good morning or first case of the call the docket day tuesday may twenty two two thousand and twelve is agenda number eight case number one on two seven eight eight roberta lighter more question presented to it under supreme court rule three zero eight a in the negative dozen non natural accumulation of snow and ice constitute the existence of a condition of any public property as the expression is used in section three one zero six of the tory need to be had more versus chicago part district this appeal focuses on the proper statutory interpretation of section three one zero six which states neither a local nor a public employee is liable for an injury where the liability is based on the existence of a condition of any proper public property intended or permitted to be used for recreational purposes is the first district recently stated this is because section three one zero six colors immunity from public into these common law duty to exercise ordinary care to maintain their property in a rebuilt reasonably safe manner r vs lincoln park zoo the park district asked this court to reject a second divisions megumi answer to the certified question and answered in the firmament of because under section three one zero six the previously shoveled and plowed ice and snow allegedly causing many accidents in this case represented a quote condition of any public property close quote not a misuse of property if we need to answer the fact section three one zero six it does not apply to the snow removal efforts in this case so they are in fact imposing liability for what is alleged to be negligence and in fact  complaint indeed there have been three complaints filed by the plaintiff in this matter all three of those complaints allege only negligence and do not allege willful and wanton misconduct district has addressed each of the point as as well a bit less counter arguments against application of section three one zero six to the circumstances that issue first that the park district does not own the fallen snow and therefore three section three one zero six cannot apply second the snow issue did not have a recreational use and therefore section three one zero six cannot apply third the store was not affixed to park district property to become part of the properties mode or state of being me and number four but negligence my ability attaches as a result of an employee's conduct and snow removal efforts versus a condition of the both ownership and usefulness of the snow and issue is immaterial to the question presented if was to with ownership in this case recreational property at issue is the sidewalk her and the condition is the snow and ice on the sidewalk curb the issue of who owns the condition and whether the condition increases the usefulness of the recreational property were never discussed in this sorry sylvester one someone you'll second at three seven nine and kaiser at three zero three will have thirty two hundred rather both of these coast cases focus on the property as a whole which was recreational in nature in determining whether section three one zero six immunity applies plain to sergeant that section twenty one of six does not apply because the park district did not own or lease the snow is based upon three cases which concerned the concrete parking about minutes or vaster a chair in kaiser and broken glass images key versus the chicago park district however in this court cover in keizer the quote was also silent as to who own the chair that was propped up against the door which caused the injury and that matter again the court did not deem ownership as material to the existence of the condition the district there was no evidence in that matter that the park district on the broken glass and in fact for example who in his brief makes a misstatement of the whether the greater use of the property at the time a girl fell off her bike was whether it was recreational property or not recreational property the court held that in that matter that in fact section three one well if we i'm agreeing with justice o'connor in her dissent in the more matter that a condition of property is is a characteristic of the property accumulation as the natural or unnatural accumulation rules do they come into play here at all they would not and in fact the more quart indicated that had the participant done nothing to the snow leaving it in its undisturbed state then in fact there would not be liability attaching in this matter is that your position council that stang was just simply wrong and that violent goes beyond the scope of the plain language of the statute and creates the choir meant that property be fixed that so as to become a part of the motor or state of being which is a little unclear what that means before it would be considered a condition of the property this type of reasoning nor is  the circumstance in sylvester that the concrete car bomb which was blocking a sidewalk to soldier field was also temporary in nature or in it of itself  in the second district decision in for our other cases that have held as well that property temporary proper probably not affixed to the the recreational property i was found to fall within section three one zero six in or back matter there was a skateboard ramp that was brought onto the property of them was not contemporaneous that resulted in the employee's injury rather than the condition of the property itself property as a whole that determined whether section three one zero six immunity applied the court did not discuss and this court cannot discuss the recreational nature of the current creek our apartment because it was immaterial to determining whether section three one zero six appl this court made no reference to the usefulness of the concrete car stopped because the only material question is whether the underlying facility or property increase the usefulness of the recreational property further contrary to plaintiff's argument the misplaced misplaced collar about men and sylvester improperly blocking a parlay parkway walkway does not increase the usefulness of the underlying walkway yet even though that decreased the usefulness this court still found that section three one zero six community applied and that matter furthermore in callahan the second