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Park District Immunity

by Byron Cudmore B.S., University of Illinois, 1974;
Candidate Juris Doctor, Southern Illinois University School of Law, 1977.

A legal tug of war between the Illinois Judiciary and the Illinois General Assembly has been going on behind the Park District scene for over 30 years. This legal battle has had a tremendous effect upon Park District liability in personal injury (tort) cases. A review of personal injury litigation vis-a-vis Illinois Park Districts will bring everyone up to date on this crucial legal topic.

The backbone of this legal tug of war is the doctrine of governmental or sovereign immunity. From its birth in England in 17781 to its adoption in Illinois in 18702 its avowed purpose has been the protection of public funds from personal injury judgments, under the theory that "the King can do no wrong." The legislature and the judiciary have struggled with this doctrine; modifying, eliminating and finally reinstating it during their legal tug of war. A battle which is still continuing today.

In 18933, the year that the Illinois General Assembly authorized the formation of Park Districts, they were born as quasi municipal corporations, created solely to execute state policies. As quasi municipal corporations, Park Districts were completely immune under the doctrine of governmental immunity from personal injury liability.4 Other governmental entities, municipal corporations, which carried out both state and local policies were liable for personal injury judgments only when the municipal corporation was carrying out a local5 function. The municipal corporation, like the quasi municipal corporation enjoyed complete immunity when exercising purely state6 functions.

Under this sophisticated application of governmental immunity a child injured on a playground due to the negligence of a Park District (quasi municipal corporation) had no remedy at law. While the same child, if injured on a playground due to the negligence of a City Park Department (municipal corporation) could bring suit for damages, since the municipal corporation was exercising a local function, and thus possessed no immunity.

The disparity in treatment to injured plaintiffs,7, the unequal grants of immunity given to quasi municipal corporations, plus the fact that municipal corporations could never be sure when they would be deemed to be exercising a local function and thus liable for their negligence, caused most local public entities to purchase liability insurance.

When municipal corporations purchased liability insurance they opened themselves up to judicial scrutiny. In the case of Thomas v. Broadlands Community Consolidated School District,8 the court reasoned that once the school district protects its public funds by purchasing insurance, all reasons for granting governmental immunity are gone, and held that the injured plaintiff could recover up to the limits of the insurance policy if negligence was proven. This same reasoning was applied to a Park District which purchased liability insurance in the case of Lynwood v. Decatur Park District.9

This gradual diminution of governmental immunity was completed in the landmark case of Molitor v. Kaneland Community Unit District No. 302.10 Herein, the Illinois Supreme Court abolished governmental immunity for school districts. The court indicated that the reason for governmental immunity; protection of public funds under the theory that the King can do no wrong, had been supplanted through the availability of modern insurance. This case foreshadowed the eventual elimination of governmental immunity for all local governmental entities, including Park Districts.

The Molitor rule was quickly applied to eliminate Park District governmental immunity in the case of List v. O'Connor11 (Rockford Park District). The court reasoned that due to the voluntary nature of their functions, even a stronger case existed for negating Park District governmental immunity.

In response to the judicial elimination of governmental immunity, the Illinois General Assembly enacted a specific statute which regranted complete immunity for personal injuries to Park Districts.12 However, this grant of governmental immunity by the General Assembly was short lived. In Harvey v. Clyde Park District13 the Illinois Supreme Court ruled that the Park District immunity statute14 was unconstitutional as special legislation15 in violation of Section 22, Article IV of the Illinois State Constitution of 1870.

The effect of this see-saw battle was the total elimination of governmental immunity in the State of Illinois.

1. Russel v. Men of Devon, 2 T.R. 667, 100 Eng. Rep. 359 (1788).
2. Town of Waltham v. Kemper, 55 ILL. 346 (1870).
3. Pleasure Driveway and Park Districts. ILL. Laws 1893 p. 153. Submerged Park Districts, ILL. Laws 1895 p. 272. Township Park Districts, ILL. Laws 1911 p. 454. General Park Districts, ILL.Laws 1947 p.1292.
4. Illinois Institute of Continuing Legal Education, Illinois Municipal Law, Section 17-2, at p. 17-4, (1974).
5. "(W)hen the (local public entity) performs a service which might as well be provided by a private corporation. . . ." W. Prosser, Handbook of the Law of Torts, 980 (4th ed. 1971).
6. "Certain functions and activities which can only be performed adequately by the government. . . ." W. Prosser, Handbook of the Law of Torts, 979 (4th ed. 1971).
7. Harvey v. Clyde Park District, 32 ILL. 2d 60, 67 (1965).
8. 348 ILL. App. 567 (1952).
9. 26 ILL. App. 2d 431 (1960).
10. 18 ILL. 2d 11, 163 N.E. 2d 89 (1959), cert. denied 362 U.S. 968 (1960).
11. 19 ILL. 2d 337(1960).
12. ILL.Rev.Stat.Ch. 105, Sections 12.1-1 and 491 (1959).
13. 32 ILL. 2d 50(1965).
14. ILL. Rev. Stat. Ch. 105, Sections 12.1-1 and 491 (1959).
15. "One relating to particular persons or things; one made for individual cases or for particular places or districts; one operating upon a selected class. . . ." BLACK'S LAW DICTIONARY 15 70 (4th ed. 1968).

