                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                   Moore v. Chicago Park District, 2011 IL App (1st) 103325




Appellate Court            ROBERTA MINOR MOORE, the Special Administrator of the Estate of
Caption                    Sylvia Lee Moore, Plaintiff-Appellee, v. CHICAGO PARK DISTRICT,
                           Defendant-Appellant.



District & No.             First District, Second Division
                           Docket No. 1–10–3325


Filed                      June 28, 2011


Held                       A certified question as to whether an unnatural accumulation of snow and
(Note: This syllabus       ice constituted the “existence of a condition of public property” as that
constitutes no part of     phrase is used in the language of section 3–106 of the Tort Immunity Act,
the opinion of the court   which provides immunity from liability based on the “existence of a
but has been prepared      condition of any public property,” was answered in the negative by the
by the Reporter of         appellate court, since the actions of a park district employee in removing
Decisions for the          snow from a sidewalk onto a parking lot in a park was an unsafe activity
convenience of the         conducted on otherwise safe property, and in the action against the park
reader.)
                           district for the death of plaintiff’s decedent when she slipped and fell on
                           the accumulated ice and snow, the affirmative defense provided by
                           section 3–106 did not immunize the district from liability.


Decision Under             Appeal from the Circuit Court of Cook County, No. 07–L–000778; the
Review                     Hon. Randye A. Kogan, Judge, presiding.



Judgment                   Certified question answered.
Counsel on                 Chicago Park District Law Department, of Chicago (George P.
Appeal                     Smyrniotis, Nelson A. Brown, and Sarah H. Greene, of counsel), for
                           appellant.

                           Steinberg, Burtker & Grossman, Ltd., of Chicago (Richard J. Grossman,
                           of counsel), for appellee.


Panel                      JUSTICE HARRIS delivered the judgment of the court, with opinion.
                           Presiding Justice Cunningham concurred in the judgment and opinion.
                           Justice Connors dissented, with opinion



                                              OPINION

¶1          Here we are called upon to determine the following certified question pursuant to Illinois
        Supreme Court Rule 308 (eff. Feb. 26, 2010): “Does an unnatural accumulation of snow and
        ice constitute the ‘existence of a condition of any public property’ as this expression is used
        in Section 3–106 of the Tort Immunity Act?” We answer the certified question in the
        negative. In Illinois, ice and snow are temporary and not permanent conditions of real
        property. The snow and ice were moved by the park district and thus became an unnatural
        accumulation. In construing section 3–106 of the Local Governmental and Governmental
        Employees Tort Immunity Act (hereafter Act) (745 ILCS 10/3–106 (West 2008)) strictly
        against the Park District, we cannot say that the unnatural accumulation of snow and ice is
        a condition of public property within the meaning of the statute. Under our supreme court’s
        decision in McCuen v. Peoria Park District, 163 Ill. 2d 125, 129 (1994), “If otherwise safe
        property is misused so that it is no longer safe, but the property itself remains unchanged, any
        danger presented to the property is due to the misuse of the property and not to the condition
        of the property.”

¶2                                           JURISDICTION
¶3           The trial court certified the question now before this court on October 29, 2010. The park
        district filed a petition for leave to appeal, which this court granted on December 3, 2010.
        Accordingly, this court has jurisdiction pursuant to Rule 308 governing certified questions.
        Ill. S. Ct. R. 308 (eff. Feb. 26, 2010).

¶4                                      BACKGROUND
¶5          Sylvia Lee Moore and Glorious Williams regularly attended a senior water aerobics class
        offered by the Chicago park district (Park District) at Fernwood Park. On the morning of
        January 23, 2006, Ms. Moore and Ms. Williams drove together to Fernwood Park and Ms.

