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                                      Appellate Court                           Date: 2017.01.11
                                                                                10:39:39 -06'00'




                   Cohen v. Chicago Park District, 2016 IL App (1st) 152889



Appellate Court          ISAAC COHEN, Plaintiff-Appellant,          v.   CHICAGO         PARK
Caption                  DISTRICT, Defendant-Appellee.



District & No.           First District, Fourth Division
                         Docket No. 1-15-2889



Filed                    October 27, 2016
Rehearing denied         December 7, 2016



Decision Under           Appeal from the Circuit Court of Cook County, No. 14-L-5476; the
Review                   Hon. William E. Gomolinski, Judge, presiding.



Judgment                 Reversed and remanded.



Counsel on               Schiff Gorman, LLC (Elliot R. Schiff, of counsel), and Marasa Lewis,
Appeal                   Ltd. (Jill B. Lewis, of counsel), both of Chicago, for appellant.

                         George P. Smyrniotis and Fabian Guana, of Chicago, for appellee.



Panel                    JUSTICE BURKE delivered the judgment of the court, with opinion.
                         Justices McBride and Howse concurred in the judgment and opinion.
                                                   OPINION

¶1        Plaintiff, Isaac Cohen, injured his shoulder after riding over a defect in the Lakefront Trail
     and falling off of his bike. He filed suit against defendant, the Chicago Park District (Park
     District), claiming it engaged in willful and wanton conduct by failing to repair the defect. The
     trial court granted summary judgment in favor of the Park District, finding it was immune from
     liability under section 3-107(a) of the Local Governmental and Governmental Employees Tort
     Immunity Act (Act) (745 ILCS 10/3-107(a) (West 2012)), which grants absolute immunity to
     local entities for injuries caused by a condition of a “road which provides access to fishing,
     hunting, or primitive camping, recreational, or scenic areas.” The court also found the Park
     District’s conduct was not willful and wanton and thus, even if section 3-107(a) of the Act did
     not apply, the Park District was immune from liability under section 3-106 of the Act (745
     ILCS 10/3-106 (West 2012)), which provides immunity for injuries occurring on recreational
     areas, except where a local public entity engages in willful and wanton conduct proximately
     causing the injuries. Id.
¶2        On appeal, plaintiff argues the trial court erred by (1) finding the Lakefront Trail fell within
     the scope of section 3-107(a) of the Act, (2) finding section 3-107(a) of the Act governed
     instead of section 3-106, and (3) finding as a matter of law that the jury could never find the
     Park District’s conduct to be willful and wanton.
¶3        We conclude the trial court erred by finding section 3-107(a) of the Act applied and by
     finding no genuine issue of fact existed as to whether the Park District’s conduct was not
     willful and wanton. Accordingly, we reverse the court’s grant of summary judgment and
     remand for further proceedings.

¶4                                          I. BACKGROUND
¶5       Plaintiff testified in a deposition that on a Sunday morning in July 2013 he was riding his
     bike southbound on the Lakefront Trail near the Shedd Aquarium when he veered toward the
     middle of the trail to pass a pedestrian.1 His wheel became caught in a crack in the concrete.
     The crack was about three or four feet long, two to three inches deep, and three to four inches
     wide at its widest part. Plaintiff fell, injuring his shoulder. The next week, he went for another
     bike ride and noticed the defect had been repaired.
¶6       In 2011, the Park District partnered with the Active Transportation Alliance to study
     Lakefront Trail usage. Plaintiff attached the Active Transportation Alliance’s report to its
     response to the Park District’s motion for summary judgment. The Alliance’s report, and the
     deposition testimony of various Park District employees, established that the Lakefront Trail is
     an approximately 18-mile, multi-use trail that runs along the lakefront from Ardmore Street on
     the north to 71st Street on the south. It is made of concrete and asphalt and contains over 50
     access points. The purpose of the Lakefront Trail is to provide recreation. It is designed for use
     by bicyclists, and the Park District’s mission is to keep the Lakefront Trail safe for bicyclists.

         1
          Plaintiff testified in his deposition that the accident may have occurred on July 7, 2013, but he
     could “not say for sure.” He also testified the incident could have occurred “maybe” in the beginning of
     August; however, he thought it occurred in July. Plaintiff knew the accident happened on a Sunday and
     that by the following Sunday, the defect had been repaired. It is undisputed that the defect was repaired
     on July 10, 2013. Accordingly, the evidence suggests plaintiff’s accident occurred on July 7, 2013.

