Trails, tribulations, and tort immunity: Then and now

By Patrick M. Kinnally

February 2018

Sometime ago I authored an article that addressed tort immunity statutes as applied to my client, the Kane County Forest Preserve District ("Happy Trails: Immunity from wilful and wanton conduct for local public entities" ISBA, General Practice, (2004) Vol. 32, No.7). The article was based on the results of jury trials tried at that time. The precept of willful and wanton conduct was in play. Lawyers and judges wanted to understand what that meant to a jury. (See, Burke v. 12 Rothschild's Liquor Mart(1992) 148 Ill. 2d 429, Ziarko v. Sao Line R.R. Co. (1994) 161 ///. 2d 267, and Poole v. City of Rolling Meadows 167 Ill. 2d. 41 (1995). 

Two of the cases were reported. The first addressed whether a forest preserve district was liable for an injury where its duty was based on the existence of a condition of public property intended to be used for recreational purposes. In such an instance, the public entity is only responsible if its behavior amounts to willful and wanton conduct. (745 ILCS 10/3-106 (A.D. v. Kane County Forest Prese1ve District(313 Ill. App. 3d 919) (2000) [A.D.].

The jury instruction on what constitutes willful and wanton conduct says: 

*** When I use the expression "willful and wanton conduct" I mean a course of action which
[shows actual or deliberate intention to harm] [or which, if not intentional,] [shows an utter indifference to or conscious disregard for (a person's own safety) (and) (the safety of others, or their property)]*** See, Illinois Pattem)wy Instructions- Civil, (2017-2018) 14.01. This tracts the statutory definition (745 ILCS 10/1-210).

In A.D., a minor, while playing with friends at the Oakhurst Forest Preserve in Aurora, ran into a honey locust tree, which had thorns, one of which impaled his chest in the vicinity of his heart. He survived. The jury returned a verdict for the plaintiff which the Appellate Court reversed. It found as a matter of law the District's conduct did not amount to willful and wanton conduct. Principally, the court relied upon the lack of knowledge by any Forest Preserve personnel that a prior injury had occurred in connection with the tree, or any prior complaint. 

The second opinion was Mull v. Kane County Forest Preserve District, (337 !II.App.3d 589 [2003] {Mui⯑. In Mui/the court was asked to interpret the following statute "***Neither a local public entity nor a public employee is liable for an injury caused by a condition of (A) Any road which provides access to fishing, hunting or primitive camping, recreational or scenic areas and which is not a (1) city town, or village street, (2) county, state, or federal highway, or (3) a township or other road district highway. (8) Any hiking, riding fishing or hunting trail*** ." 745 ILCS 10/3-107.

Janet Mull injured herself, fairly severely, when the bicycle she was riding encountered several ruts on the Great Western Trail in Kane County causing her fall and injury. The trail, at intervals, was crushed limestone. The Forest Preserve allegedly owned and maintained the trail. Evidence was introduced that one Forest Preserve official knew of the condition of the trail prior to Janet's accident. Others did not. A jury verdict for the plaintiff was reversed on appeal. The court concluded the Forest Preserve enjoyed absolute immunity since The Great Western Trail was a "riding" trail. The Appellate Court held the Kane County Forest Preserve was entitled to judgment notwithstanding the verdict as a matter of law. (See also, Foust v. Forest Preserve of Cook County2016 IL App (1st) 160873).

Now, we have two opinions from the Illinois Supreme Court (Corbett v. County ofLake (2017 IL 121536))
(Corbetf) and Cohen v. Chicago Park District(2017 IL 121800) (Cohen), which provide today's perception of the judiciary's interpretation of the Local Government Tort Immunity Act 745 ILCS 10-1-101, et seq. (2012)
(The Act) as it applies to trails. Neither were jury trials.

In August 2013, Kathy Corbett was riding her bicycle with others on the Skokie Valley Bike Trail. This right of way was owned by Commonwealth Edison, and Lake County was its tenant. Both the County and City of Highland Park had a maintenance agreement where the City had the obligation to maintain the path in a reasonable and serviceable condition. For the most part, the evidence showed the location of the trail was in an urban area, and passed through areas with commercial and residential uses. Kathy fell from her bicycle when a person she was following crashed his bicycle due to an unmaintained area located on the trail.

The City answered the complaint with an affirmative defense under the Act (745 ILCS 10/03-107).
The trial court granted summary judgment to the City. The Appellate CoUtt reversed, finding Skokie Valley Trail was not a trail since it did not run through a forested or mountainous region, but was in a developed area. {Brown v. Cook County Forest Preserve 284 Ill. App. 3d 1098(1981 )(Brown). "Trail" is not defined in the Act. Maybe The General Assembly should do so. Our Supreme Court affirmed the Appellate Court for different reasons.

The Supreme Court determined the Appellate Court's reliance on Brown and its analysis that immunity derives from whether the trail traverses forested, mountainous, or natural and scenic wooded areas was misguided. It found Brown's reliance on a Dictionary definition in 1981 was almost two decades after the Act was promulgated. Next, it found the Brown court misquoted the definition from the Dictionary it referenced as to what a "trail" denoted. Lastly, Justice Burke opined, Brown viewed the word "trail" outside the context of the statute it was tasked as interpreting as a whole.