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     Moore parked the car in the parking lot. It had snowed several inches over the weekend, but
     the parking lot had been plowed and shoveled. A Park District employee had shoveled the
     snow on the sidewalks at Fernwood Park by pushing the snow to the curb. After completing
     the class, both women left the building and headed for Ms. Moore’s car in the parking lot.
     Three cars that were parked on or near the handicap parking space blocked easy access to the
     parking lot and there was snow and ice between the parked cars. Ms. Moore proceeded to
     step between two parked cars and, while stepping over the snow, she fell and broke her leg.
     After undergoing an operation to repair her broken leg, Ms. Moore suffered brain damage
     and subsequently died.
¶6       Plaintiff, Roberta Minor Moore, as special administrator, filed a two-count complaint
     alleging the Park District negligently created an unsafe unnatural accumulation of ice and
     snow on its property which caused injuries and the death of her decedent, Sylvia Lee Moore.
     Count I asserted a survivor’s action while count II alleged wrongful death. The Park District
     moved for summary judgment, which the trial court denied on March 18, 2010. On April 13,
     2010, the Park District filed a motion to certify two questions for interlocutory appeal
     pursuant to Rule 308, and supplemented its motion on May 10, 2010. On October 14, 2010,
     the trial court vacated its denial of the Park District’s motion for summary judgment and
     certified the question now before this court on October 29, 2010. The Park District filed an
     application for leave to appeal pursuant to Rule 308, which this court granted on December
     3, 2010.

¶7                                          ANALYSIS
¶8        The interpretation of a statute, such as the Tort Immunity Act in this case, is a question
     of law that we review de novo. Abruzzo v. City of Park Ridge, 231 Ill. 2d 324, 332 (2008).
     In reviewing a statue, we must ascertain and give effect to the intent of the legislature. Id.
     The intent of the legislature is best found by the plain and ordinary meaning of the statute’s
     language. Id. Statutory aids of construction will not be applied if the language of the statute
     is clear and unambiguous. Id.
¶9        The Tort Immunity Act does not create any new duties, only immunities and defenses.
     Bubb v. Springfield School District 186, 167 Ill. 2d 372, 378 (1995). The public entity bears
     the burden of proving whether it is immune from a claim under the Act. Van Meter v. Darien
     Park District, 207 Ill. 2d 359, 370 (2003). The Act is to be strictly construed against the
     public entity because it is in derogation of the common law. Aikens v. Morris, 145 Ill. 2d
     273, 278 (1991). Section 3–106 of the Act provides an affirmative defense a public entity
     may raise.
                  “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.” (Emphasis added). 745 ILCS 10/3–106 (West
              2008).


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¶ 10        If a public entity proves that the affirmative defense provided by section 3–106 applies,
       tort liability is precluded. Bubb, 167 Ill. 2d at 378. However, section 3–106 does not apply
       if an alleged liability is not based on the existence of a condition of public property. McCuen
       v. Peoria Park District, 163 Ill. 2d 125, 128 (1994).
¶ 11        Our supreme court, in McCuen v. Peoria Park District, addressed whether a public entity
       was immune from a claim of negligence under section 3–106 of the Act. McCuen, 163 Ill.
       2d at 128-29. In McCuen, a park district operated a mule-drawn hayrack ride in one of its
       parks. Id. at 126. As the hayrack riders were climbing onto the hayrack, an employee of the
       park district caused “the mule team to suddenly bolt and run off with the driverless hayrack.”
       Id. at 126-27. Several people were injured as they were thrown off the hayrack. Id. at 127.
       The court held that section 3–106 immunity did not apply, stating:
                     “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 to the property is due to the misuse of the property and not to the condition
                 of the property.” Id. at 129.
       In explaining the holding of McCuen, this court has stated that “[i]n effect, the supreme court
       [in McCuen] held that section 3–106 immunizes defendant for liability in negligence where
       the property itself is unsafe, but that section 3–106 does not immunize defendant for unsafe
       activities conducted upon otherwise safe property.” Nelson v. Northeast Illinois Regional
       Commuter R.R. Corp., 364 Ill. App. 3d 181, 190 (2006).
¶ 12        In Stein v. Chicago Park District, 323 Ill. App. 3d 574 (2001), this court addressed
       whether a park district was immune under section 3–106 of the Act due to a condition on
       public property. In Stein, the plaintiff tripped over a watering hose that had been placed
       across a sidewalk by two employees of the Chicago park district. Id. at 576. This court
       defined “condition” as “part of the property’s ‘mode or state of being’ [citation], i.e., part of
       the property itself.” Id. at 577 (quoting American Heritage Dictionary 290 (3d coll. ed.
       1993)). This court held that section 3–106 does not apply because the watering hose was not
       a “condition” under the Act and was not part of the property. Id. Specifically, the hose was
       not a condition under the Act because it “was moved from place to place within the park to
       water plants, then returned to storage at the end of the day” and because the hose “was not
       affixed to the property in such a way as to become a part of the property itself.” Id.
¶ 13        In construing the Act strictly against the Park District, we cannot say that the unnatural
       accumulation of snow and ice is a “condition” under section 3–106 of the Act. Aikens, 145
       Ill. 2d at 278; 745 ILCS 10/3–106 (West 2008). Plaintiff alleges the Park District employee
       moved the snow into a dangerous position. The snow on the sidewalk was pushed to the
       curb, creating piles, and snow removal from the parking lot caused cars to park in the
       handicapped zone in such a way as to block easy access to the parking lot. As in McCuen,
       the parking lot and sidewalk themselves are not dangerous. Here, the plaintiff alleges the


