                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                     Grundy v. Lincoln Park Zoo, 2011 IL App (1st) 102686




Appellate Court            MARY GRUNDY, Plaintiffs-Appellees, v. LINCOLN PARK ZOO,
Caption                    LINCOLN PARK ZOOLOGICAL SOCIETY, LEVY RESTAURANTS,
                           INC., and CHICAGO PARK DISTRICT, Defendants (Lincoln Park
                           Zoological Society, Defendant-Appellant).



District & No.             First District, First Division
                           Docket No. 1-10-2686


Filed                      August 1, 2011


Held                       In an action for the injuries plaintiff suffered when she tripped on the leg
(Note: This syllabus       of a sign at a café located in a park district zoo, the appellate court
constitutes no part of     answered four questions certified by the trial court by setting forth that a
the opinion of the court   stationary but movable sign sitting in the same location in an outdoor
but has been prepared      food court constituted a condition of public property for purposes of
by the Reporter of         section 3-106 of the Tort Immunity Act even though the sign was not
Decisions for the          “affixed to the property,” the sign qualified as “public property” under
convenience of the         section 3-106, but that answer does not address the issue of whether
reader.)
                           plaintiff’s alleged injury was caused by a “condition” of the sign, and the
                           qualification made by the appellate court in Stein that a “condition” of the
                           property should be part of the property’s mode or state of being is no
                           longer in force.


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-L-9205; the Hon.
Review                     Jeffrey Lawrence, Judge, presiding.
Judgment                    Certified questions answered; cause remanded.


Counsel on                  Chicago Park District Law Department, of Chicago (Nelson A. Brown,
Appeal                      Jr., of counsel), for appellant.

                            No brief filed for appellee.


Panel                       JUSTICE HOFFMAN delivered the judgment of the court, with
                            opinion.
                            Presiding Justice Hall and Justice Lampkin concurred in the judgment
                            and opinion.



                                               OPINION

¶1          Lincoln Park Zoological Society (Lincoln Park) filed this interlocutory appeal in
        connection with a suit filed by the plaintiff, Mary Grundy, against it, Lincoln Park Zoo (Zoo),
        Levy Restaurants, and the Chicago Park District. The plaintiff filed the suit to recover
        damages for injuries she allegedly sustained after tripping over the steel leg of a sign at a café
        located in the Zoo. In the course of the litigation, the circuit court certified four questions for
        our review pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010):
                    “1. Does a stationary but movable warning sign sitting in the same location in the
                outdoor food court of the Park Place Café in the Lincoln Park Zoo for the Zoo’s
                summer season constitute ‘a condition of any public property’ under Section 3-106
                of the Tort Immunity Act?
                    2. Is a stationary but movable warning sign sitting in the same location in the
                outdoor food court of the Park Place Café in the Lincoln Park Zoo for the Zoo’s
                summer season ‘affixed to the property’ under Stein v. Chicago Park District’s
                interpretation of Section 3-106 of the Tort Immunity Act?
                    3. Is a stationary but movable warning sign sitting in the same location in the
                outdoor food court of the Park Place Café in the Lincoln Park Zoo for the Zoo’s
                summer season ‘public property’ under section 3-101 of the Tort Immunity Act?
                    4. After the decision in Callaghan v. Vill. Clarendon Hills, is Stein v. Chicago
                Park District’s interpretation of Section 3-106 holding that ‘public property’ must
                be ‘affixed to the property’ so as to become part of its ‘mode or state of being’ still
                good law in Illinois?”
¶2          Although we initially declined to accept Lincoln Park’s petition seeking our review of
        these questions, the supreme court has by supervisory order directed us to accept the appeal
        and answer the certified questions.

