Appellate Court of Illinois,

Second District.

Sarah COLELLA and Ignatius Colella,
Plaintiffs-Appellants,

v.

The LOMBARD PARK DISTRICT and the Village of
Lombard, Defendants

(The
Lombard Park District, Defendant-Appellee).

No. 2-16-0847

Opinion filed
September 28, 2017

Appeal from the
Circuit Court of Du Page County. No. 14-L-418, Honorable Robert G. Kleeman,
Judge, Presiding.

OPINION

JUSTICE HUTCHINSON delivered the judgment of the court, with
opinion.

*1 ¶ 1
Plaintiffs, Sarah and Ignatius Colella, filed a complaint against defendants,
the Lombard Park District (Park District) and the Village of Lombard (Village),
relating to an injury that Sarah sustained while she was walking on a Park
District path. To be specific, Sarah’s leg was impaled by a piece of rebar
protruding from a railroad tie that was apparently dumped on the Park District
property. Plaintiffs appeal the trial court’s order granting the Park
District’s motion to dismiss plaintiffs’ fourth amended complaint pursuant to
section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West
2014)). In granting the Park District’s motion, the trial court ruled that the
Park District was immune from liability pursuant to sections 3-106 and 3-107(b)
of the Local Governmental and Governmental Employees Tort Immunity Act (Tort
Immunity Act) (745 ILCS 10/3-106, 3-107(b) (West 2014)). We affirm.

¶ 2 I. BACKGROUND

¶ 3 We begin by
summarizing the allegations contained in plaintiffs’ third amended complaint.
On April 29, 2013, Sarah was walking her dog along a “nature/walking path” in
Westmore Woods, a park located within the Village and controlled by the Park
District. During her walk, Sarah “tripped and fell and her leg was impaled by a
large nail/spike protruding from a piece of lumber such as a railroad tie or
landscape timber that should not have been on the nature path.” Pictures in the
record depicting Sarah’s injury show a piece of rebar, approximately 18 inches
long, piercing completely through Sarah’s left calf, such that the rebar
entered one side of her calf and exited on the other side.

¶ 4 Plaintiffs alleged
that debris had been dumped on the grounds of the Westmore Woods property prior
to a heavy rainstorm that occurred on April 17, 2013. The storm produced
extensive flooding that caused the displacement of debris throughout the
Westmore Woods property. Plaintiffs alleged that defendants had actual and
constructive notice of the dumping and displacement of debris, as these
conditions had been reported to Park District personnel and had been recorded
on the Park District’s daily work logs.

¶ 5 The third amended
complaint contained six counts: three naming the Park District (counts I, III,
and V) and three naming the Village (counts II, IV, and VI). Counts I and II
alleged willful and wanton conduct; counts III and IV alleged that Ignatius had
suffered a loss of consortium; and counts V and VI alleged ordinary negligence.

¶ 6 The Park District
and the Village separately filed combined motions to dismiss plaintiffs’ third
amended complaint, pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1
(West 2014)). The Village argued that it owed no duty to plaintiffs, citing an
intergovernmental agreement with the Park District establishing that the Park
District was exclusively responsible for the management and maintenance of
Westmore Woods. The trial court granted the Village’s motion to dismiss counts
II, IV, and VI with prejudice, finding that plaintiffs had failed to allege
that the Village owed them a duty. Plaintiffs have not appealed the trial
court’s ruling with respect to the Village, and the Village is not a party to
this appeal.

*2 ¶ 7 The Park
District argued in its motion that it was entitled to a dismissal under section
2-615 of the Code (735 ILCS 5/2-615 (West 2014)), maintaining that plaintiffs
had failed to allege facts showing that it had actual or constructive notice of
the presence of the specific piece of “spiked timber” that caused Sarah’s
injury. (For the sake of brevity, we will hereinafter refer to the railroad tie
with the protruding rebar as the “spiked timber.”) The Park District also
argued that it was entitled to a dismissal under section 2-619 of the Code (735
ILCS 5/2-619 (West 2014)), asserting that it was immune from liability under
two sections of the Tort Immunity Act. The Park District first asserted that it
was immune from liability for ordinary negligence pursuant to section 3-106 of
the Tort Immunity Act (745 ILCS 10/3-106 (West 2014)), because the spiked
timber constituted a “condition” of public property intended or permitted to be
used for recreational purposes. The Park District next asserted that, because
the spiked timber also constituted a “condition” of a “hiking trail” within the
meaning of section 3-107(b) of the Tort Immunity Act (745 ILCS 10/3-107(b)
(West 2014)), it was immune from liability for willful and wanton conduct.

