and was therefore
     responsible for the injuries that resulted from his fall.

¶2       The circuit court of Cook County granted defendant’s motion for summary
     judgment, concluding that defendant was immune from suit under section 3-107(a)
     of the Local Governmental and Governmental Employees Tort Immunity Act (Act)
     (745 ILCS 10/3-107(a) (West 2012)). That provision grants absolute immunity to
     local public entities for injuries caused by a condition of a “road which provides
     access to fishing, hunting, or primitive camping, recreational, or scenic areas.” Id.
     The circuit court also concluded, in the alternative, that even if section 3-107(a) did
     not apply to the Lakefront Trail, defendant was immune from suit under section
     3-106 of the Act (745 ILCS 10/3-106 (West 2012)). That provision immunizes
     local public entities for injuries occurring on recreational property, except when the
     local public entity engages in willful and wanton conduct proximately causing the
     injuries.

¶3       On appeal, the appellate court rejected both the conclusions reached by the
     circuit court and reversed the entry of summary judgment in favor of defendant.
     2016 IL App (1st) 152889. We granted defendant’s petition for leave to appeal. Ill.
     S. Ct. R. 315 (eff. Mar. 15, 2016).

¶4       Like the appellate court, we agree that section 3-107(a) of the Act is
     inapplicable in this case, although we reach this result for different reasons.
     However, we agree with the circuit court that defendant is immune from suit under
     section 3-106. Accordingly, we reverse the judgment of the appellate court and
     affirm the judgment of the circuit court.


¶5                                        Background

¶6       The following facts are taken from the pleadings, depositions, and other
     materials before the circuit court. On the morning of July 7, 2013, plaintiff was
     riding his bicycle in the right lane of the Lakefront Trail in Chicago, Illinois,
     heading south near the Shedd Aquarium. As he rode, he approached from behind a
     pedestrian who was walking in the same lane. Plaintiff slowed down, rang his
     bicycle bell, and began to pass on the pedestrian’s left.




                                              -2-
¶7         To pass the pedestrian, plaintiff moved his bicycle to the middle of the path. As
       he did so, the front tire of his bicycle became caught in a crack in the concrete. The
       crack was about three to four inches wide at its widest, was two to three inches
       deep, and ran in the direction of travel along the path for about three or four feet.
       After his wheel became caught, plaintiff fell to the ground and sustained injuries to
       his shoulder. He then got back on his bicycle and rode home.

¶8         Plaintiff did not notify defendant of his accident at the time it happened. The
       following week, plaintiff rode his bicycle along the same stretch of the path and
       noticed that the crack had been repaired.

¶9         The Lakefront Trail is what is known as a shared-use path (see Corbett v.
       County of Lake, 2017 IL 121536, ¶ 21), used by bicyclists, pedestrians, joggers and
       others. The path is either concrete or asphalt and runs for approximately 18.5l miles
       along the shore of Lake Michigan in Chicago. The path is in a developed area and is
       surrounded by numerous commercial and public attractions such as beaches,
       softball fields, museums, and harbors. Although emergency vehicles such as
       ambulances may use the path when necessary, public, motorized traffic is not
       permitted on the path.

¶ 10       Defendant owns and maintains the Lakefront Trail. Every spring the path is
       inspected in order to identify any defects in need of repair. After the annual
       inspection is completed, a list of repairs is compiled, and requests for bids to
       perform the repair work are sent to contractors under a “rapid response”
       procurement program. This program is an expedited procurement process for
       defendant, through which most repairs for the Lakefront Trail are conducted.

¶ 11       As early as May 2013, an employee of defendant, Robert Arlow, received a call
       from a user of the Lakefront Trail informing him about the crack at issue in this
       case. Arlow inspected the crack and concluded it needed to be repaired. However,
       Arlow did not take steps to immediately perform the repair through the use of
       in-house employees. He also did not barricade the path or otherwise mark the crack
       in the pavement with spray paint or similar material.

¶ 12       On June 10, 2013, defendant sent out its annual request for repair bids under the
       rapid response program. The crack was included in the scope of work for which
       bids were sought. On June 12, 2013, a repair contractor submitted a proposal to




                                               -3-
       defendant for repairs to the path. On June 19, 2013, defendant told the contractor to
       proceed with the work. On July 10, 2013, the crack in the pavement was repaired.

