                                   Illinois Official Reports

                                           Appellate Court



                             Abrams v. Oak Lawn-Hometown Middle School,
                                       2014 IL App (1st) 132987




Appellate Court               JULIE ABRAMS, Plaintiff-Appellee, v. OAK LAWN-HOMETOWN
Caption                       MIDDLE SCHOOL, OAK LAWN-HOMETOWN MIDDLE
                              SCHOOL DISTRICT 123, and SCHOOL DISTRICT 123,
                              Defendants-Appellants.


District & No.                First District, Fifth Division
                              Docket No. 1-13-2987


Filed                         March 21, 2014


Held                          In an action arising from the injuries plaintiff student suffered when
(Note: This syllabus          she fell in defendant school’s combined cafeteria and auditorium, or
constitutes no part of the    “Cafetorium,” the question certified by the trial court for interlocutory
opinion of the court but      appeal pursuant to Supreme Court Rule 308(a) as to whether the
has been prepared by the      immunity provided by section 3-106 of the Tort Immunity Act applies
Reporter of Decisions         when the area in which an injury occurs is located within a public
for the convenience of        school where the primary character of the area and overall facility is
the reader.)                  educational and nonrecreational was answered in the negative and the
                              cause was remanded for further proceedings, since there was no
                              indication that the area where plaintiff was injured was used for
                              recreation, it was not in the scope of the immunity provided by section
                              3-106, plaintiff’s action was not barred, and applying section 3-106 to
                              plaintiff’s claim would unreasonably extend a law designed to
                              encourage the development and maintenance of recreational areas.


Decision Under                Appeal from the Circuit Court of Cook County, No. 13-L-01276; the
Review                        Hon. William E. Gomolinski, Judge, presiding.



Judgment                      Certified question answered; cause remanded.
     Counsel on               Scott Pyles and Mario Carlasare, both of Ratherbun, Cservenyak &
     Appeal                   Kozol, LLC, of Joliet, for appellants.

                              William F. Gleason and Christopher I. Petrarca, both of Sraga Hauser,
                              LLC, of Flossmoor, for appellee.




     Panel                    JUSTICE McBRIDE delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Gordon and Justice Taylor concurred in the
                              judgment and opinion.




                                                OPINION

¶1         The issue on appeal is whether an Illinois public school district is shielded from
       negligence liability when a student is injured in a fall in her school’s combined cafeteria and
       auditorium or “Cafetorium.” The school district filed a motion to dismiss the student’s tort
       suit, arguing that the Cafetorium was “public property intended or permitted to be used for
       recreational purposes” and thus came within the tort liability exemption in section 3-106 of
       the Local Governmental and Governmental Employees Tort Immunity Act. 745 ILCS
       10/3-106 (West 1994) (Tort Immunity Act). The trial judge denied the school district’s
       motion and then certified a question for interlocutory appeal. Here, the school district
       contends the statute plainly applies and that the student cannot maintain her suit, and she
       counters that her action can go forward because the overall and regular use of the Cafetorium
       is for educational purposes.
¶2          The plaintiff, student Julie Abrams, was at the Oak Lawn-Hometown Middle School at
       5345 West 99th Street, Oak Lawn, Illinois at about 6:40 p.m. on April 19, 2012, to take part
       in an after-school event. Julie was one of the middle school students being inducted that
       evening into the National Junior Honor Society. Julie allegedly fell and was injured as
       students and their family members were filing into the school’s Cafetorium for the 7 p.m.
       induction ceremony. In the complaint Julie filed against the school (count I), the school
       district (count II), and what appears to be a variation of the school district’s name (count III),
       she attributed her accident to “a dark, non-illuminated, elevated, unmarked, [and] uneven
       surface.” Julie did not specify where she was in the room or what she was doing, nor did she
       give any indication of the nature or extent of her injury. The record indicates, however, that
       Julie was treated for a broken bone, underwent shoulder surgery, and incurred $35,800 in
       medical bills. Julie seeks in excess of $50,000 from each defendant.
¶3          Photographs and the deposition testimony of school principal Paul Enderle establish the
       following about the property at issue. The school has about 50 classrooms, the Cafetorium,
       which is a large, multipurpose room that is equivalent in size to about 5 classrooms