Instead, the Supreme Court looked at the statute's words in its entirety. It concluded immunity was granted due to a condition of not just a riding trail, but any hiking, riding, fishing, or hunting trail. The court opined, employing the principle of noscitur a soc1'is, that a word is given more precise content by the neighboring words with which it is associated. According to the court, the terms "hiking, riding, hunting, or fishing" which are used as modifiers of "trail" provide a limited construction. And, that such trails are properly understood, as applied to primitive rustic, or unimproved trails. In support of its view, the court relied on 10/3-107(a) which employs such characterizations in determining whether tort immunity applies to certain roads.

The court found that 10/3-107(b) of the Act only provides absolute immunity to primitive or rustic trails, which include; ***" any designated hiking, riding, fishing or hunting trail that retains its original natural surface and is not improved with asphalt, concrete, crushed aggregate, or similar finishes and is not intended for ordinary "on-road" type bicycles, bicyclists pulling children in trailers, pedestrians pushing strollers, or similar forms of transportation***." The latter proclamation is a broad mandate of legislative intent.

In Cohen the plaintiff inJuly 2013 was riding his bicycle on the LakefrontTrail, a path which runs adjacent to Lake Michigan in Chicago. It is improved and its use is shared by bicyclists, walkers, and others, but not motorized vehicles. Isaac Cohen while riding his bicycle got his front wheel caught in a crack on the pavement, fell and injured himself. He sued the Chicago Park District (District) alleging it had wilfully and wantonly failed to maintain the path, and therefore, was responsible for his injuries.

The District interposed affirmative defenses: 7 45 ILCS 10/3-107(a); and 745 ILCS 10/3-106. The trial court granted summary judgment to the District on both. The Appellate Court reversed. It held that 3-107(a) was only intended to apply to roads providing access to primitive or undeveloped recreational areas. Furthermore, it held summary judgment for the District was inappropriate because it could not be said the District's conduct was not willful and wanton conduct. 2016 IL App. (1st) 152889. The Supreme Court disagreed.

The court found the Appellate court's analysis amiss. First, it concluded the Lakefront Trail was a shared used path and not a road. Like "Trail," "road" is an undefined term in the statute. It should be. The court concluded that a road is a public way that permits motorized traffic. Because the Lakefront Trail did not permit such traffic it was not a road for purposes of 3-107(a). Whether it was located in primitive, or scenic area was immaterial. (cf, Mull).

The court moved on to 10/3-106 and found, as a matter of law, what amounts to willful and wanton conduct. The District argued that its conduct in repairing a crack on the Lakefront Trail could not amount to willful and wanton conduct. The Supreme Court agreed with the District.

The evidence before the court as to the District's activity was that in May 2013, the District's employee, Arlow, received a call from a user of the Lakefront Trail about the crack where Cohen crashed his bicycle. Arlow inspected the area and determined repairs needed to be made. He did not erect signs or barricades indicating the trail's condition. He did not make immediate repairs.

Instead, in June as was the District's practice, he sent out invitations for bids to contractors for quotes on repairs. A bid was received and accepted. The repairs were made to the area three days after Cohen fell. Although, the record showed the District had not repaired the area where Cohen fell, the court said its behavior could not amount to willful and wanton conduct as a matter of law. A subjective conclusion? Many reasonable jurists in our courts have differed as to the level of activity that comprise conscious disregard or utter indifference to the safety of others. Usually, a jury makes this call. (Murray v. Chicago Youth Center 224111. 2d. 213(2007). 

there were no prior injuries involving the crack which would have alerted the District to an extraordinary risk of danger. (A.O.). Finally, the court decides, that equating the District's behavior in addressing the complaint and taking rehabilitative steps to remedy it would make that the doctrines of negligence and willful and wanton conduct indistinguishable. The court reversed the Appellate Court and affirmed the trial court's summary judgment order.

The Local Government Tort Immunity Act was enacted long ago. A half century past. The purpose of this article is not to argue with whether it was appropriate. It was a creature and response to (Molitor v.
Kane/and Community Unit District No. 302 18111. 2d 11 (1959) [Molitot'J, which my mentor, Bill Murphy, tried to a jury's verdict for children who were horrifically burned while riding on a school bus in Kane County.
(See, Latturner, James, "Local Government Tort Immunity and Liability in Illinois," Illinois Bar Journal, 55 ///. Bar Joumal(pp. 28-31) (1966). It undid sovereign immunity.

With the rise of government in all phases of our polity, perhaps we should see concomitant responsibility for government actors akin to private ones. Cohen and Corbett reflect that tension. Tort immunity is a legislative fiat. It is in derogation of Illinois common law. [Molitot']. We need explicit statutes which declare governmental duties concerning recreational property. Our citizens pay for recreational opportunities these facilities create. At a minimum, we all deserve to know the extent of any liability which accompany the risk in enjoying them. More importantly, we need to know the extent of the duty which is owed by the government who is charged with maintaining the use of the properties all of us enjoy on a daily basis. Finally, we need to know when that duty has been compromised. Perhaps those citizens, as jurors, should be the ones to make that call.