¶ 13       Defendant moved for summary judgment alleging, in part, that it was afforded
       immunity from plaintiff’s suit under sections 3-107(a) and 3-106 of the Act. The
       circuit court agreed and granted defendant’s motion.

¶ 14       Plaintiff appealed, and the appellate court reversed. 2016 IL App (1st) 152889.
       The appellate court held that section 3-107(a) “was intended only to apply to roads
       providing access to primitive, undeveloped recreational areas” (id. ¶ 40) and, thus,
       did not apply to the Lakefront Trail. The court also held that summary judgment for
       defendant was inappropriate under section 3-106 because it could not be said that
       defendant’s conduct was not willful and wanton as a matter of law.

¶ 15      We granted defendant’s petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff.
       Mar. 15, 2016). We also allowed the Illinois Trial Lawyers Association to file an
       amicus curiae brief in support of plaintiff. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).


¶ 16                                         Analysis

¶ 17       At issue in this appeal is the circuit court’s order granting summary judgment in
       favor of defendant. Summary judgment is proper when the pleadings, depositions,
       affidavits, and other matters on file establish that there is no genuine issue of
       material fact and that the moving party is entitled to judgment as a matter of law.
       735 ILCS 5/2-1005(c) (West 2012). We review the circuit court’s grant of
       summary judgment de novo. Bremer v. City of Rockford, 2016 IL 119889, ¶ 20. We
       also review issues of statutory interpretation, which are questions of law, de novo.
       Moon v. Rhode, 2016 IL 119572, ¶ 22.


¶ 18                                     Section 3-107(a)

¶ 19       The appellate court rejected the circuit court’s conclusion that defendant is
       entitled to blanket immunity under section 3-107(a) of the Act. That provision
       states:




                                               -4-
           “Neither a local public entity nor a public employee is liable for an injury
           caused by a condition of: (a) Any road which provides access to fishing,
           hunting, or primitive camping, recreational, or scenic areas and which is not a
           (1) city, town or village street, (2) county, state or federal highway or (3) a
           township or other road district highway.” 745 ILCS 10/3-107(a) (West 2012)).

¶ 20       Much of the appellate court’s analysis centered on the word “primitive” and
       whether that word modified each of the words that follow it. Ultimately, the
       appellate court concluded that it did and held that section 3-107(a) “applies only to
       access roads to primitive recreational and scenic areas and does not apply to the
       Lakefront Trail.” 2016 IL App (1st) 152889, ¶ 43. In other words, the appellate
       court held that, even if the Lakefront Trail is considered an access road, it does not
       provide access to a “primitive” recreational or scenic area and, therefore, the
       blanket immunity of section 3-107(a) does not apply. Although we agree with the
       appellate court that section 3-107(a) is inapplicable in this case, we believe the
       court’s focus on which words are modified by the term “primitive” was
       unnecessary.

¶ 21        Section 3-107(a) provides blanket immunity for certain roads. The statute does
       not, itself, define the word “road.” However, other statutory provisions do. The
       Illinois Highway Code (605 ILCS 5/2-101 et seq. (West 2012)), for example, sets
       out a comprehensive list of definitions for terms such as “road,” “street,” and
       “highway.” Under the Highway Code, roads and streets are types of
       highways—highway being the generic term for “any public way for vehicular
       travel which has been laid out in pursuance of any law of this State.” 605 ILCS
       5/2-202 (West 2012); see also 625 ILCS 5/1-126, 1-179, 1-201 (West 2012)
       (setting out similar definitions under the Illinois Vehicle Code). Vehicles, in turn,
       include motorized vehicles such as motorcycles, cars, and trucks. 625 ILCS
       5/1-217 (West 2012). 1 Thus, generally speaking, under the Highway Code, a
       “road” is a public way that permits travel by devices such as motorcycles, cars, and
       trucks.



           1
            Under Illinois law, a bicycle is not considered a vehicle (625 ILCS 5/1-217 (West 2012)), but
       bicycle riders are given all the rights and are subject to all the duties applicable to the driver of a
       vehicle (625 ILCS 5/11-1502 (West 2012)).