district  held that a snow covered sidewalk was bounded by the scope of section three one zero six the killing in court never discussed whether the snow increased usefulness of the sidewalk or recreational property again because that was i material the matter of whether it was a condition in this matter it's undisputed that the club were playing a foul was within the parking lot adjacent to the park's field house and that is recreational property some essential characteristic of the property or of its mode or state of be determining whether it is a condition under section three one zero six for example at what level of viscosity would snow and ice be considered a condition when snow melts and turned to mud is it a condition starting test account for natural three freeze and throw thaw cycle where the characteristics of snow and ice and change numerous times over the course of a day how does the property is there a specific length of time that the property has to be remained fixed before section three one zero six applies it is these issues that are raised by studying the make it difficult nor any other public or private landowner would engage in snow removal the park district recognized that snow and ice could pose a danger to park patrons which is why it voluntarily undertook snow legislature sought to encourage property owners to voluntarily shell whom plow snow and ice by immunizing private landowners from negligence under the illinois snow removal act and immunising local public  from injuries caused by a condition of weather under section three one zero five the tory immunity had claimed as argument this that the park district snow removal efforts have no effect on the condition of the sidewalk or defies common sense again if snow and ice removal have no effect on the condition of underlying property there would be no reason for anyone to shovel or plow snow or ice furthermore as noted in the more dissent unlike section three one zero five there is nothing in section three one zero six indicating that the unnatural accumulation will affects three one rather than stern plaintiff in fact misstates stein an attempt to inform the holding in more to m division of the first district never mentioned mckeown in its decision the sixth division held that the host was not a condition of property under section three one zero six because it was  on this it is it your position that willful and wanton this kind of is not to be considered in this case what is just plain negligence on the part of the park just to get them really thereby made created this some natural condition it is therefore liable and negligence and is not applying section three one zero six he said it has no application to the instant matter  appellate decision in moore is contrary to the stated legislative intent of section three one zero six of the tort immunity had because it would discourage the development and maintenance of part property by diverting public funds to pay negligence claims for condition behind by which directly result from snow and ice removal on recreational property the practical effect of plaintiff's argument at the park is pick should be liable for negligent snow removal efforts is that will discourage not only the park district but also all recreational property owners from engaging in any type of snow removal efforts for fear of liability this is in direct conflict with the stated legislative purpose of section three one zero six and with the rather for the record richard grossman on behalf of the state of sylvia more council may it please the court obviously we disagree very strongly with the park district position we agree that it is a matter of statutory construction and i just i just wanted to touch upon a question that was raised by justice freeman regarding will from want and so that i could try and clear up this this particular issue the plaintiff in this case is allege simple negligence the plaintiff has not alleged will from one conduct if the plane to if section one of the six does not apply to the facts of the case then simple negligence carries the day in the plaintiff as proven or will be be able to prove their case so we do not have to allege willful and wanton conduct under those circumstances if one o six doesn't apply to gross more isn't this  simple as this court determining whether that be piling up of this no represents a condition or not well a in a sense you could determine if it is a condition or not but you have to go one step further and make a determination under the definition and three want to run which is the the definition of what is the property in question under three  a property of a local public entity and public property means real little personal property owned or leased by a local public county it is our position in this case that the park district did not own or lease the snow in question yesterday on the underlying land absolutely as a matter of fact they own the content of the asphalt they own the buildings they own everything in that park is theirs but it was snowing question the snow operation which is what we have alleged that there was a negligent snow operation here not that there was a defect of property if you go to our complaint a complaint was not alle defect in the park it alleges that these employees of the park district in caged in negligence no operation is a little tortured reading of everybody agrees three one of the six applies and it doesn't say liability is based on the existence of public property intended or permitted to be used for recreational use it says the existence of a condition of any public property that is correct a condition of public property that goes back to my question what if we found that the condition of the parking lot at the relevant time was that it had piles of snow and ice on it from being plowed isn't that the condition of the property i do not believe so i do not believe that that is the that is the appropriate interpretation under the statute considering that the statute does endure a geisha and hardly common law and must be strictly construed what wording of three one of the six are you using to come up with your interpretation well when you says here a condition of public property our interpretation of that is the actual