                                                     -2-
       The Lakefront Trail is not open to the public for vehicular travel; however, Park District
       maintenance vehicles utilize the trail. According to the deposition testimony of Park District
       employee Robert Thompson, the Lakefront Trail provides access to scenic views and various
       recreational areas such as a golf course, beaches, softball fields, tennis courts, and harbors.2
       The Park District’s overall mission is to (1) enhance the quality of life in Chicago by becoming
       the leading provider of recreation and leisure opportunities; (2) provide safe, inviting, and
       beautifully maintained parks and facilities; and (3) create a customer-focused and responsive
       park system that prioritizes the needs of children and families.
¶7          The Active Transportation Alliance’s report showed more than 70,000 people access the
       trail on a typical summer weekend day and more than 60,000 people access it on a typical
       summer weekday. The study indicated the trail is a primary transportation corridor for bicycle
       commuters and is an integral part of Chicago’s bicycle transportation network. During the
       study, 70% of people who accessed the trail were pedestrians, 29% were bicyclists, and 1%
       were other users. The report stated the Lakefront Trail is also used by “people training for
       marathons, parents with children in strollers, tourists on rental bikes, couples on in-line skates,
       teens on skateboards, and thousands of other people using the trail for commuting, training or
       just taking a leisurely stroll.” At the time of the Alliance’s report, the trail was “officially”
       closed between 11 p.m. and 6 a.m.
¶8          Linda Daly, Park District deputy director of capital construction, and Robert Rejman, Park
       District director of planning and construction, testified in depositions that man-made structures
       such as paved basketball courts, showers and restrooms, bike rental facilities, golf courses,
       parking lots, baseball fields, vendors, skate parks, and at least three bars and restaurants
       surround the Lakefront Trail. The grass around the Lakefront Trail is mowed, trees are
       trimmed, and gardens are maintained. Hunting around the trail is prohibited.
¶9          Park District employee William Gernady testified in a deposition that he inspects the
       Lakefront Trail annually for defects, including cracks in the pavement. Gernady has inspected
       the trail for 14 years. Every spring, Gernady drives along the Lakefront Trail twice and
       measures and marks with paint the areas that need to be repaired. Per his own policy, Gernady
       has any defect deeper than one and a half inches repaired.
¶ 10        After conducting his inspection, Gernady compiles a scope of repairs to be performed and
       creates a request for proposal to collect bids from a pool of pre-qualified “rapid response”
       contractors. The “rapid response” program is an expedited procurement process for the Park
       District through which most Lakefront Trail repairs are conducted. According to Rejman’s
       deposition testimony, rapid response requests are used for “jobs that aren’t absolutely
       necessary” and do not present safety concerns. Gernady testified the Park District notifies a
       contractor that it has accepted the contractor’s bid by providing the contractor with a “notice to
       proceed.” According to Rejman, the Park District also typically provides the contractor with an
       anticipated schedule indicating the date upon which the Park District would like the repair to
       be completed. At times, Gernady supervises the contractors’ repairs.
¶ 11        Daly testified that if Gernady discovered a defect during his inspection that he believed to
       be an emergency, that defect could “potentially” be priced out immediately, on its own, instead

          2
            Thompson testified in an unrelated case, and the Park District attached Thompson’s testimony to
       its motion for summary judgment. On appeal, plaintiff challenges the Park District’s reliance on
       Thompson’s testimony. We address plaintiff’s argument in this regard later in this opinion.

                                                    -3-
       of being included in the “scope of work” with the other repairs. Rejman testified that to
       expedite the repair process, the Park District can alert contractors that a repair is urgent.
       Gernady testified the Park District can also immediately contact a contractor, instead of
       submitting a notice to proceed, and instruct the contractor that he is allowed to proceed with
       the work. Rejman testified that at times, a contractor will make a repair within a few days;
       however, this depends on the availability of contractors, and repairs can “take a little bit
       longer” during a busy time of year. Gernady testified repairs can be completed “[w]ithin one
       day sometimes.”
¶ 12       Rejman testified that the Park District has blocked off areas of the Lakefront Trail with
       barricades and signs when those areas have been impassable due to difficult conditions.
       Rejman explained these larger barriers have been erected “in areas where a lot of damage has
       been done.” Rejman was not “aware” of the Park District ever marking potholes or cracks with
       bright-colored paint; however, he “would think” this was something the Park District was
       capable of doing. He did not think the Park District would place cones near cracks or holes
       because “the cones wouldn’t stay there for very long.”
¶ 13       Robert Arlow, the Park District’s director of facility management, testified in a deposition
       that he manages tradesmen who maintain and repair Park District buildings. Generally,
       Arlow’s department does not perform maintenance and repair work to the Lakefront Trail
       because it does not have an asphalt crew. However, if an absolute need arose to repair “a small
       thing,” Arlow “could probably send a carpenter out with a bag of asphalt.” Arlow only knew of
       this happening on one occasion, in June 2014. According to Arlow, the Lakefront Trail is
       repaired almost exclusively by outside contractors.3
¶ 14       Arlow receives complaints from Park District patrons about park conditions in need of
       repair. When he receives a call, Arlow inspects the defect himself or asks somebody else to
       check the defect and determine its severity. If Arlow determines the condition needs to be
       fixed, he calls a general foreman and tells him to send somebody to look at the condition and
       determine the type of repair that can be performed.
¶ 15       In the spring of 2013, Arlow received a call from a patron informing him of a defect on the
       Lakefront Trail between the Shedd Aquarium and South Lake Shore Drive. Arlow did not
       know the exact date he received the call, but because snow was not on the ground, he assumed
       it “had to be later than April.” Arlow inspected the defect within a few days of receiving the
       call and determined it was in need of repair. He contacted Gernady. Arlow did not know why
       he did not have a Park District laborer immediately fill the defect with asphalt.
¶ 16       Gernady testified he recalled receiving Arlow’s call regarding a dangerous crack in the
       “time zone of June” 2013. According to Gernady, this was the only 2013 Lakefront Trail repair
       that was classified as an emergency. Gernady included the crack in the scope of work that he
       prepared to solicit bids from the rapid response contractors. On June 10, 2013, the Park District
       sent a request for proposal to the rapid response contractors.