                                                   -2-
     combined, and also has a gymnasium, which is about twice the size as the Cafetorium. The
     Cafetorium’s open main floor is a series of four elevated tiers that face a stage that is
     approximately three feet tall. The room also holds sound equipment and the control room for
     the sound and lights. When the room was being used as an auditorium for Julie’s event,
     approximately 400 chairs had been arranged on the tiered floor to face the stage. When the
     Cafetorium is used as the school’s cafeteria, it is set up with foldable tables that have
     attached stools and wheels so the tables can be compacted and 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 such as the honor society. It is also regularly used for
     practices and performances of the school band, the chorus, and the drama programs.
     Taxpayers who live in the school district are allowed to use the Cafetorium for their
     nonschool-related functions, but this type of use happens less than one or two times per
     school year. The Cafetorium’s tiered floor makes the room unsuitable for athletics and no
     sporting events have ever been held in the room. When Enderle was told that Julie was
     injured, he went to look for her before the ceremony started and he found her “sitting on a
     step.” It is unclear from the record whether Enderle was referring to the tiered or stepped
     main floor, or to a stair.
¶4        The specific question certified by the trial court is as follows: “Where an injury occurs on
     an area of public property which has both recreational and nonrecreational 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 nonrecreational?”
¶5        We address this question de novo. In re Estate of Luccio, 2012 IL App (1st) 121153, ¶ 17,
     982 N.E.2d 927. This is an appeal pursuant to Supreme Court Rule 308, so our task is to
     answer the specific question and return the parties to the trial court without analyzing the
     propriety of the underlying order. Luccio, 2012 IL App (1st) 121153, ¶ 17, 982 N.E.2d 927;
     Ill. S. Ct. R. 308(a) (eff. Feb. 26, 2010). This is because appeals generally may be taken only
     from final judgment orders, but Rule 308 provides for exceptions. Luccio, 2012 IL App (1st)
     121153, ¶ 17, 982 N.E.2d 927. Pursuant to Rule 308(a), “When the trial court, in making an
     interlocutory order not otherwise appealable, finds that the order involves a question of law
     as to which there is substantial ground for difference of opinion and that an immediate appeal
     from the order may materially advance the ultimate termination of the litigation, the court
     shall so state in writing, identifying the question of law involved.” Ill. S. Ct. R. 308(a) (eff.
     Feb. 26, 2010). Then, in our discretion, we may agree to take the appeal. Ill. S. Ct. R. 308(a)
     (eff. Feb. 26, 2010). Rule 308 is not a means to take an expedited appeal of the underlying
     order. Luccio, 2012 IL App (1st) 121153, ¶ 17, 982 N.E.2d 927.
¶6        Local public entities are held to the same standard as private tortfeasors and under the
     common law have had a duty to exercise ordinary care to maintain their property in a
     reasonably safe condition. Bubb v. Springfield School District 186, 167 Ill. 2d 372, 377, 657
     N.E.2d 887, 891 (1995). The legislature codified this common law duty in section 3-102 of
     the Tort Immunity Act, but created immunities and defenses that, if properly raised and
     proved, will bar a plaintiff’s right to recover from a public entity. Bubb, 167 Ill. 2d at 378,
     657 N.E.2d at 891. The legislature created 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, 424, 943 N.E.2d