¶ 8 Attached to the
Park District’s motion was the affidavit of park superintendant Bill Sosnowski,
who denied that there had been any reports of debris along the path where Sarah
was injured. Sosnowski opined that the spiked timber had been dumped in
Westwood Woods and had washed onto the path as a result of the recent flooding.

¶ 9 On August 3, 2015,
following arguments, the trial court denied the Park District’s motion, finding
that plaintiffs’ allegations were sufficient under section 2-615 of the Code to
state the causes of action set forth in counts I (willful and wanton conduct),
III (loss of consortium), and V (ordinary negligence). The trial court further
found that it would be “premature” to grant the Park District’s motion under
section 2-619 of the Code, as the arguments pertaining to the Tort Immunity Act
involved “fact-driven” issues.

¶ 10 The pleadings
reflect that the judge who denied the Park District’s motion to dismiss was
administratively transferred to a different courtroom on or around September
14, 2015. On September 24, 2015, the Park District filed a motion requesting
that the newly assigned judge reconsider the first judge’s ruling. The motion
focused specifically on the application of sections 3-106 and 3-107(b) of the
Tort Immunity Act. Following a hearing, the newly assigned judge stated his
disagreement with the first judge’s ruling. The newly assigned judge believed
that sections 3-106 and 3-107(b) both applied, and accordingly he entered an
order granting the Park District’s motion to reconsider. However, the newly
assigned judge acknowledged that he had only recently been assigned to the
case, and he commented that “fairness dictates I give [plaintiffs] an
opportunity to see if [they] can accommodate what are new concerns from the
bench.” On that basis, plaintiffs were granted leave to file a fourth amended
complaint.

¶ 11 Plaintiffs’
fourth amended complaint, which was nearly identical to their third amended
complaint, added an allegation that the Park District “[w]illfully and wantonly
misused the nature/walking path of Westmore Woods by allowing the dumping of
debris on [Park District] land despite repeated complaints to the [Park
District] about said dumping of debris thereby allowing for the property to no
longer be safe.” Consistent with its argument during the hearing on its motion
to reconsider, the Park District filed a motion to dismiss plaintiffs’ fourth
amended complaint, based solely on section 2-619 of the Code. The motion relied
exclusively on sections 3-106 and 3-107(b) of the Tort Immunity Act.

¶ 12 On September 7,
2016, the trial court conducted a hearing on the Park District’s motion to
dismiss plaintiffs’ fourth amended complaint. Following arguments, the trial
court stated that its earlier conclusions remained unaffected by plaintiffs’
additional allegation that the Park District “misused” the Westmore Woods
property by “allowing the dumping of debris.” Accordingly, the trial court
granted the Park District’s section 2-619 motion to dismiss plaintiffs’ fourth
amended complaint, with prejudice.

*3 ¶ 13
Plaintiffs filed a timely notice of appeal.

¶ 14 II. ANALYSIS

¶ 15 Our review here
is confined to the trial court’s order granting the Park District’s motion to
dismiss plaintiffs’ fourth amended complaint pursuant to section 2-619 of the
Code. The purpose of a section 2-619 motion to dismiss “is to dispose of issues
of law and easily proved issues of fact at the outset of litigation.” Van
Meter v. Darien Park District, 207 Ill. 2d 359, 367, 278 Ill.Dec. 555, 799
N.E.2d 273 (2003). A section 2-619 motion admits the sufficiency of the
complaint, but asserts an affirmative matter that defeats the claim. Bjork
v. O’Meara, 2013 IL 114044, ¶ 21, 369 Ill.Dec. 313, 986 N.E.2d 626.
Immunity under the Tort Immunity Act is an affirmative matter that is properly
raised in a section 2-619 motion to dismiss. DeSmet v. County of Rock
Island, 219 Ill. 2d 497, 504, 302 Ill.Dec. 466, 848 N.E.2d 1030 (2006).
When ruling on a section 2-619 motion, a court must interpret all pleadings and
supporting documents in the light most favorable to the nonmoving party. Porter
v. Decatur Memorial Hospital, 227 Ill. 2d 343, 352, 317 Ill.Dec. 703, 882
N.E.2d 583 (2008). The motion should be granted only if the plaintiff can prove
no set of facts that would support a cause of action. Feltmeier v.
Feltmeier, 207 Ill. 2d 263, 277-78, 278 Ill.Dec. 228, 798 N.E.2d 75 (2003).
A section 2-619 dismissal is subject to de novo review. Van
Meter, 207 Ill. 2d at 368, 278 Ill.Dec. 555, 799 N.E.2d 273.

