TO: IAPD Member Agencies, Board Members, Professionals and Associate Members
FROM: Peter Murphy, J.D., CAE, IAPD President and CEO
Jason Anselment, IAPD Legal/Legislative Counsel
Legal News is also available to IAPD members only under the "Legal Assistance” section of the IAPD's website at
IAPD AND IML JOIN EFFORTS TO PROTECT LOCAL GOVERNMENT IMMUNITY
The Illinois Association of Park Districts and the Illinois Municipal League have filed an amicus brief in the First District Appellate Court in a significant case affecting units of local government. At issue is whether the Cook County Forest Preserve (Forest Preserve) is liable for injuries caused by stray pit bulls on public property. The case is Cieslewicz, et al. v. Forest Preserve of CookCounty, Nos. 1-10-0801 and 1-10-0812, First Appellate District.
In this case, two women were attacked by stray pit bulls while jogging on the Forest Preserve's property. One of the plaintiffs died from her injuries and another sustained serious injuries. Because the Forest Preserve owned the property where the attacks occurred, the plaintiffs sued the Forest Preserve claiming it was also the "owner” of the stray pit bulls under the Animal Control Act. Plaintiffs also argue that the Forest Preserve is liable under general tort law because they believe the Tort Immunity Act does not apply.
There is no indication that the Forest Preserve took any action indicating ownership of the dogs such as controlling or caring for the dogs. In fact, while there may have been previous reports to the Forest Preserve concerning stray dogs in the months preceding the incidents, there is no evidence that the Forest Preserve had ever seen the specific dogs involved in the attack. The Forest Preserve does not provide animal control services and instead utilizes the City and County to provide these services.
Although the facts in the case are tragic, holding the public liable for any injury caused by a stray dog on public property could subject our members, and ultimately taxpayers, to nearly limitless liability. Because local government could be substantially affected by the outcome of this litigation, the IAPD joined with the IML to protect the interests of all our members.
FEATURED MEMBER INQUIRY
The IAPD often receives legal inquiries from member agencies that may be of interest to other members. We have recently received the following question from several member agencies.
Q. Is the district still required to publish its annual statement of receipts and disbursements in light of SB 1686 (Public Act 97-146)?
A. Until January 1, 2012, yes.
Beginning next year, the provisions in SB 1686 (Public Act 97-146) will allow park districts, conservation districts and forest preserves to publish a short "Notice of Availability” of their annual audit in lieu of publishing their annual statement of receipts and disbursements. However, this change does not take effect until January 1, 2012. Therefore, until the end of this calendar year, districts must continue to satisfy the newspaper publication requirements contained in the Public Funds Statement Publication Act, 30 ILCS 15/1 et seq., by publishing either their annual statement of receipts and disbursements or their audit.
Click here(members only) for the IAPD's summary of the requirements of the Public Funds Statement Publication Act, which is also located in the Legal Resources section of IAPD's website.
RECENT COURT DECISIONS
Tort Immunity
Thurman v. Champaign Park District,2011 IL App (1st Dist.) 101024 (August 10, 2011)
This case involves the successful application of Section 3-106 of the Tort Immunity Act by the Champaign Park District (District) to avoid protracted litigation by obtaining summary judgment and dismissal prior to trial.
The District operated an indoor tennis facility. The primary plaintiff alleged that he was severely injured while playing tennis at the facility when he ran into a structural steel beam that was placed at an angle and hidden by a tarp. Plaintiff claimed that the District failed to properly identify the structural beams, provide warnings signs of the dangerous condition, provide a reasonably safe tennis court area, use ordinary care for his safety and adequately pad the beams, thereby causing his injuries.
The District responded by arguing, among other things, that Section 3-106 of the Tort Immunity Act immunized it from mere negligence claims related to the condition of recreational property and that the allegations were insufficient to establish willful and wanton misconduct. The trial court agreed with the District and the appellate court affirmed.