property itself in other words if somebody fell in a hole in the property of curves or broken their sidewalks or broken if the lading is out things along those lines if those things are in fact in place we believe that that is the intent of the legislature in passing this particular statute in not for purposes of of the snow the snow is it is a is a separate entity separate temporary phenomena something that falls from the sky and i'm not saying that it has to be permanently affixed to the property i would say those are easy cases in other words how also mentioned many cases where there were there's a building that that's a fact of our home or washroom that's to fact that's affixed have to be affixed to the property those are easy cases the more difficult cases are when you get into personal property which is let's assume it's owned by the park district in other words i think there was there's one case in excuse me some of the names i forget but there was some type of a slide in inflatable slide that the park district least for children to use and it was defective and a child was hurt in the court in their particular case determined that this personal property which was not affixed to the park wasn't the recreational property in and of itself in therefore would come within one of the six but when we peoria park district or leased by the park district but at the same time this court found that the mere fact that it is personal property owned or leased by the by the entity the recreational entity in this case the peoria park to strict that's not enough so to answer one of the other questions that was presented to me the mere fact of that it is that it is a piece of property that it is a piece of property owned by the particular entity doesn't answer the question is to whether it is a condition of public property it doesn't answer that question  the way stein is that way as a matter of fact the case of grundy which was recently decided remarkably tells us the same thing and grundy i think it was involving the was personal property has defined in twenty one to one it was personal property but  it was personal property but that it's still there still was an issue of fact as to whether or not that is a condition of the public property used for recreational purposes and that's what was held in that particular case no to the to the contrary i'm saying that the that in this one i think that our case is much stronger in our case i'm suggesting that this snow is not owned by anyone i could not find any frankly i attempted to find a case in the united states or anywhere on earth that define who owns fallen snow and there are there's there was no there's no case law there's nothing on it it's a it's an act of nature it falls it evaporates it melts it disappears so my argument is simply that this was not the park district snow and since it was not there snow it was not the public property and if it's not their public property then it is a snow operation he has alleged in the complaint in not a defect in the property contrary to what counsel was saying i'm not saying there's anything wrong with the curb there's nothing wrong with the asphalt there's nothing wrong with the gutters or or anything else at this particular park the problem was to then we're into we're into an issue as to whether or not any municipality or any public kennedy under any circumstance is liable whether they can gauge in some operations or not so whether it's the city of springfield chicago or any other any other city if they do not engage in the ad in the in the activity then there could be no liability and then we get into one of the five that gets you into sexual or five if you go t why would any public entity then while why did it take you just said it you said natural accumulation of ice and snow no liability unless they plow why would they ever fall would they be shut down for business when they worry about every time that they did take what would seem to be reasonable action and flowing in a parking lot why would they do that if it's objective than the liability well first of all they would be i guess he'll going could say very easily that it's a it's in the public good for them to do it obviously you could say that secondly there but if you look at the z and z in simi case decided by this court if they engage in direct that activity in they do s again the getting back the condition give me an example of a condition of public property that is not a property so thank you one and i don't mean to be  off color but but the this case is a very good example in other words snow is is a is a is an excellent example of what is and what is i'm sorry maybe i misunderstood the question i want to know what condition of talking about maybe some type of hole in the sidewalk or something that is the property itself that they would not have a duty and they'd be immunized is that it yes that that is the case in other words the classic situation  sidewalks in disrepair curbs in disrepair a hole in the asphalt a parking rot the lights are not on so somebody can see a door check hitting them hitting somebody on the way out all right so y or sidewalk so they decide to try to repair the sidewalk but don't don't do such a good job over here in the side they fill it in that it makes it worse than it was before and somebody comes and trips is that a condition of the property or it like snow and ice that you know sir that that is a condition in my opinion that would come with him immunity provided three one of six and what's the difference you mean the difference the difference between which the difference between them repairing the sidewalk a negligent manner and that now being a condition of the property right it was a condition before you have no doubt that was a condition when it was all on the sidewalk now they fill the sidewalk right it would still be correct right snow and ice though ali is not it that is correct it's not part of the it is it is a temporary phenomenon not owned by them under the under the first example that you gave to the on the sidewalk to the on the whole yes when they filled the home with their material are they using their material yes all of those things or have direct connection to the entity if we're using the product