                                                       -5-
¶ 22       Care must be taken when importing the definition of a term from one statute to
       another, since “the context in which a term is used obviously bears upon its
       intended meaning.” People ex rel. Illinois Department of Labor v. E.R.H.
       Enterprises, Inc., 2013 IL 115106, ¶ 29. However, in this case, we believe it
       appropriate to do so. Section 3-107(a), which was enacted several years after the
       Highway Code, uses the same terminology found in the latter statute. Section
       3-107(a) states, for example, that the blanket tort immunity for access roads does
       not apply to “a township or other road district highway.” This terminology mirrors
       the language found in the definitional provisions of the Highway Code (see 605
       ILCS 5/2-205, 2-206 (West 2012)) and suggests that the legislature intended for the
       Highway Code definitions to apply. Moreover, we can discern no reason, either
       from the context of the statutes or other sources, why the definition of the term
       “road” found in the Highway Code should not also apply in section 3-107(a). Thus,
       we conclude that a “road” under section 3-107(a) is a public way that permits travel
       by motorized vehicles such as motorcycles, cars, and trucks.

¶ 23      In this case, there is no dispute that the Lakefront Trail is not open to public,
       motorized traffic. Accordingly, the Lakefront Trail is not a “road” within the
       meaning of section 3-107(a). For this reason, defendant is not afforded blanket
       immunity for conditions of the Lakefront Trail under section 3-107(a).


¶ 24                                      Section 3-106

¶ 25       Defendant contends, in the alternative, that if it is not immune from plaintiff’s
       suit under section 3-107(a) of the Act, it is immune under section 3-106. Section
       3-106 provides:

          “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 (West 2012).




                                               -6-
¶ 26       There is no dispute that the Lakefront Trail is recreational property within the
       meaning of section 3-106. Defendant maintains, however, that its conduct in
       repairing the crack cannot, as a matter of law, be deemed willful and wanton.
       Therefore, defendant contends, it is entitled to summary judgment on this ground.

¶ 27       Section 1-210 of the Act defines willful and wanton conduct as “a course of
       action which shows an actual or deliberate intention to cause harm or which, if not
       intentional, shows an utter indifference to or conscious disregard for the safety of
       others or their property.” 745 ILCS 10/1-210 (West 2010). Generally, whether a
       defendant’s conduct is willful and wanton is a question for the jury. Murray v.
       Chicago Youth Center, 224 Ill. 2d 213, 245 (2007). However, where, as here,
       discovery has been completed and “what is contained in the pleadings and
       affidavits would have constituted all of the evidence before the court and upon such
       evidence there would be nothing left to go to a jury, and the court would be required
       to direct a verdict, then a summary judgment should be entered.” Fooden v. Board
       of Governors of State Colleges & Universities, 48 Ill. 2d 580, 587 (1971).

¶ 28       The parties point to two cases, Lester v. Chicago Park District, 159 Ill. App. 3d
       1054 (1987), and Palmer v. Chicago Park District, 277 Ill. App. 3d 282 (1995), to
       illustrate the nature of willful and wanton conduct in the context of park district
       action. In Lester, the plaintiff alleged that he was injured when the Chicago park
       district “ ‘insufficiently and without proper materials’ ” filled in ruts and holes in a
       softball field. Lester, 159 Ill. App. 3d at 1056. The appellate court affirmed the
       dismissal of the plaintiff’s complaint, concluding as a matter of law that nothing in
       the plaintiff’s allegations could amount to “ ‘utter indifference’ or ‘conscious
       disregard’ ” for the safety of park patrons. Id. at 1059. The court held that to equate
       the defendant’s “actions in discovering the condition complained of and taking
       affirmative rehabilitative acts after such discovery in an attempt to remedy the
       problem with willful and wanton conduct would render that standard synonymous
       with ordinary negligence.” Id.

¶ 29       In Palmer, the plaintiff alleged that he fractured his leg while trying to stop his
       daughter from running into the street when his foot caught in the loop of a metal
       fence that had fallen down at a Chicago park district play lot. Palmer, 277 Ill. App.
       3d at 284-85. The plaintiff alleged that the wire fence, which was 30 feet long and 3
       feet high, had been lying along the edge of the play lot for three months. Id. at 284.