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¶3        Before considering those questions, we observe that the plaintiff has not filed a
     responsive brief in this appeal. In that situation, our supreme court’s decision in First Capitol
     Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 345 N.E.2d 493 (1976),
     normally dictates that a court consider the merits of an appeal if the issues and record are
     susceptible to easy decision, but that a court otherwise decide the case in favor of the
     appellant if the appellant establishes a prima facie case for reversal. Millineum Maintenance
     Management, Inc. v. County of Lake, 384 Ill. App. 3d 638, 640-41, 894 N.E.2d 845 (2008)
     (superceded by statute on another point, as explained in Our Savior Evangelical Lutheran
     Church v. Saville, 397 Ill. App. 3d 1003, 1026, 922 N.E.2d 1143 (2009)). However, in an
     appeal considering certified questions, Talandis does not apply directly, because ruling in
     favor of the appellant who establishes a prima facie case would entail not ordering a case-
     specific outcome, but rather articulating a legal proposition that may or may not be correct.
     Millineum Maintenance, 384 Ill. App. 3d at 641. For that reason, and because the supreme
     court has directed us to do so, we address the certified questions on their merits regardless
     of their simplicity. Because we are presented solely with questions of law, our review is de
     novo. Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 153, 879 N.E.2d 893 (2007).
¶4        We begin with the first certified question, which asks whether a movable sign that
     remains stationary for the summer season constitutes “a condition of any public property”
     under section 3-106 of the Local Governmental and Governmental Employees Tort Immunity
     Act (Act) (745 ILCS 10/3-106 (West 2008)). This question prompts us to interpret section
     3-106 of the Act. For a court interpreting a statute, the goal is to ascertain the legislature’s
     intent in enacting the statute, and the best indicator of that intent is the statute’s language,
     given its plain and ordinary meaning. Johnston v. Weil, 241 Ill. 2d 169, 175, 946 N.E.2d 329
     (2011).
¶5        Section 3-106 of the Act, which carves an immunity from public entities’ common-law
     duty to exercise ordinary care to maintain their property in a reasonably safe condition (see
     745 ILCS 10/3-102 (West 2008); Bubb v. Springfield School District 186, 167 Ill. 2d 372,
     377-78, 657 N.E.2d 887 (1995)), states as follows:
              “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, *** unless such local entity or public
              employee is guilty of willful and wanton conduct proximately causing such injury.”
              745 ILCS 10/3-106 (West 2008).
¶6        The first certified question focuses our attention on the meaning of the phrase “a
     condition of any public property.” Although, as the circuit court observed and Lincoln Park
     observes, there is some case law interpreting that phrase, that case law is not entirely
     consistent.
¶7        Our supreme court first interpreted the phrase in McCuen v. Peoria Park District, 163
     Ill. 2d 125, 643 N.E.2d 778 (1994). In McCuen, the plaintiff was allegedly injured in a fall
     from a hayrack ride after a park district employee negligently harnessed the mules pulling
     the hayrack. McCuen, 163 Ill. 2d at 126-27. In response to a certified question, the supreme
     court concluded that section 3-106 of the Act did not create immunity for the alleged