¶ 16 Here, the trial
court granted the Park District’s section 2-619 motion on the basis of its
ruling that the Park District was immune from liability for Sarah’s injury
pursuant to sections 3-106 and 3-107(b) of the Tort Immunity Act. These
sections carve separate immunities from a local public entity’s duty to
exercise ordinary care to maintain its property in a reasonably safe condition.
See 745 ILCS 10/3-102(a) (West 2014). The pertinent statutory language reads as
follows.

¶ 17 Section 3-106
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 for recreational purposes, including but not limited to
parks, playgrounds, open areas, buildings or other enclosed recreational facilities,
unless such local entity or public employee is guilty of willful and wanton
conduct proximately causing such injury.” 745 ILCS 10/3-106 (West 2014).

¶ 18 Section 3-107
provides:

“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. (b) Any hiking, riding, fishing or hunting
trail.” 745 ILCS 10/3-107 (West 2014).

¶ 19 As seen above,
section 3-106 provides immunity only for negligent conduct, but it applies to
injuries connected with a broad category of public properties. However, section
3-107 provides absolute immunity for both ordinary negligence and willful and
wanton conduct relating to injuries connected with a narrow category of trail
and access-road properties. Scott v. Rockford Park District, 263
Ill. App. 3d 853, 856-57, 201 Ill.Dec. 643, 636 N.E.2d 1075 (1994); see
also Ries v. City of Chicago, 242 Ill. 2d 205, 224, 351 Ill.Dec.
135, 950 N.E.2d 631 (2011) (noting that, when the plain language of an immunity
provision in the Tort Immunity Act contains no exception for willful and wanton
conduct, it is presumed that the legislature intended to immunize liability for
both negligence and willful and wanton conduct). Thus, a ruling that section
3-107 applies obviates the need to consider whether section 3-106 also applies.
We will therefore begin by addressing section 3-107.

*4 ¶ 20 In
granting the Park District’s section 2-619 motion to dismiss, the trial court
found that Sarah’s injury was “caused by a condition of *** [a]ny hiking,
riding, fishing, or hunting trail” under section 3-107(b). 745 ILCS 10/3-107(b)
(West 2014). Plaintiffs argue that the trial court’s ruling was incorrect for
two reasons. First, plaintiffs argue that Sarah’s injury did not occur on a
“trail” within the meaning of section 3-107(b). Plaintiffs’ second argument is
that Sarah’s injury was not caused by a “condition” of a trail within the
meaning of section 3-107(b). We will address these arguments in turn.1

¶ 21 Plaintiffs did
not raise their first argument in the trial court, as it is based on this
court’s holding in a decision that was published shortly after the trial court
granted the Park District’s motion to dismiss. In Corbett v. County of
Lake, 2016 IL App (2d) 160035, 407 Ill.Dec. 712, 64 N.E.3d 90, appeal
allowed, No. 121536 (Ill. Jan. 25, 2017), this court held that a paved
bicycle path running parallel to a highway was not a “trail” within the meaning
of the Tort Immunity Act. We first noted that, to be considered a “trail” under
section 3-107(b), a path must be located in a “forest or mountainous
region.” Id. ¶ 29; see also McElroy v. Forest Preserve
District of Lake County, 384 Ill. App. 3d 662, 667, 323 Ill.Dec. 611, 894
N.E.2d 170 (2008); Mull v. Kane County Forest Preserve District,
337 Ill. App. 3d 589, 591, 271 Ill.Dec. 978, 786 N.E.2d 236 (2003) (quoting
Webster’s Third New International Dictionary 2423 (1993)). We continued by
holding in pertinent part:

“As a matter of law,
this restriction defeats the [defendant’s] assertion that the path is a riding
or hiking trail. No contention has been made that the path is located in a
mountainous region (mountains being scarce in Lake County). No serious contention
can be made that the path is located in a forest; no reasonable person who
views the photographs of the path and its surroundings, or even reads their
descriptions by those who have seen them, would describe those surroundings as
a forest. The path is bordered by narrow bands of greenway that sport some
shrubs and a few trees; these narrow bands are surrounded by industrial
development, residential neighborhoods, parking lots, railroad tracks, and
major vehicular thoroughfares (to the east and south of the
area of the accident). The case for considering the path a riding trail would
not succeed even if utility poles could be considered trees with power lines
for branches.” (Emphasis in original.) Corbett, 2016 IL App (2d)
160035, ¶ 29, 407 Ill.Dec. 712, 64 N.E.3d 90.

¶ 22 Here, plaintiffs
note that Westmore Woods has been improved with additions such as a pond, a
playground, picnic tables, and a baseball diamond. They assert that Westmore
Woods is not a “forest preserve,” but rather a “park that uses trees as props
for city outings.” Plaintiffs argue that these improvements to Westmore Woods
make this case analogous to Corbett and that section 3-107(b)
thus does not apply. We disagree. Plaintiffs’ argument is creative, but not
persuasive.

*5 ¶ 23 Although
the Park District has not specifically designated Westmore Woods as a “forest
preserve,” it remains that the path where Sarah was injured is nothing like the
paved bicycle path in Corbett. The path in Corbett was
sandwiched between a highway and a set of railroad tracks, with commercial
buildings and stacked industrial materials lining both sides. Id. ¶
12. However, the pictures in the record depicting the area where Sarah was
injured establish that Westmore Woods was aptly named: they show a dirt path
winding through a densely wooded landscape. Trees abound and shrubs flourish in
their natural state. In layman’s terms, the pictures depict a trail running
through a forest.

¶ 24 Plaintiffs’
reliance on Corbett is misplaced. We did not hold in Corbett,
as plaintiffs suggest, that the development of surrounding property
automatically disqualifies a path from being considered a “trail” under section
3-107(b). To the contrary, we specifically clarified that “the character of a
path as a ‘trail’ is not automatically defeated by the existence of any
development in the surrounding area.” Id. ¶ 28. We
acknowledged that a “ ‘forest’ ” could retain its character “even with a
moderate degree of improvement within and without.” Id. ¶ 30. We
noted, however, that “[a]n industrial/commercial/residential area is not a
forest because it contains narrow strips of green space on which a few trees
stand.” Id. Thus, our concern in Corbett was
whether the term “trail” under section 3-107(b) should be construed so broadly
as to provide absolute immunity for an injury that occurred on an urban path
lacking any natural or scenic characteristics. See also Brown v. Cook
County Forest Preserve, 284 Ill. App. 3d 1098, 1101, 220 Ill.Dec. 471, 673
N.E.2d 383 (1996) (concluding that “paved bicycle paths that traverse developed
city land are not properly classified as ‘riding trails’ for purposes of
section 3-107(b)”). Because no such concerns are implicated in this case, we
hold that, for purposes of section 3-107(b), Sarah was injured on a “hiking
trail.”

¶ 25 We now turn to
plaintiffs’ argument that Sarah’s injury was not caused by a “condition” of a
trail within the meaning of section 3-107(b). Before addressing the merits of
that argument, we note that “[s]tatutory language must be given its plain and
ordinary meaning, and courts are not free to construe a statute in a manner
that alters the plain meaning of the language adopted by the
legislature.” Murray v. Chicago Youth Center, 224 Ill. 2d 213, 235,
309 Ill.Dec. 310, 864 N.E.2d 176 (2007). “If the language of a statute is
clear, this court must give effect to its plain and ordinary meaning without
resort to other aids of statutory construction.” Id. We will not
depart from the plain language of the Tort Immunity Act by reading into it
exceptions, limitations, or conditions that conflict with the express
legislative intent. In re Chicago Flood Litigation, 176 Ill. 2d
179, 193, 223 Ill.Dec. 532, 680 N.E.2d 265 (1997).

