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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