Illinois Parks and Recreation 16 November/December, 1976

Thus, Park Districts were placed in the legal status of an Individual16 with resultant liability for its negligence, plus liability for the negligent acts of its employees and agents under the doctrine of respondent superior.17 This set the stage for an influx of personal injury suits and the absolute need for liability insurance to protect the public funds.

The Illinois General Assembly reacted to the Harvey18 decision and enacted the Local Governmental and Governmental Employees Tort Immunity Act,19 commonly referred to as the Tort Immunity Act. Herein, the General Assembly strongly indicated its desire to re-establish governmental immunity for local governmental entities20 in the State of Illinois.21

Before examining the Tort Immunity Act as it relates to Park Districts some preliminary comments are necessary. Park Districts should be aware that unless immunity is found specifically in the Tort Immunity Act, liability exists, and that "the purpose of the Tort Immunity Act is to catalogue the exceptions to the general principle (Molitor absolute liability) which in some cases are extensive enough to have swallowed the rule."22 The Tort Immunity Act grants immunity only from suits for injury23 and does not abrogate liability based on contract, operation as a common carrier or liability under workmen's compensation law.24 It's important to remember that the Tort Immunity Act specifically grants to local governmental entities covered under the Act, all the defenses available to a private person.25

Specific sections of the Tort Immunity Act grant immunity directly to the Park District, as a local governmental entity, while other sections only grant immunity to employees26 of the Park District while the employees are acting within the scope of their employment. If an employee is immune due to a specific section of the Tort Immunity Act, Section 2-109 operates to extend that grant of immunity to the Park District.

A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable. (Section 2-109.) Therefore, when an employee possesses an immunity, the employer, the Park District, also possesses immunity from suit.27 However, if the employee is liable, the Park District is also liable under the doctrine of respondent superior,28 unless the Park District can raise a valid defense.

Park Districts and their employees are both expressly granted immunity from suits for injury29 caused by any of the following acts or omissions:

Park District Section

Employee Section

1. Adoption or failure to adopt enactment or law. .........



2. Issuance or refusal to issue, deny or suspend any permit or license. .................



3. Oral promises and/or misrepresentations. .........



4. Inspection or the failure to inspect non-public property....



Park District Section

Employee Section

5. Adoption or the failure to adopt any plan or design of construction where the plan or design has been approved by the Park District Board, unless the plan or design has created a condition not reasonably safe..



6. Weather conditions effects upon streets, sidewalks or other public ways, where such conditions are temporary in nature. .......



7. Condition of any public property30 intended or permitted to be used as a park, playground or open area for recreational purposes, unless such condition is due to willful and wanton negligence.31 ...



8. Condition of any access road which provides access to any recreational or scenic area, so long as the road is not a city, county, state or federal street or highway. .............



9. Failure to supervise an activity on, or the use of any public property, except swimming facilities where liability exists for the negligent failure to provide supervision during posted hours.............



Continued on Page 24

16. Beccue v. Rockford Park District, 94 ILL. App. 2d 179 (1968).
17. "Let the master answer. This maxim means that a master (employer) is liable for the wrongful acts of his servant (employee)...." BLACK'S LAW DICTIONARY 1475 (4th ed. 1968).
18. 32 ILL. 2d. 60 (1965).
19. ILL. Rev. Stat.Ch.85, Sections 101-1-9. 107(1965).
20. ILL. Rev. Stat. Ch. 85, Section 1-206 (1965). ' "Local public entity" includes a county, township, municipality, municipal corporation, school district, school board, forest preserve district (and) park district....'
21. "(T)he General Assembly has the right to enact legislation establishing total immunity or partial immunity if it does so within the framework of our Constitution." Mills v. County of Winnebago, 104 ILL. App. 2d 366, 372 (1969).
22. 55 ILL. B.J. 28, 30 (1966).
23. ILL. Rev. Stat. Ch. 84, Section 1-204 (1965). "Injury means death, injury to person, or damage to or loss of property."
24. ILL. Rev. Stat. Ch. 84, Section 2-101 (1965).
25. ILL. Rev. Stat. Ch. 84, Section 2-110 (1965).
26. ILL. Rev. Stat. Ch. 84, Sections 2-201-2-212(1965).
27. Thiele v. Kennedy, 18 ILL. App. 3d 465 (1974).
28. See note 23 supra.
29. ILL. Rev. Stat. Ch. 84, Section 1-204 (1965).
30. ILL. Rev. Stat. Ch. 84, Section 3-101 (1965). "(P)ublic property means any real or personal property owned or leased by a local public entity...."
31. "(I)njury must have been knowingly and intentionally committed, or committed under circumstances envincing reckless disregard of safety of person injured." BLACK'S LAW DICTIONARY 1774 (4th ed. 1968).