                                                -7-
       Plaintiff further alleged that the defendant knew or should have known about the
       fence yet took no corrective action. Id. at 285. The appellate court reversed the
       circuit court’s dismissal of the plaintiff’s complaint. In so holding, the appellate
       court stressed the obvious and extraordinary danger posed by a 30-foot-long, fallen
       metal fence and concluded that plaintiff had stated a cause of action for willful and
       wanton misconduct where he alleged the defendant took “no corrective action”
       whatsoever to repair the fence or to warn patrons about it. Id. at 288-89.

¶ 30      The parties before us disagree as to whether this case is more like Lester or
       Palmer. We think it is the former.

¶ 31       Cracks and potholes in paved surfaces are an unfortunate but unavoidable
       reality, particularly in climates such as Chicago’s. The risk of injury from the crack
       at issue in this case, while real, was therefore nothing like the extraordinary and
       unusual risk posed by the 30-foot metal fence in Palmer. See, e.g., In re Estate of
       Stewart, 2016 IL App (2d) 151117, ¶ 105 (noting that the “nature of the danger”
       must be taken into consideration when evaluating whether a defendant’s conduct is
       willful and wanton). Moreover, there were no prior injuries involving the crack,
       which would have alerted defendant to any extraordinary risk or danger to the users
       of the path.

¶ 32        Further, unlike Palmer, it is undisputed that defendant in this case took
       corrective action. When defendant’s employee Arlow was notified of the crack in
       the pavement, he inspected it and placed it on the repair list for defendant’s rapid
       response program. In addition, there is no indication or allegation of unusual delay
       or foot-dragging on the part of defendant. Indeed, the defendant’s request to
       contractors for bid proposals, the bidding process, and the repair of the crack were
       all completed within 30 days.

¶ 33       Plaintiff emphasizes that defendant could have done more. Plaintiff points out
       that, once notified of the crack in the pavement, defendant could have immediately
       barricaded the path or performed a temporary repair using in-house employees,
       rather than waiting for an outside contractor. While this may be true, we think it
       clear that to equate defendant’s actions in this case “with willful and wanton
       conduct would render that standard synonymous with ordinary negligence.” Lester,
       159 Ill. App. 3d at 1059.




                                               -8-
¶ 34      On this record, we conclude that defendant was entitled to summary judgment
       on the question of willful and wanton conduct. Accordingly, we reverse the
       judgment of the appellate court and affirm the circuit court’s entry of summary
       judgment in defendant’s favor.


¶ 35                                        Conclusion

¶ 36       For the foregoing reasons, the judgment of the appellate court is reversed, and
       the judgment of the circuit court is affirmed.


¶ 37      Appellate court judgment reversed.

¶ 38      Circuit court judgment affirmed.



¶ 39      JUSTICE KILBRIDE, dissenting:

¶ 40       I respectfully dissent from the majority’s decision to reverse the appellate
       court’s judgment and affirm the judgment of the circuit court. I agree with the
       majority that section 3-107(a) of the Local Governmental and Governmental
       Employees Tort Immunity Act (Act) (745 ILCS 10/3-107(a) (West 2012)) does not
       afford the defendant park district absolute immunity. I disagree, however, with the
       majority’s determination that the defendant park district was entitled to summary
       judgment on the issue of whether its actions were willful and wanton under section
       3-106 of the Act (745 ILCS 10/3-106 (West 2012)). I believe this issue of fact
       should be left to the jury. Accordingly, I would affirm the appellate court’s
       judgment reversing the circuit court’s entry of summary judgment in favor of the
       defendant park district.