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       negligence. The supreme court reasoned as follows:
                    “We do not believe that a driverless hayrack is a condition of public property
                within the meaning of section 3-106. Plaintiffs do not claim that the hayrack itself
                was dangerous, defective or negligently maintained, only that the mule team was not
                handled properly by the park district employee. The handling of the mule team does
                not relate to the condition of the hayrack itself. If otherwise safe property is misused
                so that it is no longer safe, but the property itself remains unchanged, any danger
                presented by the property is due to the misuse of the property and not to the condition
                of the property.” McCuen, 163 Ill. 2d at 129.
¶8         While the supreme court in McCuen interpreted whether a deficiency constituted a
       “condition of public property” within the meaning of section 3-106, it provides only limited
       guidance on our first certified question. That first certified question asks not whether section
       3-106 provides immunity for a condition of a movable sign, but whether the movable sign
       itself constitutes a condition of property. The question, then, asks us to determine what
       constitutes a condition of real property. The reasoning of McCuen, on the other hand, seems
       to have been limited to determining what constituted a condition of a hayrack, a piece of
       movable personal property.
¶9         In two later decisions interpreting other portions of section 3-106, the supreme court
       provided implicit guidance on the question we now face. In the first of the two decisions,
       Sylvester v. Chicago Park District, 179 Ill. 2d 500, 689 N.E.2d 1119 (1998), the plaintiff
       alleged that she was injured after she tripped on a concrete parking abutment that the
       Chicago Park District had negligently allowed to block a walkway adjacent to the exit for
       recreational facility parking lot. Sylvester, 179 Ill. 2d at 501. The parking abutment “weighed
       approximately 100 pounds and took several men or a forklift to move.” Sylvester, 179 Ill. 2d
       at 505. The Park District argued that it was entitled to immunity pursuant to section 3-106,
       and the supreme court agreed. The court, however, focused its discussion on whether the
       walkway constituted “recreational property”; it assumed without discussion that the concrete
       parking abutment constituted “a condition of any public property.” See Sylvester, 179 Ill. 2d
       508-11 (discussing only the “recreational property” issue before determining that the park
       district was entitled to immunity).
¶ 10       In Rexroad v. City of Springfield, 207 Ill. 2d 33, 796 N.E.2d 1140 (2003), a later decision
       also considering whether property constituted “recreational property” under section 3-106,
       the supreme court distinguished Sylvester on the ground that the property at issue in Sylvester
       benefitted a purely recreational area, while the property in Rexroad benefitted
       nonrecreational areas as well. Rexroad, 207 Ill. 2d at 41. In so doing, the supreme court
       described Sylvester as involving a plaintiff who “tripped on a misplaced, concrete car stop.”
       Rexroad, 207 Ill. 2d at 41.
¶ 11       These three decisions leave little doubt that the supreme court has understood, if not
       outright announced, that section 3-106 immunity extends to injuries caused by the condition
       of movable personal property, as in McCuen, or by movable items on real property, as in
       Sylvester. The supreme court’s decision in Rexroad, in fact, goes so far as to explain that
       section 3-106 immunity applies in the case of “misplaced” movable items. Because section


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       3-106 provides immunity only for injuries caused by “a condition of public property,” we
       must take from these supreme court decisions that it has concluded that misplaced movable
       items can constitute a condition of public property.
¶ 12        Although the supreme court’s guidance on this point seems clear, appellate court
       decisions on the same subject have been less consistent, and at least three are in express
       conflict. In the first of those three decisions, Stein v. Chicago Park District, 323 Ill. App. 3d
       574, 752 N.E.2d 631 (2001), the plaintiff was injured when she tripped over a watering hose
       on park property. When the defendant park district sought immunity under section 3-106, the
       First District of the Appellate Court concluded that the watering hose did not constitute a
       condition of the park property. The court reasoned that a “condition” should be “part of the
       property’s ‘mode or state of being’ [citation], i.e., part of the property itself,” a description
       that did not apply to a hose that “was moved from place to place ***, then returned to storage
       at the end of the day.” Stein, 323 Ill. App. 3d at 577. The court concluded by stating that the
       watering hose “was not affixed to the property in such a way as to become a part of the
       property itself.” Stein, 323 Ill. App. 3d at 577.
¶ 13        Nine years later, the Second District issued Callaghan v. Village of Clarendon Hills, 401
       Ill. App. 3d 287, 929 N.E.2d 61 (2010), a decision that criticized and departed from Stein’s
       reasoning. In Callaghan, the plaintiff alleged that she slipped and fell on an unnatural
       accumulation of ice and snow on a public sidewalk, and the defendant public entities
       countered that, because the sidewalk was located on recreational property, section 3-106
       immunized them from any negligence action. Callaghan, 401 Ill. App. 3d at 288-89. After
       considering whether the property at issue was actually recreational, the Second District went
       on to address the plaintiff’s argument that section 3-106 should not apply because the
       unnatural accumulation did not constitute a “condition” of the property because it was not
       affixed to the property. Callaghan, 401 Ill. App. 3d at 299. The Second District disagreed
       with Stein’s statement that an item must be affixed to property in order to constitute a
       “condition” of that property, both because the Act’s definition of “public property” included
       movable personal property (see 745 ILCS 10/3-101 (West 2008)) and because prior court
       decisions had applied section 3-106 immunity to movable conditions of public property. See
       Callaghan, 401 Ill. App. 3d at 299-300 (citing Sylvester, 179 Ill. 2d 500 (movable concrete
       car stop), Kayser v. Village of Warren, 303 Ill. App. 3d 198, 707 N.E.2d 285 (1999)
       (movable chair propping exit door open), Majewski v. Chicago Park District, 177 Ill. App.
       3d 337, 532 N.E.2d 409 (1988) (broken glass on football field)).
¶ 14        The First District recently took up the issue again and issued a third conflicting appellate
       court decision in Moore v. Chicago Park District, 2011 IL App (1st) 103325. In Moore, the
       First District considered a certified question asking whether an unnatural accumulation of
       snow and ice constitutes a condition of public property under section 3-106. The Moore
       majority answered that question in the negative, by following McCuen’s analysis of the
       hayrack accident to state that the snow accumulation was created by an employee’s activity
       (moving the snow) rather than the condition of the property. Moore, 2011 IL App (1st)
       103325, ¶ 18. The majority further explained that, to the extent there was a conflict, it would
       follow Stein over Callaghan, and it therefore reasoned that snow cannot be a “condition”
       because it is temporary and not affixed to the property as Stein requires. Moore, 2011 IL App

