M E M O R A N D U MTO: FROM: DATE: RE: Cole Gershwin- Immunity for Negligence on Recreational Property I. STATEMENT OF FACTS Our Client, Mr. Cole Gershwin, is considering suit against the Chicago school district for injuries sustained as a result of tripping in a pothole. Gershwin, a teacher at Washington Elementary School, alleges that on October 10, 2000 at 12: 20 pm, he was walking from the school to the teacher’s parking lot, and tripped in a pothole and fell.
The walkway where Gershwin fell is adjacent to a parking lot that was converted from a portion of the playground area. The walkway is used by teachers to travel to and from the parking lot. The walkway is marked with yellow stripes and is bordered on the southern edge by orange construction cones that the school is going to replace with additional fencing. There is a sign on the fence separating the parking lot from the walkway that reads: “Walkway for Teachers Only.” Students occasionally use the walkway as a “safe” zone for games of tag. II.
QUESTION PRESENTED Whether school property, classified as recreational and cursorily used by students during their recreation, immune from civil action under the Illinois Tort Immunity Act 3-106; when the school has the area sectioned off implying that it does not intend for the property to be used recreation ally. III. CONCLUSION No. The elements necessary to make the property recreational are not satisfied in this situation. The school district shows no intended use of the property for recreational purposes, nor does it show permitted use of the property for recreational purposes. Although the walkway is occasionally used by children for games of tag, this is incidental usage of the property, and thus SS 3-106 is inapplicable.
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Additionally, the primary purpose of the walkway is to facilitate travel to and from the parking lot, making the walkway non recreational in character. IV. DISCUSSION Immunity from liability is determined by examining the character of the property in question. In order to establish immunity, the school board must show intent for the property to be used for recreation, or that the property is permitted to be used for recreational purposes, where that use is not incidental. Factors that weigh on the court’s decision to identify property as recreational include the overall usefulness of the walkway to facilitate access to the recreational facility, the primary purpose of the walkway, and viewing the property in question as a “unified whole.” Consideration of these factors by the court should lead to a conclusion that the walkway is not recreational property, and thus not protected under SS 3-106. A.
Overall Usefulness of Property as a Unified Whole Structures that increase the overall usefulness of a facility are immune from liability claims under SS 3-106 of the Illinois Tort Immunity Act. In Sylvester v. Chicago Park District, The Illinois Supreme Court held that immunity under SS 3-106 may apply to structures or facilities that are not in themselves recreational, but “that increase the usefulness of public property intended or permitted to be used for recreational purposes.” Sylvester v. Chicago Park District, 689 N. E.
2 d 1119, 1124 (Ill. 1995).
The Sylvester court reasoned that although the walkway was not a part of Soldier Field, and not in itself recreational, Soldier Field is recreational and the walkway “increased the usefulness”, and is thus an extension of the recreational purpose. Id. at 1124. The walkway at Washington Elementary School is used to facilitate travel to and from the parking lot by teachers.
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The walkway does not serve as a means to gain access to the playground, and does not “increase the usefulness” of the playground. In contrast to the Sylvester case, the overall usefulness of the playground is not increased by the walkway because it is not used by the students to gain access to the playground. The school board could argue that the physical presence of the walkway on the playground permits usage as a means to gain access to the playground. This potential counterargument does not fall within the increased usefulness of the Sylvester court. The court should find that the walkway is not an “extension” of the recreational nature of the playground, and does not increase the overall usefulness of the playground. Therefore, immunity under SS 3-106 should not apply.
The proximity of the sidewalk to the playground does not make it a part of the recreational nature of the area. The sidewalk is to be viewed as an integral whole to determine if it falls within SS 3-106. In Batson v. Springfield School District, 690 N. E. 2 d 1077, 1081 (Ill.
App. 5 th Dist. 1998), the court ruled that “Although this sidewalk is near the playground and gymnasium, we nonetheless consider it a parcel of property separate from those two entities for purposes of section 3-106.” The court in Batson also held that SS 3-106 immunity may not be extended to non recreational structures unless that structure is within the recreational property, or a part of the whole. Id. at 1080.
Although the sidewalk is physically adjacent to the playground area, the placement of orange cones as a barrier separates the two structures and makes the playground and walkway two distinct bodies. Further separation of the two bodies is evident by the fact that the school board intended to use the cones as a temporary barrier until an additional fence line was constructed next year. The placement of the cones as a “temporary” fence demonstrates the intent of the school to segregate the walkway from the playground. The sign on the fence bordering the walkway reads: “Walkway for Teachers Only.” The sign places the walkway off limits to students and makes it a distinct entity from the playground. Counterarguments by the school board claiming that the walkway was physically attached to the playground, and thus immune, should not be considered by the court due to the markings and cone placement. The theory that the walkway is a part if the “unified whole” of the recreational property should not apply when the overall layout of the structure is taken into account, and SS 3-106 should not apply.
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B. Intended or Permitted Usage The primary purpose of the property must be taken into account when determining the intended or permitted purpose of the walkway. In Bubb v. Springfield School District, 657 N. E.
2 d 887, 892 (Ill. 1995), the court held that “Immunity depends on the character of the property in question, i. e. , whether the property was intended or permitted to be used for recreational purposes.” Public property may have multiple uses; however, the intended purpose is what classifies the property as recreational.
The Bubb court held that the painting of the four-square playing area was a demonstration of the intent of the school district to use the sidewalk as a recreational area. Bubb, 657 N. E. 2 d at 893. The walkway at Washington Elementary’s primary purpose is to facilitate travel to and from the parking lot.
The walkway is striped, the stripes are not intended to serve as a play area, but are used to identify the area as off limits. The markings on the walkway demonstrate the schools intent for the walkway not to be used for recreation, but to serve as access from the parking lot to the school. The school district allowed children to use the striped area that separated the walkway as a safety area when playing games of tag, but this is not the intended purpose of the walkway. The school district demonstrates no secondary intent.
Since the primary purpose of the walkway is a means of travel to and from the parking lot, SS 3-106 immunity should not apply. C. Incidental Usage of Property Incidental usage of property for recreation does not make the property immune under SS 3-106. In Ozuk v.
River Grove Board of Education, the court held that public property may have more then one intended use, but in order for immunity to apply under SS 3-106, the recreational use has to be more than incidental. Ozuk v. River Grove Bd. of Educ. , 666 N.
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E. 2 d 687, 691 (Ill. App. 1 st Dist. 1996).
The Illinois Supreme court held that immunity under SS 3-106 does not apply when the use of the property as recreational is incidental and not the primary purpose of the property.
Wallace v. Metro. Pier and Exposition Auth. , 707 N. E. 2 d 140, 143 (Ill.
App. 1 st Dist. 1998).
The walkway in question is occasionally used by students as a “safe zone” for games of tag.
The school district may argue that this shows its recreational character, however, this is incidental usage of the property. The school district shows no active encouragement of the use of the walkway as an extension of the playground. Although it may not have explicitly forbid the students from playing there, the primary purpose of the walkway is to facilitate travel to and from the parking lot, and any additional usage by the students is incidental to this purpose. Therefore, incidental usage of the walkway by the children does not make it recreational in nature, and the property should not be protected under SS 3-106.