¶ 41       Summary judgment is proper when “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 2012). “Summary judgment is a drastic measure
       and should only be granted if the movant’s right to judgment is clear and free from
       doubt.” Seymour v. Collins, 2015 IL 118432, ¶ 42. Summary judgment should be




                                                -9-
       denied if a reasonable person could draw divergent inferences from undisputed
       facts. Pielet v. Pielet, 2012 IL 112064, ¶ 53. On a motion for summary judgment,
       the record must be construed strictly against the movant and liberally in favor of the
       nonmoving party. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). Summary
       judgment, therefore, is inappropriate when (1) there is a dispute as to a material
       fact, (2) persons could draw divergent inferences from undisputed facts, or
       (3) reasonable persons could differ on the weight to be given the relevant factors of
       a legal standard. Seymour, 2015 IL 118432, ¶ 42.

¶ 42       The Act defines “willful and wanton conduct” as “a course of action which
       shows an actual or deliberate intention to cause harm or which, if not intentional,
       shows an utter indifference to or conscious disregard for the safety of others or their
       property.” 745 ILCS 10/1-210 (West 2012). As the majority opinion correctly
       states, “[g]enerally, whether a defendant’s conduct is willful and wanton is a
       question for the jury.” Supra ¶ 27. Indeed, this court has long held that whether a
       plaintiff’s injury was caused by a defendant’s willful and wanton conduct is a
       question of fact to be determined by the jury. See Doe-3 v. McLean County Unit
       District No. 5 Board of Directors, 2012 IL 112479, ¶ 45; Murray v. Chicago Youth
       Center, 224 Ill. 2d 213, 245 (2007); Cirrincione v. Johnson, 184 Ill. 2d 109, 116
       (1998); Calloway v. Kinkelaar, 168 Ill. 2d 312, 326 (1995); Doe v. Calumet City,
       161 Ill. 2d 374 (1994); Smith v. Hill, 12 Ill. 2d 588, 595 (1958); Schneiderman v.
       Interstate Transit Lines, 394 Ill. 569, 583 (1946); Bernier v. Illinois Central R.R.
       Co., 296 Ill. 464, 470 (1921); Illinois Central R.R. Co. v. Leiner, 202 Ill. 624, 629
       (1903). Applying these principles to the summary judgment pleadings in this case
       establishes that a triable issue of material fact exists on whether the defendant park
       district’s actions were willful and wanton.

¶ 43       Contrary to the majority opinion’s findings, and as the appellate court correctly
       noted, the parties dispute the exact date the defendant park district learned of the
       crack but agree that it was no earlier than May 2013. 2016 IL App (1st) 152889,
       ¶ 54. The park district did not take action to repair the crack until July 10, 2013, or
       until approximately two months after learning of the crack. The appellate court
       noted that the evidence showed the defect was repaired through the rapid response
       program, used only for jobs that do not present safety concerns, when, in fact, the
       defect in this case was classified as an “emergency.” 2016 IL App (1st) 152889,
       ¶ 55. The evidence further showed that the defendant park district had methods to




                                               - 10 -
       expedite the repair process. Even though the defect was the sole 2013 Lakefront
       Trail repair to be classified as an “emergency,” the defendant park district did not
       make any effort to barricade, mark, or otherwise warn patrons of the defect.

¶ 44       In light of this evidence, I would hold that the appellate court properly
       concluded it was inappropriate for the trial court to hold, as a matter of law, that the
       defendant park district’s actions were not willful and wanton. The appellate court
       correctly determined that whether the defendant park district’s actions amounted to
       willful and wanton conduct is a question of fact for the jury to consider. I would
       therefore affirm the appellate court judgment, reverse the trial court judgment, and
       remand the cause for further proceedings.


¶ 45                  SEPARATE OPINION UPON DENIAL OF REHEARING


¶ 46      JUSTICE KILBRIDE, dissenting:

¶ 47       I would allow rehearing in this case. In my original dissent, I indicated my
       disagreement with the majority’s determination that the defendant park district was
       entitled to summary judgment on the issue of whether its actions were willful and
       wanton under section 3-106 of the Local Governmental and Governmental
       Employees Tort Immunity Act (745 ILCS 10/3-106 (West 2012)). I continue to
       believe that whether the defendant park district’s actions amounted to willful and
       wanton conduct is a question of fact that should be left for the jury to consider. I
       believe the appellate court properly concluded it was inappropriate for the trial
       court to hold, as a matter of law, that the defendant park district’s actions were not
       willful and wanton. I respectfully dissent from the court’s denial of the petition for
       rehearing.




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