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       danger and injuries which resulted were caused by the negligent snow removal by a Park
       District employee. Since the Park District employee allegedly moved and stored snow
       negligently on property of the Park District that was otherwise in a normal state, section
       3–106 of the Act does not apply. See McCuen, 163 Ill. 2d at 129 (“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.”).
¶ 14        Additionally, the temporary nature of snow and ice warrants our conclusion that the
       unnatural accumulation of snow and ice is not a condition of the property under section
       3–106 of the Act. In Illinois, snow and ice conditions are not permanent. If left undisturbed,
       they melt and evaporate back into the atmosphere. They are not part of the realty or
       permanently affixed to it. As shown in this case, they are movable. If left in their natural
       state, no liability for slip and fall claims result. See Ziencina v. County of Cook, 188 Ill. 2d
       1, 13 (1999) (citing Ill. Rev. Stat. 1989, ch. 85, ¶ 3–105(a) (now codified at 745 ILCS
       10/3–105(a) (West 1998) (“It is clear that a local public entity has no duty to remove natural
       accumulations of ice and snow from public property.”))). Here, it is alleged that the Park
       District employee moved the snow into a dangerous position on the property. Certainly, the
       snow was not affixed to the property so as to become a part of the property itself. See Stein,
       323 Ill. App. 3d at 577. Therefore, the property itself was not unsafe, but rather the moving
       of the snow and ice was an unsafe activity on otherwise safe property. McCuen, 163 Ill. 2d
       at 129.
¶ 15        Defendant relies on this court’s decision in Callaghan v. Village of Clarendon Hills, 401
       Ill. App. 3d 287, 299-00 (2010), in which the Second District held that Stein is not “factually
       on point” when addressing whether an unnatural accumulation of ice and snow on a public
       sidewalk was a condition under section 3–106 of the Act. The Second District held that
       “although snow and ice are theoretically moveable, they are not of the same nature as
       something that would be moved around and stored.” Id. at 299. The Second District reasoned
       further “that reading Stein as holding that a condition under section 3–106 must be affixed
       to the property is unsupported by the language of section 3–106 and is in direct contravention
       of other case law.” Id.
¶ 16        To the extent that Callaghan conflicts with our holding in this case, we respectfully
       decline to follow it. See O’Casek v. Children’s Home & Aid Society of Illinois, 229 Ill. 2d
       421, 440 (2008) (under the doctrine of stare decisis, “the opinion of one district, division,
       or panel of the appellate court is not binding on other districts, divisions, or panels”). The
       notion that snow and ice are “theoretically moveable” belies reality. Every year it is the
       common experience of Illinois citizens that tons of snow and ice are routinely moved by man
       and machine within our state. As discussed above, Stein is factually on point because
       allegedly the employee moved the snow and ice, presumably with equipment appropriate for
       the task, and placed the piles in a way that led to plaintiff’s injuries. Stein, 323 Ill. App. 3d
       at 577.

¶ 17                                      CONCLUSION


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¶ 18       We answer the certified question before this court, whether “an unnatural accumulation
       of snow and ice constitute[s] the ‘existence of a condition of any public property’ as *** used
       in Section 3–106 of the Tort Immunity Act,” in the negative because the alleged activity of
       the Park District employee of moving the snow and ice onto the parking lot was an unsafe
       activity conducted upon otherwise safe property. The Park District cannot rely on the
       immunity provided by section 3–106 of the Act because the unnatural accumulation of snow
       and ice in this case does not constitute a condition of the property under the Act.
¶ 19       Certified question answered.

