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Thursday, May 21, 2015

Case Against City for Injuries Sustained While Walking Dog Continues

An appellate court recently addressed the "recreational purposes" provision of the Tort Immunity Act in Fennerty v. City of Chicago, 2015 IL App (1st) 140679 (May 18, 2015).

Fennerty was injured after she tripped and fell over a metal electrical box in a grassy area while walking her dog one summer evening. The electrical box provided service to the nearby lights along the grassy area where she was walking. She first argued that the city carelessly and negligently (1) constructed and maintained the metal box so that it was a tripping hazard; (2) failed to maintain the surrounding grassy area; (3) failed to provide sufficient lighting; (4) failed to warn of a dangerous and defective condition; and, (5) failed to maintain the surrounding ground to ensure a level surface. She next argued that the city was willful and wanton because it had knowledge of the allegedly defective and dangerous conditions. 

The city filed a motion for summary judgment arguing that it was immune from liability because the area where Fennerty fell was "recreational" in nature. Section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) states that:

Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury. 745 ILCS 10/3-106. 

The court granted the city’s motion for summary judgment, and Fennerty appealed. 

The appellate court found there was conflicting testimony as to whether the tree-lined grassy area that is bordered by traffic lanes was used for recreational purposes to fall within section 3-106’s immunity. The court reasoned that the testimony showed that the grassy area could either be a median between the traffic lanes or a parkway and that because of the conflicting testimony, the court remanded the case back to the trial court to determine if the grassy area falls within public property that is intended or permitted to be used for recreational purposes. 

The appellate court did agree with the trial court's rejection of Fennerty's "willful and wanton" argument. Although the city’s conduct might be characterized as negligent, there was no support for Fennerty's claim that the city had actual or constructive knowledge of the allegedly dangerous and defective conditions. 

Post Authored by Christy Michaelson, Ancel Glink


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