¶ 26 Here, plaintiffs
contend that the spiked timber did not constitute a “condition” of a trail
within the meaning of section 3-107(b), arguing that section 3-107 applies only
to “physical” or “natural” conditions. In support, plaintiffs point to Sites
v. Cook County Forest Preserve District, 257 Ill. App. 3d 807, 196 Ill.Dec.
76, 629 N.E.2d 621 (1994), and Goodwin v. Carbondale Park District,
268 Ill. App. 3d 489, 205 Ill.Dec. 956, 644 N.E.2d 512 (1994).

¶ 27 The plaintiff
in Sites was injured when his bicycle struck a cable gate that
was stretched across a road providing access to a forest preserve. Sites,
257 Ill. App. 3d at 808, 196 Ill.Dec. 76, 629 N.E.2d 621. In concluding that
the cable gate was not a “condition” of the access road, the appellate court
held as follows:

“We infer that the
statutory intent [of section 3-107] is to relieve public entities from the duty
to maintain such access roads, which may be unpaved and uneven. But a structure
erected on an access road, such as the chain or cable gate causing plaintiff’s
injury, should not be considered a physical condition of the road covered by
section 3-107. The structure was an artificial barrier that was not a part of
the road itself. The statute does not appear to have the purpose to relieve
public entities from liability for injuries caused by structures erected on the
exempted roads.” Id. at 811, 196 Ill.Dec. 76, 629 N.E.2d 621.

*6 ¶ 28 The
plaintiff in Goodwin was injured when his bicycle collided
with a tree that had fallen across a paved bike path within a city park. Goodwin,
268 Ill. App. 3d at 490, 205 Ill.Dec. 956, 644 N.E.2d 512. The Goodwin court
affirmed the trial court’s ruling that section 3-106 applied to provide the
park district with immunity for the plaintiff’s ordinary-negligence claims.
However, the Goodwin court reversed the trial court’s ruling
that the bike path constituted a “riding trail” within the meaning of section
3-107(b), thereby reinstating the plaintiff’s willful-and-wanton-conduct
claims. Id. at 491, 205 Ill.Dec. 956, 644 N.E.2d 512. In so
ruling, the Goodwin court commented as follows:

“Reading section 3-107
as a whole indicates that the property referred to therein is unimproved
property which is not maintained by the local governmental body and which is in
its natural condition with obvious hazards as a result of that natural
condition. *** Absolute immunity is extended for injuries sustained on these
types of property because of the burden in both time and money if the local
governmental entity were required to maintain these types of property in a safe
condition.” Id. at 493, 205 Ill.Dec. 956, 644 N.E.2d 512.

¶ 29 We are not
persuaded by the comments in Sites or Goodwin that
section 3-107 applies only to “physical” or “natural” conditions. To begin, the
Park District characterizes Sites as “questionable legal
authority,” noting that it conflicts with Kirnbauer v. Cook County
Forest Preserve District, 215 Ill. App. 3d 1013, 159 Ill.Dec. 499, 576
N.E.2d 168 (1991), an earlier First District case. In Kirnbauer,
the court concluded that section 3-107 applied when the plaintiff was injured
by a steel cable that was stretched across the entrance to a forest
preserve. Id. at 1023-24, 159 Ill.Dec. 499, 576 N.E.2d 168.
Furthermore, in McElroy, 384 Ill. App. 3d at 669, 323 Ill.Dec. 611,
894 N.E.2d 170, this court held that the immunity provided by section 3-107
applies to manmade objects such as a wooden bridge or a boardwalk. Thus, the
statements in Sites pertaining to manmade structures are
contradicted by our holding in McElroy. The same holds true to an
extent regarding Goodwin. In McElroy, we explicitly
stated our disagreement with the Goodwin court’s contention
that a trail must be “ ‘unimproved’ ” to fall under section 3-107(b). Id. at
667, 323 Ill.Dec. 611, 894 N.E.2d 170 (quoting Goodwin, 268 Ill.
App. 3d at 493, 205 Ill.Dec. 956, 644 N.E.2d 512).