                                                 -3-
     221, 235 (2011). “ ‘ “Taxes are raised for certain specific governmental purposes; and, if they
     could be diverted to the payment of the damage claims, the more important work of
     government, which every municipality must perform regardless of its other relations, would
     be seriously impaired if not totally destroyed.” ’ ” Davis v. Chicago Housing Authority, 136
     Ill. 2d 296, 302, 555 N.E.2d 343, 345-36 (1990) (quoting 18 Eugene McQuillin, Municipal
     Corporations § 53.24 (3d ed. 1963)).
¶7        Initially, section 306’s immunity was limited to parks, playgrounds, and open areas used
     for recreational purposes, but even with this and other immunities in effect in the mid 1980’s,
     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, 689 N.E.2d
     1119, 1124 (1997). In order to reduce the cost of liability insurance, the legislature broadened
     the scope of immunity, stating in the current version of the statute:
              “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 1994).
     Thus, 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.
¶8        In Davis, 136 Ill. 2d 296, 555 N.E.2d 343, the court rejected the argument that to claim
     immunity under section 3-106, the “public property” must be open for use by the general
     public. 745 ILCS 10/3-106 (West 1994). The Tort Immunity Act defines “ ‘public property’ ”
     and “ ‘property of a local public entity’ ” as “ ‘real or personal property owned or leased by a
     local public entity.’ ” 745 ILCS 10/3-101 (West 1994). The recreational property in Davis
     was a playground at a public housing project that was owned, operated, and maintained by
     Chicago’s municipal housing authority. Davis, 136 Ill. 2d 296, 555 N.E.2d 343. The play
     area was for the exclusive use of the tenants, residents, and their guests. Davis, 136 Ill. 2d at
     298, 555 N.E.2d at 344. The court reasoned that it was neither expressly stated in the statute
     nor could it be reasonably implied that “public property” for purposes of the Tort Immunity
     Act is property that the general public can access. Davis, 136 Ill. 2d at 300, 555 N.E.2d at
     344-45. Even though only certain people were allowed access to the housing authority’s
     playground, the play area was still “public property” within the meaning of the Tort
     Immunity Act, and the statute barred the young boy’s personal injury claim. Davis, 136 Ill.
     2d at 300, 555 N.E.2d at 344-45. Also, it is 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, 755 N.E.2d 30, 33 (2001); Sylvester, 179 Ill.
     2d at 509, 689 N.E.2d at 1124. For instance, in Hanover Insurance Co. v. Board of Education
     of the City of Chicago, 240 Ill. App. 3d 173, 174, 608 N.E.2d 183, 184 (1992), a mason was
     working, not engaging in any recreational activity, when he was injured on a elementary
     school playground in Chicago by slipping on cracked and uneven concrete. Relying on the
     plain language of the statute, the court noted that section 3-106 applies to “public property
     intended or permitted to be used for recreational purposes.” (Emphasis added and internal
     quotation marks omitted.) Hanover, 240 Ill. App. 3d at 176, 608 N.E.2d at 185. It does not