¶ 20       JUSTICE CONNORS, dissenting:
¶ 21       I respectfully dissent from the majority’s answer to the certified question. As explained
       below, I believe that the certified question should be answered in the affirmative.
¶ 22       As an initial matter, I do not believe that the characterization of the snow and ice as an
       “unnatural” accumulation has any bearing on the resolution of the certified question. This
       characterization is a reference to the common-law natural accumulation rule, which is
       codified in section 3–105(a) of the Tort Immunity Act (740 ILCS 10/3–105(a) (West 2008)).
       As our supreme court has explained, section 3–105 grants public entities absolute immunity
       from liability for injuries caused by natural accumulations of ice and snow, but the section
       offers only conditional immunity when the injury is caused by an unnatural accumulation.
       See generally Ziencina v. County of Cook, 188 Ill. 2d 1, 10-15 (1999) (discussing the
       interaction between the natural accumulation rule and section 3–105). In Ziencina, the
       supreme court noted that, under the immunity conferred by section 3–105, “a local public
       entity has no duty to remove natural accumulations of ice and snow from public property,”
       but “if a local public entity undertakes snow-removal operations, it must exercise due care
       in doing so.” Id. at 13-14.
¶ 23       Importantly, the supreme court based this holding on the fact that section 3–105 explicitly
       states that “[n]othing in this Section shall relieve the local public entity of the duty to
       exercise ordinary care in the maintenance of its property as set forth in Section 3–102.”
       (Internal quotation marks omitted.) Ziencina, 188 Ill. 2d at 9-10 (quoting Ill. Rev. Stat. 1989,
       ch. 85, ¶ 3–105(c) (now codified at 745 ILCS 10/3–105(c) (West 1990))). As the supreme
       court noted, “the immunity conferred by section 3–105(a) is made subject to the requirement
       found in sections 3–102 and 3–105(c) that local public entities exercise due care in the
       maintenance of their property. We believe that this latter requirement means that, if a local
       public entity undertakes snow-removal operations, it must exercise due care in doing so.”
       Ziencina, 188 Ill. 2d at 13.
¶ 24       Unlike section 3–105, however, there is nothing in section 3–106 indicating that the
       natural accumulation rule affects the immunity conferred under that section. Section 3–106
       reads, in its entirety:
                    “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

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                such local entity or public employee is guilty of willful and wanton conduct
                proximately causing such injury.” 745 ILCS 10/3–106 (West 2008).
       In contrast to section 3–105, there is no provision in section 3–106 that makes a public entity
       subject to the due-care requirements of section 3–102. Indeed, the sole exception to the
       immunity conferred under section 3–106 is for willful and wanton conduct. The specific
       provisions of section 3–106 explicitly immunize public entities from all liability for injuries
       sustained on recreational property except in the case of willful and wanton conduct. But see
       Belton v. Forest Preserve District, 407 Ill. App. 3d 409, 425 (2011) (stating that “Section
       3–106 was not intended to immunize the District from any and all tort claims,” and finding
       that the immunity did not apply to bar liability to a non-recreational driver who was injured
       by a tree branch that fell onto a roadway adjoining recreational property). Based on the plain
       text of the statute, I do not believe that section 3–106 incorporates the natural accumulation
       rule. Consequently, the fact that the snow and ice in this case allegedly accumulated
       unnaturally is irrelevant to the question of immunity under section 3–106.1
¶ 25       This means that the only question is whether snow and ice, regardless of how they
       accumulated, are a “condition” of the property. I agree with the majority that the controlling
       precedent on this point is the supreme court’s decision in McCuen v. Peoria Park District,
       163 Ill. 2d 125 (1994). Similarly to the present case, the supreme court considered a certified
       question in which the central issue was what constituted a “condition” on the property. In that
       case, the alleged condition was a mule-drawn hayrack. See id. at 126. The plaintiffs were
       injured when the hayrack driver negligently struck one of the mules, causing it to bolt and
       pitch the plaintiffs from the hayrack. See id. at 126-27. The supreme court held that section
       3–106 did not apply because the plaintiffs were not injured by a condition of the property.
       See id. at 129. The supreme court reasoned that “[p]laintiffs 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.”
       (Emphasis added.) Id.
¶ 26       As this court has summarized in other cases, “McCuen illustrates that section 3–106
       immunizes a defendant from liability in negligence where the property itself is unsafe, but
       that section 3–106 does not immunize the defendant for unsafe activities conducted upon
       otherwise safe property.” Vilardo v. Barrington Community School District 220, 406 Ill.
       App. 3d 713, 722 (2010); accord Nelson v. Northeast Illinois Regional Commuter R.R.
       Corp., 364 Ill. App. 3d 181, 190 (2006). However, the parties do not cite or analyze McCuen,
       and instead their arguments are generally limited to the applicability of either Stein v.