¶ 30 With regard to
the Goodwin court’s comment that section 3-107 applies to
property “in its natural condition with obvious hazards as a result of that
natural condition,” we note that the legislature could have easily added such
an exception to section 3-107 if it deemed necessary. See, e.g.,
Cal. Gov’t Code § 831.2 (West 2016) (“Neither a public entity nor a public
employee is liable for an injury caused by a natural condition
of any unimproved public property, including but not limited to any natural condition
of any lake, stream, bay, river or beach.” (Emphases added.)). Moreover,
the Goodwin court’s comments indicate that section 3-107
applies broadly to all “injuries sustained on” access roads and trails, thus
contradicting the notion that section 3-107 applies only to those injuries
caused by naturally occurring conditions. Cf. Foust v.
Forest Preserve District, 2016 IL App (1st) 160873, ¶ 48, 408
Ill.Dec. 218, 65 N.E.3d 440 (“The plain language of [section 3-107(b)] thus
requires the injury to be caused by a condition of a trail, and the only
reasonable interpretation of that language is that for there to be immunity,
there must be something on the trail itself that caused the injury.”).

¶ 31 However,
the Goodwin court’s observation of the policy reasons
underlying section 3-107 is well taken. A countless number of dangerous
conditions, both naturally and unnaturally occurring, undoubtedly exist on the
many access roads and trails to which section 3-107 applies. Suppose, for
instance, that the fallen tree from Goodwin was every bit as
menacing as the spiked timber in this case and that it was lying across the
Westmore Woods trail, just a short distance beyond the point of Sarah’s injury.
We find nothing in the plain language of section 3-107 to indicate that our
legislature intended to immunize the Park District from liability for willful
and wanton conduct relating to the fallen tree but not to the spiked timber. A
holding to the contrary would effectively impose a burden on local public
entities that undermines the purpose of section 3-107. See Cohen v.
Chicago Park District, 2016 IL App (1st) 152889, ¶ 42, 408 Ill.Dec. 700, 66
N.E.3d 492 (“By immunizing a public entity from liability for injuries
occurring on the property specified in section 3-107, the legislature has, in
effect, relieved public entities from the burden of having to maintain such
property.”).

*7 ¶ 32 For all
of these reasons, we hold that the spiked timber was a “condition” of the trail
within the meaning of section 3-107(b), such that the Park District is entitled
to absolute immunity from liability for Sarah’s injury. We therefore affirm the
trial court’s order granting the Park District’s section 2-619 motion to
dismiss.

¶ 33 However, before
we conclude, we take a few moments to address plaintiffs’ alternative argument
in reliance on McCuen v. Peoria Park District, 163 Ill. 2d 125, 205
Ill.Dec. 487, 643 N.E.2d 778 (1994). This relates to plaintiffs’ additional
allegation in their fourth amended complaint that the Park District “[w]illfully
and wantonly misused the nature/walking path of Westmore Woods by allowing the
dumping of debris on [Park District] land despite repeated complaints to the
[Park District] about said dumping of debris thereby allowing for the property
to no longer be safe.” Although McCuen involved limited
immunity under section 3-106, plaintiffs assert that we should apply the
reasoning from that case in the context of section 3-107.

¶ 34 The plaintiffs
in McCuen were injured when they were thrown from a mule-drawn
hayrack. They alleged that their injuries were caused by a park district
employee’s negligent handling of the mule team, in that he caused the mules to
suddenly bolt and run off without a driver. Id. at 126-27, 205
Ill.Dec. 487, 643 N.E.2d 778. As noted by the appellate court, there was no
dispute that the hayrack and the mule team were public property. McCuen
v. Peoria Park District, 245 Ill. App. 3d 694, 697, 185 Ill.Dec. 894, 615
N.E.2d 764 (1993). The park district argued, however, that the “driverless
hayrack” constituted a “condition” of public property within the meaning of
section 3-106. McCuen, 163 Ill. 2d at 129, 205 Ill.Dec. 487, 643
N.E.2d 778. In other words, the park district argued that the “driverless”
nature of the hayrack constituted a “condition” of the hayrack itself.
See Grundy v. Lincoln Park Zoo, 2011 IL App (1st) 102686, ¶ 8, 354
Ill.Dec. 125, 957 N.E.2d 441 (observing that the property at issue in McCuen was
the hayrack, as opposed to real property).

¶ 35 In affirming the
appellate court’s ruling that section 3-106 did not apply, our supreme court
first observed:

“In order to determine
whether section 3-106 applies, the court must determine whether liability for
the injury alleged is based on ‘the existence of a condition of any public
property.’ If liability is not based on the existence of a condition of
public property, section 3-106 does not apply.” (Emphasis added.) McCuen,
163 Ill. 2d at 128, 205 Ill.Dec. 487, 643 N.E.2d 778.