          3
            During her deposition, Linda Daly was asked whether Park District employees ever conduct
       repairs in-house. She responded that “[i]t would come through Bob Arlow’s department. I don’t know
       if they’ve done Lakefront Trail repairs.” Later, Daly testified if Arlow could not repair something
       in-house, he would ask Daly’s department to solicit an outside contractor. Daly confirmed that Arlow
       or his staff would first see whether they could address the issue themselves.

                                                    -4-
¶ 17       On June 12, 2013, Meccor Industries submitted a proposal. On June 19, the Park District
       sent a notice to proceed to Meccor Industries. It did not include a completion deadline.
       Subcontractor Beverly Asphalt Paving Company (Beverly) repaired the defect on July 10,
       2013. Gernady testified that before doing so, Beverly completed a repair on another part of the
       Lakefront Trail on June 19, 2013. Gernady could not explain the reason for the gap in
       Beverly’s work between June 19 and July 10.
¶ 18       About a year later, in approximately June 2014, Arlow received another complaint from a
       patron about the trail’s condition near the Shedd Aquarium. After viewing the condition,
       Arlow determined it was “[s]imilar but not as severe as where the accident occurred.” Arlow
       had the crack filled by in-house laborers.
¶ 19       In May 2014, plaintiff filed a complaint against the Park District, alleging it engaged in
       willful and wanton conduct by failing to repair the defect. 4 The Park District filed an answer,
       claiming its conduct was not willful or wanton. The Park District also filed an affirmative
       defense, asserting it was entitled to absolute immunity under section 3-107(a) of the Act.
¶ 20       In May 2015, the Park District filed a motion for summary judgment arguing, inter alia,
       that it was entitled to absolute immunity under section 3-107(a) of the Act because the
       Lakefront Trail was an “access road” to fishing, hunting, recreational, and scenic areas. The
       Park District further argued that even if it was not entitled to immunity under section 3-107(a)
       of the Act, it was entitled to immunity under section 3-106 of the Act because its conduct was
       not willful and wanton.
¶ 21       In July 2015, the trial court granted the Park District’s motion for summary judgment,
       finding the Park District was immune under section 3-107(a) of the Act because the Lakefront
       Trail was the type of road envisioned by that portion of the statute. The court also found that,
       even if section 3-107(a) of the Act did not apply, plaintiff failed to raise any material fact that
       the Park District engaged in willful and wanton conduct. The court found plaintiff’s allegations
       of utter indifference to or conscious disregard for the safety of others were meritless, as the
       Park District took affirmative steps to correct the defect after learning of it.
¶ 22       In August 2015, plaintiff filed a motion to reconsider, which the trial court denied. This
       appeal followed.

¶ 23                                           II. ANALYSIS
¶ 24       On appeal, plaintiff argues the trial court erred by (1) finding the Lakefront Trail fell within
       section 3-107(a) of the Act, (2) finding section 3-107(a) of the Act governed instead of section
       3-106, and (3) finding as a matter of law that the jury could never find the Park District’s
       conduct to be willful and wanton. We address plaintiff’s arguments in turn.

¶ 25                     A. Absolute Immunity Under Section 3-107(a) of the Act
¶ 26       Plaintiff first alleges the trial court erred by finding the Park District was immune from
       liability under section 3-107(a) of the Act. Specifically, plaintiff contends section 3-107(a)
       applies only to roads providing access to primitive recreational and scenic areas. Plaintiff

           4
           Plaintiff also named the City of Chicago as a defendant. However, after the Chicago Park District
       admitted ownership and maintenance responsibilities for the Lakefront Trail, the City filed a motion to
       dismiss, which the trial court granted.