district as an example here so if they have a big hole  their acting out of it's their home it's no sidewalk it's their concrete they owned it it's part of a of the building of the park in the case of the snow it's not because of the you've got traditional traditional camping overnight thing or whatever yes there would be liability that says that's the same case as the is that slide at the inflatable slide that i mentioned a little while ago if there's no question if the object itself if the personal property is owned by the by in this case the park district if that is a recreational object in and of itself that's an easy it's a very easy answer for to would be yes absolutely they own it they own the pot they own the planet or they own me they own everything is a matter of fact if presumably if with one place isn't there it will be there forever that's a good that's a that's a different situation in that particular scenario if there was a toboggan run or something like that yes that has a that certainly has a recreational purpose to it under those circumstances but in the scenario in our case there is no recreational purpose it has nothing to the property in effect detracts from the property him for example in the sylvester case with the the car stop that concrete car stop which i believe quaid i don't know hundred  some odd pounds that car stop it was never it's not mentioned in the opinion but my presumption is that was owned by the by the public entity and once again recreational another good example of what you're mentioning yes but what you're good because you were here's the here's another good example if you have an ice skating rink a lot of lot of towns have ice skating ranks in that scenario that is are there is a recreational purpose for that in other words the the skating is the recreation i'm at the in the toboggan run that is the recreation it's a recreational activity and plow what they've created right in their water right and it starts to snow so the snow comes down and now they have to plow it again but that had nothing to do with the ice rink that they maintain so for the ice that they pushed that would be a condition that was immunized but for the falling snow that rests on the rake and they push in europe in your allegations negligently to the corner of the rink and somebody gets hurt that would not be immunised because it's a temporary condition that wasn't part of their property i'm sorry i'm not following exactly were the end or end of the snow is what is a grind up it winds up in an unsafe condition somewhere on the side of the rain or whatever i understand but in that in that scenario you're dealing with a recreational activity and it is it is bound to that recreational activity  involving that scenario an ice skating rink design we're recreational purposes in that particular location yes of course it's not because it's of whether it's a fixed or not it's because it's recreational that's the argument just as he just has the the slip the inflatable slide was for the children that was or that's a recreational heck to excuse me that's a recreational conclude please thank you very much i believe that the the findings and the rulings by the lower court should be sustained i believe  that the snow and ice upon which mrs moore fell in the ultimate league died unfortunately was not within the definition of three want to one it was there was no immunity pursuant t the ownership issue the ownership of particular conditions was something that this court never really saw as material the  the this court was silent as the ownership of the car and creek our apartment council indicated that he supposes assumes that the chicago park district owned that abutment however regardless of his assumption  not see it as a material issue in determining that decision much the same with an majeure ski versus called the park district where the ownership of the glass debris in the football field was not material the fact is were might have brought it there were godless it became a condition much as the skate board grant became a condition of that property and in the order of the matter so the particular ownership of the defect if you well is is clearly immaterial it's its is the underlying greater property  recreational that is what controls the issue but in addition there is also some discussion you know as to that it was chicago park district employees conduct which created this condition  material in straub where there was a some metal guide wires versus the city of on all of welding a tree in place the court stated that section three one zero two delineates governmental duties regarding property maiden it's accepted as otherwise provided in this article and then it goes on to know  this trial court section three one zero six delineates when i remedy is available when a person is injured in a public park the stop court specifically rejected the plaintiff's argument matter that section three zero six applied only to in action that is passive conditions not to affirmative conduct of an employee the court stated that counsel let me a follow up a few questions for you want all six is a recreational purposes i mean a t correct yes or several times mr grossman answered questions that something was or wasn't immunized because of the recreational nature of either the condition or the the conduct so i want to ask that this was not on in the field house that this is a parking lot i guess adjacent to the further wood parkfield house correct yes so but is there any dispute that the parking lot because it's not used for recreational is still covered because it's part of the intro part of using the field house and that that is obviously a recreational yeah it is good this is this is poppy is clearly recreational it's so purpose is recreational  and then he went into the park in that lot and use that sidewalk to get him to use the facilities and the property he sure had no other purpose for example it was not shared with a board of ed section three one zero five implied in that matter again for the circumstances at issue it is three one zero six and again three one zero due to any type of duty under act does not apply has three one zero six is more specific and controls thank you thank you a several one one