The court went on to
hold in pertinent part:

“Plaintiffs do not
claim that the hayrack itself was dangerous, defective or negligently
maintained, only that the mule team was not handled properly by the park
district employee. The handling of the mule team does not relate to the
condition of the hayrack itself. If otherwise safe property is misused so
that it is no longer safe, but the property itself remains unchanged, any
danger presented by the property is due to the misuse of the property and not
to the condition of the property.” (Emphasis added.) Id. at 129,
205 Ill.Dec. 487, 643 N.E.2d 778.

¶ 36 Here, plaintiffs
argue that the Park District’s alleged “misuse” of the Westmore Woods
property—allowing the dumping of debris—is similar to the conduct that was
considered in McCuen. Plaintiffs maintain that section 3-106 is
inapplicable because the Park District committed acts or omissions that created
a danger on the otherwise safe Westmore Woods property. On that basis,
plaintiffs argue that we should extend the reasoning in McCuen to
section 3-107, meaning that the Park District’s alleged “misuse” of the
Westmore Woods property negates its ability to benefit from either statutory
immunity. We disagree.

*8 ¶ 37 Again,
section 3-106 provides that “[n]either 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 for recreational purposes.” (Emphasis added.) 745 ILCS 10/3-106
(West 2014). It therefore stands to reason that section 3-106 does not apply
if a plaintiff’s theory of liability is not based on the
existence of a condition of the property in question. McCuen, 163
Ill. 2d at 128, 205 Ill.Dec. 487, 643 N.E.2d 778. In McCuen,
section 3-106 did not apply, because the plaintiffs’ theory of
liability was not based on the existence of a condition of the
property in question: the hayrack. Rather, the plaintiffs’ theory of liability
was based on the negligent handling of the mule team, which did not relate to
the condition of the hayrack itself. Id. at 128-29, 205 Ill.Dec.
487, 643 N.E.2d 778. McCuen therefore demonstrates that,
consistent with the plain language of section 3-106, the limited immunity
provided in that section is unavailable if a plaintiff’s theory of liability is
based on conduct that is unrelated to the existence of a condition of the
property in question. See also Manuel v. Red Hill Community Unit School
District No. 10 Board of Education, 324 Ill. App. 3d 279, 285, 257 Ill.Dec.
790, 754 N.E.2d 448 (2001) (“Accepting the plain meaning of the language, the
theory of liability upon which plaintiff bases her case determines whether
section 3-106 applies regardless of whether the condition of the property
caused her injury.”).

¶ 38 That brings us to
the subtle difference in the plain language of sections 3-106 and 3-107. Unlike
section 3-106, section 3-107 provides no exceptions for alternative theories of
liability. That is to say, for purposes of section 3-107, it does not matter
whether liability is based on conduct unrelated to the existence of a condition
of an access road or trail. Rather, section 3-107 applies if an injury is
simply “caused by a condition of” an access road or trail. 745 ILCS 10/3-107
(West 2014). Therefore, our determination that Sarah’s injury in this case was
caused by a “condition” of a “hiking trail” within the meaning of section
3-107(b) marks the end of our inquiry. By asserting that their alternative
theory of liability negates the application of section 3-107, plaintiffs are
placing the hayrack ahead of the mule team.

¶ 39 In sum, we affirm
the trial court’s ruling that Sarah’s injury was caused by a “condition” of the
Westmore Woods “hiking trail” within the meaning of section 3-107(b).
Therefore, the Park District is entitled to absolute immunity from liability
for Sarah’s injury. In so holding, we reject plaintiffs’ argument that the Park
District’s alleged conduct negates its ability to benefit from the absolute
immunity provided by section 3-107. Our discussion pertaining to section 3-106
is intended to ensure that sections 3-106 and 3-107 are interpreted
consistently and harmoniously and are governed by a single policy. See Wade
v. City of North Chicago Police Pension Board, 226 Ill. 2d 485, 512, 315
Ill.Dec. 772, 877 N.E.2d 1101 (2007).

¶ 40 III. CONCLUSION

¶ 41 The judgment of
the circuit court of Du Page County is affirmed.

¶ 42 Affirmed.

Justices Zenoff and
Birkett concurred in the judgment and opinion.