                                                      -5-
       observes the Lakefront Trail is a paved, non-primitive, linear park surrounded by developed,
       commercial areas. Plaintiff maintains that in finding the Lakefront Trail fell within section
       3-107(a), the court ignored Illinois rules of statutory construction, case law, and public policy
       concerns associated with granting the Park District absolute immunity.
¶ 27        In interpreting section 3-107(a) of the Act, our primary objective is “to ascertain and give
       effect to the intent of the legislature.” (Internal quotation marks omitted.) Brunton v. Kruger,
       2015 IL 117663, ¶ 24. The best reflection of the legislature’s intent is the statute’s language,
       which we give its plain and ordinary meaning. Id. Words and phrases in a statute must be
       interpreted in light of other relevant statutory provisions and the statute as a whole, rather than
       in isolation. County of Du Page v. Illinois Labor Relations Board, 231 Ill. 2d 593, 604 (2008).
       We may also consider the purpose of the law and the consequences that would result in
       interpreting the statute one way or the other. Id. We presume the legislature did not intend
       absurdity, inconvenience, or injustice. Brucker v. Mercola, 227 Ill. 2d 502, 514 (2007).
¶ 28        “A statute is ambiguous if it is capable of being understood by reasonably well-informed
       persons in two or more different ways.” (Internal quotation marks omitted.) Brunton, 2015 IL
       117663, ¶ 24. Where statutory language is unclear or ambiguous, we may employ extrinsic
       aids of interpretation. Id. One such aid is the doctrine of in pari materia, pursuant to which we
       construe two statutes dealing with the same subject “so that they may be given harmonious
       effect.” (Internal quotation marks omitted.) Collinsville Community Unit School District No.
       10 v. Regional Board of School Trustees, 218 Ill. 2d 175, 185 (2006). However, this rule is
       subordinate to the “cardinal rule” of statutory construction that we must ascertain and give
       effect to the legislature’s intent. Id. at 186. Where a statute within the Act contains an
       ambiguity, the statute will be strictly construed against the public entity because the Act’s
       immunities “are in derogation of the common law.” McElroy v. Forest Preserve District, 384
       Ill. App. 3d 662, 666 (2008). Statutory interpretation involves a question of law, and
       accordingly, our standard of review is de novo. Brunton, 2015 IL 117663, ¶ 24.
¶ 29        Section 3-107(a) of the Act provides that a local public entity is not liable for an injury
       caused by a condition of “[a]ny 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).
¶ 30        The dispute in this case centers in part on the legislature’s use of the word “primitive.”
       Plaintiff argues that “primitive” modifies “camping,” “recreational,” and “scenic” and thus,
       section 3-107(a) grants absolute immunity only for injuries occurring on roads that provide
       access to “primitive” camping areas, “primitive” recreational areas, and “primitive” scenic
       areas. The Park District, by contrast, maintains that the word “primitive” applies solely to
       “camping” and not to “recreational” or “scenic” areas. The parties also dispute whether the
       Lakefront Trail is an “access road” within the meaning of the statute. Plaintiff contends the
       trail itself is recreational property that falls within section 3-106 of the Act and, thus, it is not an
       “access road” to recreational or scenic areas.5 In addition, plaintiff posits, the Lakefront Trail
       is not a “road.”

           5
            As evidence of the various recreational areas to which the Lakefront Trail provided access, the
       Park District attached to its summary judgment motion the deposition testimony of a former Park
       District employee in an unrelated case. On appeal, plaintiff challenges the inclusion of such testimony.

                                                      -6-
¶ 31        In finding section 3-107(a) applied to the Lakefront Trail, the trial court relied on the
       decision in Scott v. Rockford Park District, 263 Ill. App. 3d 853 (1994). There, a child was
       injured while riding his bike over a bridge that provided access to a public park. Id. at 854. The
       appellate court concluded the bridge fell within section 3-107(a) of the Act, despite the
       plaintiffs’ arguments that section 3-107 applied only to wilderness areas and that the bridge
       was not a road providing access to fishing, hunting, or primitive camping areas, recreational, or
       scenic areas. Id. at 855, 858. The Scott court reasoned that the plain language of the statute
       unambiguously granted “full immunity for access roads to fishing, hunting, primitive camping
       areas, recreational areas, and scenic areas.” Id. at 857. The court also stated the statute’s
       “requirement of ‘primitiveness’ clearly [did] not apply to the nature of access roads but, rather,
       to any camping areas thereby provided access.” Id. In reaching its decision, the court rejected
       the plaintiffs’ assertion that because the park and bridge were covered by section 3-106 of the
       Act, they were not encompassed by section 3-107. Id. at 856. The court found the “primary
       distinction” the legislature intended to draw in enacting sections 3-106 and 3-107 was
       between, on the one hand, recreation areas (section 3-106) and, on the other hand, roads other
       than streets or highways used to access recreational areas and trails (section 3-107). Id. The
       court found “no conflict in the legislature’s determination that local entities should be immune
       from liability only for negligent actions connected with the broader category of properties
       covered in section 3-106 while they would receive full immunity covering the trail and
       access-road properties covered in section 3-107.” Id. at 856-57. Further, the court stated, it was
       unaware of any clear indication that “access roads” under section 3-107(a) were only those
       roads “providing access to wilderness areas.” Id. at 857.
¶ 32        The Park District argues that Scott should control. Plaintiff, on the other hand, recognizes
       the Scott decision but argues that in more recent cases such as Goodwin v. Carbondale Park
       District, 268 Ill. App. 3d 489 (1994), and Brown v. Cook County Forest Preserve, 284 Ill. App.
       3d 1098 (1996), Illinois courts have found section 3-107 applies only to roads or trails in
       undeveloped areas. Plaintiff notes that in Scott, the court stated it was unaware of any
       indication that “access” roads were limited to roads providing access to wilderness areas. See
       Scott, 263 Ill. App. 3d at 857. Plaintiff posits that because Scott predated Goodwin and Brown,
       the Scott court did not have the benefit of those decisions when determining that access roads
       were not limited to roads providing access to “wilderness” areas. According to plaintiff, Scott
       is the sole Illinois decision to apply section 3-107 outside of the confines of a forest preserve.
¶ 33        In Goodwin, the plaintiff was injured when his bicycle collided with a tree that had fallen
       across a paved bike path in a city park controlled by the defendant, a park district. Goodwin,
       268 Ill. App. 3d at 490. The appellate court found the defendant was not entitled to immunity
       under section 3-107(b) of the Act, which immunizes a public entity from liability for injuries
       caused by a condition of a “ ‘hiking, riding, fishing or hunting trail.’ ” Id. at 491, 494 (quoting
       745 ILCS 10/3-107(b) (West 1992)). Specifically, the court found the path was not a “riding
       trail” within the meaning of section 3-107(b) of the Act. Id. at 492. The court noted that
       although sections 3-106 and 3-107 of the Act both applied to recreational property, section