Illinois Parks and Recreation 17 November/December, 1976


Continued from Page 17

Park District employees are expressly granted immunity from suit for injury caused by any of the following acts or omissions: Remember that Section 2-109 operates to extend these immunities to employer Park Districts.

Employee Section

1. The determination of policy or while in the exercise of discretion. ...............


2. The execution or enforcement of any law except for willful and wanton negligence.32


3. Acts under unconstitutional, invalid or inapplicable enactments. .............


4. Acts of another person. ..............


5. Instituting or prosecuting any judicial or administrative proceeding.............


6. Entry upon any property where expressly or impliedly authorized by law. .....


Park Districts alone possess immunity from suit for injury caused by the following acts or omissions:

Park District Section

1. Actions of its employees which is libelous or slanderous. ....................


2. Care and maintenance of both real and personal property when the Park District has exercised ordinary care in its maintenance, and the Park District did not have either actual or constructive notice of the unsafe condition. .......................


The listings just given are not exhaustive of the immunities granted by the Tort Immunity Act,33 however, the lists are complete as to immunities most frequently applicable to Park Districts.

Section 3-106 "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 as a park, playground or open area for recreational purposes unless such local entity or public employee is guilty of willful and wanton negligence proximately causing such injury;" which deals specifically with immunities granted for property used for park, playground or recreational purposes obviously is of great interest to Park Districts. However, Section 3-106 has been the source of a good deal of litigation. Injured plaintiffs have argued that Section 3-106 is unconstitutional as special legislation in violation of Section 22, Article IV of the Illinois State Constitution of 1870. Plaintiffs argue that Section 3-106 provides immunity only for Park Districts and therefore is unconstitutional, just as the Park District immunity statute of 195934 was held unconstitutional in Harvey v. Clyde Park District.35 The judiciary rejected this argument in the case of Maloney v. Elmhurst Park District.36 Herein, the court deferred to the General Assembly and held that the grant of immunity to park and recreation property applied equally to all local governmental entities which provide property for recreational purposes. The court went on to say that it was well within the legislative sphere to use Section 3-106 to encourage the development of park and recreation property. The court in Sullivan v. Midlothian Park District37 again rejected any constitutional attack upon Section 3-106, and affirmed the reasoning espoused in Maloney.

Article VII-Tort Liability Under Agreements Between Public Entities, provides a legal vehicle for agreement as to how liability will be apportioned when Park Districts link-up with other governmental agencies through the medium of intergovernmental cooperation.38 Section 7-101 provides that when Park Districts are permitted by law to transfer any function to, or perform any function with, or for, any other governmental entity or employee, the governmental entities may allocate liability between themselves. The agreement may take the form of a contract, resolution, lease or ordinance, and it may provide for contribution or indemnification.39

Article VIIIóLimitations, Notice, provides special procedural safeguards for Park Districts and in certain cases Park District employees.40 Section 8-102 provides that an injured plaintiff must serve notice41 of a potential claim within one year from the date of injury42 with the secretary of the Park District, otherwise Section 8-103 operates to forever bar the plaintiff from bringing suit. Section 8-101 grants Park Districts a two year statute of limitations.43 These procedural sections give Park Districts additional protection and operate as absolute defenses against unwary plaintiffs. Park Districts, along with other governmental entities are given these additional safeguards so that possible liabilities can be anticipated and budget and tax considerations can be made in advance. governmental entities are given these additional safeguards so that possible liabilities can be anticipated and budget and tax57 considerations can be made in advance.

Article IX-Payment ot Claims Judgment, authorized Park Districts to levy a tax45 which can be used to pay judgments46 rendered against the Park District of any loss or liability which may be imposed under the Tort Immunity Act. The tax may also be levied to pay for liability insurance procured pursuant to Section 9-103(a).

