Editor's Note: Forthcoming issues of Illinois Parks & Recreation will contain a column on law related topics affecting the field. Dr. Ted Flickinger, Managing Editor of IPR, contacted attorneys Jim Kozlowski; Peter Murphy, Director of Governmental Services for the Illinois Association of Park Districts; and Harris Fawell. IAPD General Counsel, to submit articles for publication in the IPR magazine. Mr. Kozlowski writes a similar column which appears in the National Recreation and Park Association Parks & Recreation magazine.

This column will briefly describe recently reported court decisions, particularly Illinois cases. Specifically, the first case identified below relates to the theme of this issue of IPR magazine on playgrounds.

Finally, it is our intent to stimulate a question/answer format on current law related topics in parks and recreation. Inquiries to be addressed in the column or suggestions regarding its content should be identified as such and forwarded to the IAPD offices at 217 East Monroe Street, Springfield, IL 62701.

RECREATION LAW UPDATE

By James C. Kozlowski, J.D.

Immunity Provision Bars Recovery In Playground Injury Suit

In the case of Jackson v. Board of Education of City of Chicago, 109 Ill. App. 3d 716, 441 N.E.2d 120 (1982), an Illinois appeals court applied section 3-106 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act (Ill Rev. Stat. 1979, ch. 85, par. 3-106) to bar recovery for injuries sustained on a school playground. This statute provides:

"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 wilful and wanton negligence proximately causing such injury."

The child in this case had fallen from a playground swing owned and operated by the school board. The child's mother alleged that the boy's injuries were caused by the negligence of the school board. Specifically, the plaintiff alleged negligence in: failing to supervise the playground properly; failing to maintain the swings adequately; and failing to provide and maintain adequate mats for the protection of children falling from the swings.

Since the plaintiff did not allege any wilful or wanton conduct on the part of the school board, the appeals court in this instance found section 3-106 immunity applicable and affirmed the dismissal of plaintiff's suit. Citing Beckus v. Chicago Board of Education, 78 Ill. App. 3d 558, 397 N.E.2d 175 (1979), the court found "application of section 3-106 here is directly in line with its purpose which is to encourage the development and maintenance of public parks, playgrounds and similar recreation areas." This purpose is achieved by conferring immunity on public entities and employees for liability attributable to negligence "based on the condition of property used as a playground."

Plaintiff also argued that recovery should be granted based upon the attractive nuisance theory. Generally, landowners have no affirmative duty toward trespassers to alleviate or provide a warning regarding hazards on the premises. The attractive nuisance theory, however, provides an exception to this general rule for child trespassers. Citing Kahn v. James Burton Company, 5 Ill. 2d 614, 126 N.E.2d 836 (1955), the court noted this exception occurs in instances "where a child, whose presence on the land is foreseeable, is injured due to a condition on the property which is hazardous by reason of the child's inability to appreciate the risk involved." In her complaint, the plaintiff had applied this principle alleging that a condition on the playground, defective swings, caused a foreseeable injury based upon her child's inability to appreciate the risk involved.

The court rejected plaintiff's attractive nuisance argument because the child in this case was not a trespasser on the playground premises. "The present case is not concerned with the defendant's duty to an uninvited child. Indeed the foreseeability of the child's presence on the public playground is obvious and not an issue in this case." As a result, the attractive nuisance doctrine was not applicable and, according to the court, "in no way negates defendant's immunity from liability for the child's injuries pursuant to section 3-106." The appeals court, therefore, affirmed the judgment of the trial court granting the board's motion to dismiss the suit.

Captain Video Added To Pinball Wizard Ban In Des Plaines

In the case of Rothner v. City of Des Plaines. 554 F. Supp. 465 (1981), the federal district court for the northern district of Illinois upheld the constitutionality of a municipal ordinance prohibiting electronic games and automatic amusement devices in all but liquor establishments. The challenged ordinance also prohibited persons under 21 from operating such games or devices without a parent or guardian present.

Plaintiff Rothner is in the business of leasing such games and had maintained four electronic games in two local grocery stores. In his complaint, the plaintiff alleged a civil rights violation under Title 42, section 1983 of the U.S. Code (42 U.S.C. § 1983). In pertinent part, this statute prohibits an individual or governmental entity under color of local law from depriving another of rights guaranteed by the U.S. Constitution. The challenged municipal ordinance had been enacted pursuant to Illinois home rule powers which provide in part:

"[A] home rule unit may exercise any power and perform any function pertaining to its government and affairs, including but not limited to, the power to regulate for the protection of the public health, safety, morals

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and welfare." In addition, Illinois law authorizes municipalities to "license, tax, regulate, or prohibit pinball, or bowling alleys, billiard, bagatelle, pigeonhole, pool, or any other tables or implements kept for a similar purpose in any place of public resort."

The court found that Des Plaines clearly had the power to enact the challenged ordinance under the authorities cited above. According to the court, the public welfare purpose of the restriction on such games was "clearly for the protection of minors." As a result, the court determined that it was "well within the home rule and statutory powers of the City of Des Plaines to protect minors from coin-operated games."

In the court's view, Des Plaines could have banned all such games entirely. Instead, Des Plaines "chose to ban only pinball, and prohibited unaccompanied minors from access to such games."The court referred to an earlier decision, Aladdin's Castle v. VIllage of North Riverside, 66 Ill App.3d 542, 383 N.E.2d 1316(1978), which similarly upheld an ordinance not unlike that challenged by Rothner. Since the ordinance was found to be constitutional on its face, the case was dismissed and summary judgment granted in favor of Des Plaines.

For additional information on the above case reviews the reader may contact; James C. Kozlowski, J.D., Recreation & Parks Legal Research Service, P.O. Box 10321, Arlington, Virginia 22210.

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