       The Park District responds that plaintiff failed to challenge the testimony in the trial court and, in any
       event, the depositions could be used pursuant to Illinois Supreme Court Rule 212(a)(4) (eff. Jan. 1,
       2011). We need not resolve this dispute because we find section 3-107(a) of the Act relates only to
       primitive recreational and scenic areas; accordingly, the deposition testimony as to the various
       non-primitive recreational activities around the Lakefront Trail is irrelevant.

                                                       -7-
       3-106 provided immunity only for negligence, whereas section 3-107 provided absolute
       immunity. Id. at 492-93. The Goodwin court then went on to consider how the property
       described in section 3-107(b) differed from the property described in section 3-106. Id. at 493.
       The court stated as follows.
                “Reading section 3-107 as a whole indicates that the property referred to therein is
                unimproved property which is not maintained by the local governmental body and
                which is in its natural condition with obvious hazards as a result of that natural
                condition. Thus, access roads that are not maintained as city, town, or village streets or
                county, State, or Federal highways or township or road district highways are included
                in section 3-107(a). Such roads generally would be used only for access to unimproved,
                undeveloped recreational areas and generally not for access to developed city parks
                located within the city limits.” (Emphasis added.) Id.
       The Goodwin court explained that the legislature extended absolute immunity for injuries
       sustained on the properties specified in section 3-107(b) because of the burden that
       maintaining those types of properties would impose on governmental entities. Id. Further, the
       court stated, “requiring such maintenance would defeat the very purpose of these types of
       recreational areas, that is, the enjoyment of activities in a truly natural setting.” Id. The
       Goodwin court distinguished Scott on the basis that Scott interpreted section 3-107(a), while its
       decision involved section 3-107(b). Id. The court also stated that to the extent its reasoning
       differed from the Scott court’s reasoning, it believed the Scott court’s reasoning was wrong. Id.
¶ 34        Subsequent to Goodwin, our court in Brown agreed that “paved bicycle paths which
       traverse developed city land” are not “riding trails” for purposes of section 3-107(b). Brown,
       284 Ill. App. 3d at 1101. The plaintiff in Brown fell on a paved bike path in a forest preserve.
       Id. at 1099. Noting that “trail” was defined as a “marked path through a forest or mountainous
       region,” the court found section 3-107(b) applied to the bike path, which was designed to
       provide access to natural and scenic wooded areas around a lake. (Internal quotation marks
       omitted.) Id. at 1101. The court explained that it was irrelevant whether the path was paved, as
       the area in which the plaintiff fell was not “developed” simply because the path on which he
       was riding happened to be paved. Id.
¶ 35        Similarly, in Mull v. Kane County Forest Preserve District, 337 Ill. App. 3d 589, 592
       (2003), the court held a gravel bicycle path, which ran through some developed areas but was
       surrounded by wild grasses and shrubs, was a “trail” under section 3-107(b). The court
       distinguished Goodwin on the basis that the trail in Goodwin was located in a developed city
       park, whereas the trail in Mull was “surrounded by wooded or undeveloped land” and ran
       “through a forest preserve.” Id.
¶ 36        Following Mull, the court in McElroy v. Forest Preserve District, 384 Ill. App. 3d 662,
       666, 669 (2008), held that a wooden bridge in a forest preserve was part of a “hiking” or
       “riding trail” under section 3-107(b). In doing so, the court expressed its disagreement “with
       Goodwin’s contention that a trail must be ‘unimproved’ in order to fall under section
       3-107(b).” Id. at 667. The court noted that Mull and Brown both involved arguably “improved
       trails” and that those cases distinguished Goodwin on the basis that the trail in Goodwin ran
       though a developed city park. Id.
¶ 37        After reviewing the aforementioned cases, we agree with plaintiff that the legislature could
       not have intended section 3-107(a) of the Act to apply to the Lakefront Trail. We recognize, as
       the Park District points out, that Scott analyzed the defendant’s immunity under section