               1
                To my knowledge, no previous cases have construed section 3–106 to include the natural
       accumulation rule. The only case that mentions an unnatural accumulation of snow and ice in the
       context of this section is Callaghan v. Village of Clarendon Hills, 401 Ill. App. 3d 287 (2010).
       However, Callaghan declined to address this issue because the plaintiff in that case failed to develop
       it on appeal. See id. at 300.

                                                    -7-
       Chicago Park District, 323 Ill. App. 3d 574 (2001), or Callaghan v. Village of Clarendon
       Hills, 401 Ill. App. 3d 287 (2010). I do not find either of those cases to be well reasoned or
       helpful because neither case considers McCuen, which is the only supreme court precedent
       on the meaning of the word “condition” in section 3–106. Moreover, the concept of
       “movability” that those cases use to frame their analyses does not appear in McCuen. See
       Callaghan, 401 Ill. App. 3d at 299-300; Stein, 323 Ill. App. 3d at 577-78. As demonstrated
       by McCuen, in my opinion the relevant inquiry in determining whether something is a
       “condition” within the meaning of section 3–106 is whether a plaintiff’s injury was caused
       by the property itself or by an activity conducted on it. See McCuen, 163 Ill. 2d at 129; see
       also Vilardo, 406 Ill. App. 3d at 722; Nelson, 364 Ill. App. 3d at 190.
¶ 27       In this case, snow and ice are not an “activity” that is conducted on the property, but are
       rather passive characteristics of the property. Although plaintiff has alleged that she was
       injured by the actions of the Park District employee who allegedly placed the unsafe pile of
       snow and ice in the position that plaintiff encountered it, the employee’s action of shoveling
       did not harm plaintiff. Instead, what plaintiff has alleged in this case is that the parking lot
       was dangerous, defective, and negligently maintained because it was snowy and icy. Cf.
       McCuen, 163 Ill. 2d at 129 (observing that the plaintiffs in that case “do not claim that the
       hayrack itself was dangerous, defective or negligently maintained”). It was the snowy and
       icy condition of the parking lot that plaintiff has alleged caused her injury, rather than any
       activity that was conducted on the property.
¶ 28       Finally, I must specifically disagree with the majority’s assertion that section 3–106
       cannot apply in this case because “the Park District employee allegedly moved and stored
       snow negligently on property of the Park District that was otherwise in a normal state.”
       Supra ¶ 13; see also supra ¶ 14 (stating that “the property itself was not unsafe, but rather
       the moving of the snow and ice was an unsafe activity on otherwise safe property”).
       Negligence such as the kind that plaintiff argues caused her injury is the very type of liability
       that section 3–106 is intended to immunize public entities against. See Koltes v. St. Charles
       Park District, 293 Ill. App. 3d 171, 177 (1997) (“The legislative intent of section 3–106 is
       to immunize public entities from liability from simple negligence in areas where public
       activities, such as activities of a sportive nature, are permitted.”), cited in Belton, 407 Ill.
       App. 3d at 415; see also Sylvester v. Chicago Park District, 179 Ill. 2d 500, 503, 509-10
       (1997) (finding that immunity under section 3–106 can extend to injuries sustained on
       negligently maintained parking lots whose use is integral to the main recreational property).
¶ 29       In sum, it is my opinion that whether snow and ice accumulated naturally or unnaturally
       is not relevant to the question of whether snow and ice are a condition of the property within
       the meaning of section 3–106. Moreover, based on my reading of the supreme court’s
       reasoning in McCuen, it is my opinion that snow and ice are a condition under section 3–106
       because they are a characteristic of the property rather than an activity conducted on it. As
       a result, I would answer the certified question in the affirmative and hold that an unnatural
       accumulation of snow and ice constitutes a condition within the meaning of section 3–106.




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