                                                 -4-
       apply to individuals who are using public property for recreation. Hanover, 240 Ill. App. 3d
       at 176, 608 N.E.2d at 185. Therefore, regardless of what the mason was doing at the time, the
       fact that he was injured on the school’s playground–recreational property–meant the Tort
       Immunity Act barred his negligence action against the school board. Hanover, 240 Ill. App.
       3d at 178, 608 N.E.2d at 186-87. In short, because the nature of the property is dispositive,
       the Tort Immunity Act barred the claims of both the young boy in Davis who was playing on
       public playground when he was injured and the adult in Hanover who was repairing the
       public playground when he was injured.
¶9         In Larson v. City of Chicago, 142 Ill. App. 3d 81, 86, 491 N.E.2d 165, 168 (1986), the
       defendant municipality urged the court to find that a public sidewalk in a residential
       neighborhood was exempted as recreational property, because the plaintiff was injured while
       roller skating down the walk. However, the court held that focusing on what the individual
       plaintiff was doing when she was injured on public property was “an unwarranted
       interpretation of section 3-106.” Larson, 142 Ill. App. 3d at 86, 491 N.E.2d at 168. The
       purpose of the statute has been to encourage the development and maintenance and
       recreational property such as parks and playgrounds, but a residential sidewalk is not a
       similar open area that the city had developed and designated for recreation. Larson, 142 Ill.
       App. 3d at 86-87, 491 N.E.2d at 168. Accordingly, the Tort Immunity Act did not bar the
       injured roller skater from pursuing her allegations that the municipality was liable to her
       because it had negligently maintained its sidewalk. Larson, 142 Ill. App. 3d at 86-87, 491
       N.E.2d at 168.
¶ 10       Bubb is another helpful case because it concerned an elementary school girl in
       Springfield leaving campus on her bike and accidentally riding off the edge of a wide
       sidewalk and onto some grass. Bubb, 167 Ill. 2d at 374, 657 N.E.2d at 889. The four-inch
       height difference between the school’s sidewalk and its grassy area allegedly caused the child
       to fall over and get hurt. Bubb, 167 Ill. 2d at 374, 657 N.E.2d at 889. The court noted that
       section 3-106 immunity should not be applied to all school property per se. Bubb, 167 Ill. 2d
       at 383, 657 N.E.2d at 893. In determining whether public property is recreational, courts are
       to 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, 657 N.E.2d at 893. The
       school’s sidewalk was situated between the grass and an asphalt playground and it was
       painted with yellow lines to play the game known as four-square. Bubb, 167 Ill. 2d at 375,
       657 N.E.2d at 889. The principal testified that school children were intended and permitted to
       play on the sidewalk and that teachers supervising recess allowed children to play in this
       area. Bubb, 167 Ill. 2d at 383, 657 N.E.2d at 893. The plaintiff schoolgirl testified that she
       and other school children frequently played on the sidewalk that surrounded the school.
       Bubb, 167 Ill. 2d at 383, 657 N.E.2d at 893. These facts indicated the school intended for the
       area where the injury occurred to be a recreational area for the children, which meant the
       school district was immunized from the girl’s action. Bubb, 167 Ill. 2d at 383, 657 N.E.2d at
       893.
¶ 11       The court emphasized that the painted four-square lines were just one indicator of intent
       and that “[c]afeterias and stairwells would not be converted into recreational property simply
       by schools painting four-square lines on these areas.” Bubb, 167 Ill. 2d at 384, 657 N.E.2d at
       894. The term “permitted” in the statute does not sweep in all public property where
       recreation might occur or where it is not expressly prohibited. Bubb, 167 Ill. 2d at 381, 657


                                                 -5-
       N.E.2d at 893. If “permitted” were given such an expansive interpretation, then section 3-106
       immunity would swallow up any liability the public entity has for its property. Bubb, 167 Ill.
       2d at 381, 657 N.E.2d at 892.
¶ 12       We start our analysis of the public property at issue by noting that the statute does not
       mention public schools, public school cafeterias, or public school auditoriums. The school’s
       combined cafeteria and auditorium or Cafetorium is obviously not one of the “parks,
       playgrounds, [or] open [recreational] areas” listed in the statute, but it could possibly be one
       of the “buildings, or other enclosed recreational facilities” listed there. 745 ILCS 10/3-106
       (West 1994).
¶ 13       Even so, there is no indication in the record that the school has ever intended or permitted
       the Cafetorium to be used for recreational purposes. Instead, in our opinion, the uses that
       principal Enderle described were all educational or incidental to educational uses, which are
       nonrecreational 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 lunch room and the various
       events including student assemblies, school club meetings, and induction ceremonies to
       school groups such as the honor society. We reject the school district’s contention that the
       school band, chorus, and drama programs make recreational use of the Cafetorium,
       particularly when giving performances. We find that the students’ musical and dramatic
       practices and performances are part of the educational process and are not recreational uses.
       Chorus performances, band performances, and school plays 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, 666 N.E.2d 687, 690
       (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 & Exposition
       Authority, 302 Ill. App. 3d 573, 577, 707 N.E.2d 140, 143 (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.
¶ 14       We conclude the record does not indicate the Cafetorium has been used for recreation in
       the past or that the school has encouraged recreational use there. Therefore, the Cafetorium is
       not property that comes within the scope of section 3-106. 745 ILCS 10/3-106 (West 1994).
       Section 3-106 of the Tort Immunity Act does not bar Julie’s action against the school board
       for the injuries she allegedly suffered when she fell in the Cafetorium. 745 ILCS 10/3-106
       (West 1994). Immunizing the school district from tort liability to this plaintiff would be an
       unreasonable extension of a law whose purpose is to encourage the development and
       maintenance of parks and similar recreational areas.
¶ 15       Accordingly, we answer the certified question “no” and remand for further proceedings.

¶ 16      Certified question answered; cause remanded.




                                                   -6-