                                                    -8-
       3-107(a) of the Act. By contrast, Goodwin, Brown, Mull, and McElroy each considered the
       defendants’ immunity under section 3-107(b). Nonetheless, in light of the case law that has
       developed subsequent to Scott, we find Scott unpersuasive.
¶ 38        First, we disagree with the Scott court that the plain language of section 3-107(a) is
       unambiguous. See Scott, 263 Ill. App. 3d at 857. As previously detailed, section 3-107(a) of the
       Act immunizes a local public entity from liability for an injury caused by a condition of “[a]ny
       road which provides access to fishing, hunting, or primitive camping, recreational, or scenic
       areas.” 745 ILCS 10/3-107(a) (West 2012). This language can reasonably be interpreted as
       both of the parties suggest. On the one hand, the statute can be read to provide immunity for
       injuries arising on roads providing access to primitive camping areas, primitive recreational
       areas, and primitive scenic areas. However, the statute can also be read as providing immunity
       for injuries arising on roads that provide access to primitive camping, recreational areas, and
       scenic areas. Thus, we find the statute to be ambiguous. See Brunton, 2015 IL 117663, ¶ 24 (a
       statute is ambiguous if it can be understood by reasonably well-informed persons in two or
       more different ways).
¶ 39        Because section 3-107(a) is ambiguous, we may utilize the doctrine of in pari materia to
       interpret its meaning. In doing so, it is appropriate to consider section 3-107(a) in pari materia
       with section 3-107(b). See Collinsville, 218 Ill. 2d at 185-86 (under the doctrine of
       in pari materia, we construe two statutes dealing with the same subject so that they are given
       harmonious effect; the doctrine also applies to different sections of the same statute and is
       consistent with the rule of statutory construction that we must view all of the provisions of a
       statute as a whole).
¶ 40        As previously detailed, since the Scott decision, Illinois courts have uniformly found
       section 3-107(b) does not apply to trails in developed areas. See Brown, 284 Ill. App. 3d at
       1101 (paved bike paths that traverse developed city land are not “riding trails” under section
       3-107(b)); Goodwin, 268 Ill. App. 3d at 493-94 (a paved bike path in a developed city park is
       not included within section 3-107(b)); see also Mull, 337 Ill. App. 3d at 592 (distinguishing
       Goodwin on the basis that the trail in Goodwin was located in a developed city park). That
       section 3-107(b) has been limited to trails in undeveloped areas supports a determination that
       section 3-107(a) was likewise intended only to apply to access roads to undeveloped and
       primitive areas. Further, we note, the legislature clearly limited immunity under section
       3-107(a) to access roads to “primitive” camping areas as opposed to all camping areas. It is
       logical to infer that the legislature likewise intended section 3-107(a) to apply only to primitive
       recreational and scenic areas where it listed recreational and scenic areas in the same sentence
       as “primitive” camping areas. In sum, consideration of section 3-107 as a whole supports a
       finding that section 3-107(a) was intended only to apply to roads providing access to primitive,
       undeveloped recreational areas.
¶ 41        Considering section 3-107(a) in pari materia with section 3-106 further supports our
       determination. Both sections 3-106 and 3-107(a) involve recreational property; yet, section
       3-106 provides immunity only for ordinary negligence, whereas section 3-107(a) provides
       absolute immunity. Noting this distinction, the Goodwin court found section 3-107 as a whole
       referred to unimproved property, which the local government did not maintain and which was
       “in its natural [state] with obvious hazards as a result of that natural condition.” Goodwin, 268
       Ill. App. 3d at 493. The court explained that the legislature extended absolute immunity to the
       property outlined in section 3-107(b) because of the burden a local governmental entity would

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       experience in having to maintain such property in a safe condition. Id. Further, the Goodwin
       court explained, requiring the government to conduct maintenance on this type of property
       “would defeat the very purpose of these types of recreational areas, that is, the enjoyment of
       activities in a truly natural setting.” Id.
¶ 42       We find the Goodwin court’s reasoning to be logical and persuasive. By immunizing a
       public entity from liability for injuries occurring on the property specified in section 3-107, the
       legislature has, in effect, relieved public entities from the burden of having to maintain such
       property. See Sites v. Cook County Forest Preserve District, 257 Ill. App. 3d 807, 811 (1994)
       (inferring the statutory intent of section 3-107 “is to relieve public entities from the duty to
       maintain such access roads, which may be unpaved and uneven.”). It makes sense that the
       legislature would relieve a public entity from maintaining access roads to primitive scenic and
       recreational areas because maintaining those roads would defeat the purpose of the primitive
       property, i.e., its enjoyment in its natural state. Goodwin, 268 Ill. App. 3d at 493.
¶ 43       In sum, we conclude section 3-107(a) of the Act applies only to access roads to primitive
       recreational and scenic areas and does not apply to the Lakefront Trail. Based on our finding,
       we need not consider plaintiff’s alternative arguments, i.e., that the Lakefront Trail was not a
       “road” and that it did not provide “access.” We also need not address plaintiff’s argument that
       a conflict exists between sections 3-106 and 3-107(a) of the Act given our finding that section
       3-107(a) of the Act does not apply.