Under this insurance section, liability insurance may be purchased to cover any liabilities imposed upon the Park District under the Tort Immunity Act. However, pursuant to Section 9-103(b), once insurance is purchased the insurance company must waive the right to assert any of the defenses or immunities available to the Park District under the Tort Immunity Act. In other words, a Park District which does not purchase liability insurance possesses all of the immunities granted under the Tort Immunity Act, while a Park District that purchases liability insurance is

32. Id.
33. See, ILL. Rev. Stat. Ch. 84, Articles IV, V and VI (1965).
34. ILL. Rev. Stat. Ch. 105,Sections 12.1-1 and 491 (1959).
35. 32 ILL. 2d 60 (1965).
36. 47 ILL. 2d 367 (1970).
37. 51 ILL. 2d 274 (1972).
38. ILL. CONSTITUTION, Article VII, Section 10(1970).
39. ILL. Rev. Stat. Ch. 84, Section 7-102 (1965).
40. ILL. Rev. Stat. Ch. 84, Section 8-101 (1965). Does not apply to actions brought directly against an employee of a local public entity.
41. Notice pursuant to Section 8-102 must specifically state the name and residence of the person injured, the date and approximate hour of injury, the location of the injury, the general nature of the accident and the names and addresses of any attending physicians and hospitals. The notice must be signed served within 1 year from date of injury.
42. ILL. Rev. Stat. Ch. 84, Section 1-204 (1965).
43. "A statute prescribing limitations to the right of action ... declaring that one suit shall be maintained ... unless brought within a specified period after the right has accrued." BLACK'S LAW DICTIONARY 1076 (4th ed. 1968).
44. ILL. Rev. Stat. Ch. 84, Section 9-107 (1965).
45. ILL. Rev. Stat. Ch. 84, Section 9-107 (1965).
46. ILL. Rev. Stat. Ch. 84, Sections 9-104-9-105 (1965).

Illinois Parks and Recreation 24 November/December, 1976

liable for any injury covered under the insurance policy. Thus a Park District can decide for itself whether or not it will be liable simply by deciding whether or not it will purchase liability insurance. Again, it should be stressed that Park Districts are not required to purchase liability insurance.

Herein, the Tort Immunity Act has been involved in the greatest amount of recent litigation. The big question for plaintiffs, Park District administrators, attorneys and judges has been exactly what defenses and immunities are waived by the purchase of insurance. To date, the following sections have been held to be waived through the purchase of insurance:

1. 8-102 Notice provision.47
2. 3-102 Notice provision of unsafe condition of public property.48
3. 3-108 Failure to supervise an activity on, or the use of public property.49
4. 3-106 Condition of park, playground or recreational area.50
5. 2-202 Act or omission in the execution or enforcement of any law.51
6. 8-101 Two year statute of limitations.52
7. 8-103 Effect of failure to serve notice.53

Exactly what other defenses and immunities will be deemed as waived due to the purchase of liability insurance is simply a matter of conjecture, but nonetheless, legal writers across the state have examined Section 9-103(b) long and hard and have made the following recommendations:

1. Amend Section 9-103 by eliminating sub-section (b).54
2. Repeal sub-section (b) and require mandatory liability insurance.55
3. Read Section 9-103(b) as waiving all defenses and immunities.56
4. Eliminate governmental immunity.57
5. Repeal the Tort Immunity Act.58

To date these recommendations have not been implemented, but they have been received as possible alternatives for this litigious problem. It, therefore, behooves all Park District attorneys to keep abreast of the waiver issue presented by Section 9-103(b), so that all Park Districts are aware of the legal implications of purchasing liability insurance.

Park District governmental immunity has now been examined full circle. Theories, important court cases, legislation, rationale, and judicial, legislative and legal thinking on Park District governmental immunity has been exposed and examined. The specific grants of immunity given Park Districts and their employees, along with the legal abnormalities and legal consequences of the Local Governmental and Governmental Employees Tort Immunity Act have been listed and explained; in the hope that Park District Administrators across the State of Illinois will be exposed to, and shown the importance of the legal tug of war over governmental immunity.

47. Housewright v. City of LaHarpe, 51 ILL. 2d 357 (1972).
48. Gowler v. City of Mt. Vemon, 7 ILL. App. 3d 466 (1972).
49. Id.
50. Sullivan v. Midlothian Park District, supra.
51. Putnam Farm Bureau v. Sharer, 12 ILL. App. 3d 683 (1973).
52. Fanio v. John W. Breslin Co., 51 ILL. 2d 366 (1972).
53. Crowe v. Doyle, 6 ILL. App. 3d 1098 (1972).
54. 50 Chi.-Kent Rev. 137, 143 (1973).
55. Id.
56. 62 ILL. B.J. 496, 498 (1974).
57. 61 ILL. B.J. 322,326(1973).
58. 50 Chi.-Kent Rev. 137, 143 (1973).

Illinois Parks and Recreation 25 November/December, 1976

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