                                                 -5-
       (1st) 103325, ¶¶ 13-16. In her dissent, Justice Connors argued, persuasively, that the majority
       had misunderstood McCuen and that it was not the action of moving snow that harmed the
       plaintiff, but the snowy and icy condition of the property. Moore, 2011 IL App (1st) 103325,
       ¶¶ 21-27 (Connors, J., dissenting). Justice Connors also would have eschewed movability–an
       idea that the supreme court did not rely on in McCuen–as a factor in determining whether
       something constitutes a “condition” of property; she would have instead focused entirely on
       whether “a plaintiff’s injury was caused by the property itself or by an activity conducted on
       it.” Moore, 2011 IL App (1st) 103325, ¶ 26 (Connors, J., dissenting).
¶ 15        Because we view as binding the supreme court decisions described at the outset of this
       discussion, we need not resolve any conflicts in the above appellate court decisions. To the
       extent those appellate court decisions conflict with the supreme court’s approach in Sylvester
       and Rexroad, we, of course, follow the supreme court. See Robinson v. Johnson, 346 Ill.
       App. 3d 895, 907, 809 N.E.2d 123 (2003) (stating that supreme court decisions bind lower
       courts). As we indicated above, the supreme court has rather clearly indicated that a movable,
       nonaffixed item may constitute a “condition” of real property under section 3-106. Further,
       to the extent the appellate court decisions suggest that the permanence of a movable item’s
       placement on recreational property should be a factor in determining whether it constitutes
       a “condition” of that property, we see no reason to distinguish the parking abutment in
       Sylvester from the sign here, which our certified question stipulates remained stationary for
       the entire summer season.
¶ 16        For these reasons, we answer the first certified question in the affirmative. A stationary
       but movable warning sign sitting in the same location in the outdoor food court of the Park
       Place Café in the Lincoln Park Zoo for the Zoo’s summer season does constitute “a condition
       of any public property” under section 3-106 of the Act.
¶ 17        Our answer to the first certified question renders moot the second certified question,
       which asks whether a sign of the type at issue here qualifies as something “affixed to the
       property” under Stein. Because the supreme court has interpreted section 3-106 “conditions”
       as including even items that are not affixed to recreational property, Stein’s “affixed to the
       property” qualification has no basis in Illinois law.
¶ 18        The third certified question asks whether a sign of the type at issue here can qualify as
       “public property” under section 3-106. Our answer to this question is that it can, because the
       Act very clearly defines “public property” as including “real or personal property owned or
       leased by a local public entity.” 745 ILCS 10/3-101 (West 2008). We note, however, that our
       answer to this question does not address the issue of whether the plaintiff’s alleged injury
       was caused by a “condition” of the sign; that is, we are not called upon to, and we do not,
       decide whether the location of personal property constitutes a “condition” of that personal
       property.
¶ 19        The fourth, and final, certified question asks whether Stein’s “affixed to the property”
       qualification remains in force. For the reasons discussed above, we answer that it does not.
¶ 20        In summary, we answer the first certified question in the affirmative, the third certified
       question in the affirmative, and the fourth certified question in the negative. We deem the
       second certified question moot.


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¶ 21   Certified questions answered; cause remanded.




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