¶ 44               B. Immunity for Willful and Wanton Conduct Under Section 3-106
¶ 45       Having determined that section 3-107(a) does not apply to the Lakefront Trail, we must
       now consider whether the Park District was entitled to summary judgment based on section
       3-106 of the Act, which provides immunity against negligent conduct but not willful and
       wanton conduct. 745 ILCS 10/3-106 (West 2012). Plaintiff argues the trial court erred by
       finding no genuine issue of material fact existed that the Park District engaged in willful and
       wanton conduct. He posits the Park District acted willfully and wantonly in its maintenance of
       the Lakefront Trail or, at the very least, a genuine issue of material fact exists as to whether the
       Park District was willful and wanton.
¶ 46       Summary judgment is proper where “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. “The purpose of summary judgment is not to try a question of fact, but to determine
       whether a genuine issue of material fact exists.” Illinois State Bar Ass’n Mutual Insurance Co.
       v. Law Office of Tuzzolino & Terpinas, 2015 IL 117096, ¶ 14. We review the trial court’s
       decision to grant summary judgment de novo. Bowman v. Chicago Park District, 2014 IL App
       (1st) 132122, ¶ 43.
¶ 47       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). “Whether a person is guilty of willful and wanton conduct is a question of fact for the
       jury and should rarely be ruled upon as a matter of law.” (Internal quotation marks omitted.)
       Robles v. City of Chicago, 2014 IL App (1st) 131599, ¶ 17. However, “a court may hold as a

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       matter of law that a public employee’s actions did not amount to willful and wanton conduct
       when no other contrary conclusion can be drawn.” (Internal quotation marks omitted.)
       Thurman v. Champaign Park District, 2011 IL App (4th) 101024, ¶ 10. In deciding whether a
       willful and wanton conduct charge should have been submitted to the jury, neither the trial
       court nor our court may resolve conflicts in the evidence or decide the weight to be given the
       evidence or the relative credibility of the witnesses. Robles, 2014 IL App (1st) 131599, ¶ 17.
¶ 48       Initially, we note, the Park District characterizes the “willful and wanton” standard as “a
       high standard of culpability” that approaches “the degree of blame associated with intentional
       harm.” Plaintiff challenges the Park District’s characterization. The parties’ dispute in this
       regard stems from the legislature’s 1998 amendment to section 1-210, in which it added the
       following language to the statute without modifying the definition of willful and wanton
       conduct: “[t]his definition shall apply in any case where a ‘willful and wanton’ exception is
       incorporated into any immunity under this Act.” Pub. Act 90-805, § 5 (eff. Dec. 2, 1998)
       (amending 745 ILCS 10/1-210).
¶ 49       Plaintiff argues the legislature’s amendment did not impose a heightened willful and
       wanton standard, citing to Murray v. Chicago Youth Center, 224 Ill. 2d 213 (2007), and Harris
       v. Thompson, 2012 IL 112525. However, the Park District insists that plaintiff’s reliance on
       Murray is misplaced because the Murray court expressly declined to review the legislative
       intent of the 1998 amendment. See Murray, 224 Ill. 2d at 242-43. The Park District cites to
       Thurman, in which the appellate court stated the legislature used “strong language” in defining
       willful and wanton conduct and found the statutory definition of willful and wanton applied “to
       the exclusion of inconsistent common-law definitions.” Thurman, 2011 IL App (4th) 101024,
       ¶ 13. The Park District also relies on hearing transcripts from the General Assembly pertaining
       to the 1998 amendment. Based on these transcripts and Thurman, the Park District argues the
       definition of “willful and wanton” in section 1-210 of the Act does impose a high standard of
       culpability under the law.
¶ 50       We need not resolve the dispute between the parties regarding the Park District’s
       characterization of the willful and wanton standard because, fundamentally, the parties agree
       that the definition governing plaintiff’s claim is the statutory definition set forth in section
       1-210 of the Act. In other words, the parties agree that whether the Park District was willful
       and wanton turns on whether the Park District acted with utter indifference to or conscious
       disregard for the safety of patrons. Accordingly, this is the definition we will utilize in
       determining the propriety of the court’s decision to grant summary judgment, and we need not
       determine whether the Park District’s characterization of this standard as a “high standard” is
       correct. See Barr v. Cunningham, 2016 IL App (1st) 150437, ¶ 16 (although the defendants
       challenged the plaintiff’s citation to a supreme court case, the plaintiff cited that case only for
       the proposition that willful and wanton conduct existed on a continuum; ultimately, the parties
       agreed that the overarching issue was whether the plaintiff “acted with conscious disregard for
       the safety of the others” (internal quotation marks omitted), and thus, both parties agreed the
       defendants’ actions should be measured against the Act’s definition of willful and wanton).
¶ 51       We turn then to whether the trial court properly granted summary judgment. Plaintiff
       argues the court erred because the evidence shows the Park District was willful and wanton or
       a genuine issue of fact exists as to whether it was willful and wanton. Plaintiff posits that after
       learning of the defect, the Park District did not repair it until July, even though it had the ability
       to conduct an emergency repair. Further, plaintiff observes, the Park District did not barricade

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       the gap or mark it with paint. The Park District responds that the facts in this case do not in any
       way show it was willful and wanton where, upon learning of the defect, it immediately
       engaged in efforts to repair the crack.
¶ 52       In Palmer v. Chicago Park District, 277 Ill. App. 3d 282, 284 (1995), the plaintiff alleged
       that he injured himself when his leg became caught in a large portion of wire mesh fence that
       had fallen in a playlot and had been lying on its side for three months. Id. The court found the
       plaintiff stated a cause of action for willful and wanton misconduct where he pled that the
       defendant knew or should have known about the fence and took “no corrective action to repair
       or warn about” it. Id. at 288-89.
¶ 53       On the other hand, in Lester v. Chicago Park District, 159 Ill. App. 3d 1054, 1055, 1060
       (1987), the court found the plaintiff failed to set forth a claim of willful and wanton conduct
       where the plaintiff alleged the Park District caused ruts and holes in a softball field and refilled
       them with improper materials. The court agreed with the Park District that the Park District’s
       rehabilitative acts of filling in the holes and ruts “indicated a concern for possible injuries” and
       did not amount to “utter indifference” or “conscious disregard” for the safety of patrons’ lives.
       Id. at 1059. The court explained that to equate the Park District’s actions of discovering the
       condition 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.
¶ 54       Here, there is no dispute that the Park District knew of the defect prior to plaintiff’s injury,
       although the parties dispute the exact date on which the Park District learned of the crack. Our
       review of the record shows the Park District became aware of the defect no earlier than May
       2013, although it may have learned of the defect later than May 2013. Arlow testified he could
       “[n]ot exactly” recall when he received the patron’s complaint regarding the defect but he
       knew it was during the spring. Arlow then testified there was no snow on the ground when he
       received the call and thus “[i]t had to be later than April.” Gernady testified that he received
       Arlow’s call regarding the complaint in the spring of 2013. When asked in what month,
       Gernady stated in the “time zone of June.” We note that plaintiff suggests the Park District also
       knew of the defect based on Gernady’s annual spring inspection; however, plaintiff has not
       cited to any portion of the record establishing that Gernady noticed the defect during his
       inspection or that the defect existed at that time.
¶ 55       Turning to the actions of the Park District after learning of the defect, we agree with
       plaintiff that whether the Park District was willful and wanton is an issue of fact. We note the
       Park District did take some action to repair the defect. After receiving the patron’s call, Arlow
       inspected the defect and contacted Gernady, who included it in the scope of repairs to be
       submitted for bid to the rapid response contractors. The defect was repaired through the rapid
       response process on July 10. On the other hand, however, Rejman testified the rapid response
       system is to be used only for jobs that do not present safety concerns, but the defect in this case
       was classified as an emergency—the sole 2013 Lakefront Trail repair to be classified as such.
       Further, the evidence showed the Park District had methods by which to expedite the repair
       process, such as immediately contacting a contractor or alerting the contractor that a repair is
       urgent. Arlow also testified that a defect less severe was repaired in 2014 by in-house laborers.
       Notably, the evidence also showed that while the rapid repair process was taking place, the
       Park District did not engage in any efforts to barricade, mark, or otherwise warn patrons of the
       defect. See Palmer, 277 Ill. App. 3d at 289 (finding the plaintiff alleged willful and wanton

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       conduct where the plaintiff alleged the defendant took no corrective action to repair or warn
       about the fence).
¶ 56       In light of all of the foregoing, it was inappropriate for the trial court to hold as a matter of
       law that the Park District was not willful and wanton. See Thurman, 2011 IL App (4th)
       101024, ¶ 10 (a court may hold as a matter of law that a public employee’s actions did not
       amount to willful and wanton conduct only where “no other contrary conclusion can be drawn”
       (internal quotation marks omitted)). Instead, whether the Park District’s actions amounted to
       willful and wanton misconduct is a question of fact. It is for the trier of fact to consider the
       efforts the Park District made to repair the defect and evaluate whether those efforts
       demonstrated utter indifference to or conscious disregard for patrons’ safety in light of the
       evidence that the Park District failed to warn patrons of the defect, barricade the defect, or
       expedite the repair process, despite the defect having been recognized as dangerous and in
       need of emergency repair. Accordingly, the trial court improperly granted summary judgment.
¶ 57       Plaintiff’s reliance on Lester does not convince us otherwise. The plaintiff in Lester alleged
       that he was injured because the Park District repaired a defect but did so improperly. See
       Lester, 159 Ill. App. 3d at 1055-56. By contrast, here, the plaintiff was injured because the Park
       District had not yet repaired the defect.
¶ 58       In sum, we conclude the trial court erred by granting summary judgment.

¶ 59                                   III. CONCLUSION
¶ 60      For the reasons stated, we reverse the trial court’s judgment and remand for further
       proceedings.

¶ 61       Reversed and remanded.




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