In ruling in favor of the District, the court rejected the plaintiffs' argument that a material question of fact as to whether the District's conduct was willful and wanton precluded summary judgment. The court noted that at the summary judgment stage, plaintiffs are required to both allege through well-pled facts and establish that their injuries resulted from willful and wanton conduct. In other words, personal injury plaintiffs are not entitled to a trial just because they simply label a defendant's conduct as willful and wanton.
For example, the plaintiffs in this case did not allege any facts showing that the District had prior notice of injuries caused by the beams. They provided no detail on how the accident occurred or "even the distance between the tarp and structural steel beam.” Their complaint also failed to show that the District acted intentionally to cause the harm or that the District had any knowledge of the alleged danger. On the contrary, the facts in the record established that the District was not aware of any similar incident.
Because the allegations did not amount to willful and wanton conduct, the District was entitled to summary judgment pursuant to Section 3-106 of the Tort Immunity Act.
Waiver and Release
Johnson v. Salvation Army,2011IL App (1st dist.) 103323 (August 12, 2011)
IAPD member agencies often use waivers and releases as part of their volunteer applications and program participation forms. Although this case does not involve a unit of local government, it does provide a good discussion of some of the legal principles relating to exculpatory clauses contained in waivers and releases.
In order to participate in one of the defendant's programs, plaintiff was required to complete an application that included an exculpatory clause, or waiver of release and liability. The plaintiff was injured while riding as a passenger in defendant's vehicle. At the time of the injury, plaintiff was participating in the program. When the plaintiff sued for his injuries, the defendant argued that the suit should be dismissed because plaintiff had signed the waiver and release of liability in his program application. The plaintiff replied to this affirmative defense by arguing that the waiver was unenforceable because it violated public policy and that the accident was not covered by the language in the waiver and release.
The court found for the defendant. In rejecting plaintiff's arguments, the court reiterated many of the guiding principles surrounding waivers and releases.
An exculpatory agreement constitutes an express assumption of risk wherein one party consents to relieve another party of a particular obligation. Generally, exculpatory agreements are enforceable unless: (1) it would be against the settled public policy of the state to do so; or (2) there is something in the social relationship of the parties which militates against upholding the agreement. . . . An agreement in the nature of a release or exculpatory clause is a contract, and the legal effect is to be decided by the court as a matter of law. (internal citations omitted)
The court firstfound that the exculpatory agreement at issue did not violate public policy. The plaintiff was not an employee of the defendant and he voluntarily chose to avail himself of the defendant's program, i.e., he was not economically compelled to participate and could have found other alternatives for the services. Moreover, the plaintiff's agreement to release the defendant from any liability was part of the consideration he gave in exchange for defendant's services.
With regard to the second claim, the application form stated that the plaintiff agreed to hold defendant free and harmless from any and all liability in connection with his participation in the program should any accident occur. The plaintiff argued that this language was ambiguous and did not contain unequivocal language necessary to be effective. The court also rejected that claim stating that the clause sufficiently applied to plaintiff's participation in the program, as a whole, and there was no limitation as to the physical or geographical location at which he may be injured.
An exculpatory agreement must contain clear, explicit, and unequivocal language referencing the type of activity, circumstance, or situation that it encompasses and for which the plaintiff agrees to relieve the defendant from a duty of care. However, the parties need not have contemplated the precise occurrence which results in injury. The injury must only fall within the scope of possible dangers ordinarily accompanying the activity and, therefore, reasonably contemplated by the parties. (internal citations omitted)
This case demonstrates that standard waivers and releases can be effective, but it also shows that they are often challenged. Waivers and releases are fraught with many other pitfalls not raised by this case. Therefore, agencies are well advised to work with their local counsel to ensure these documents will withstand legal challenges.
UPCOMING EVENTS
Legal Symposium, Thursday, October 27, 2011
The IAPD Legal Symposium will be held on October 27 at HamburgerUniversity in Oak Brook. Sessions include:
- Employment and Labor Law Update
- Private Users and Private Payments…Are Your Tax Exempt Bonds in Jeopardy?
- Current Issues in Construction Contracts and the New Design-Build Option
- Handling FMLA Scenarios and Recent Court Decisions
- Legislative Year in Review: New Laws Affecting IAPD Member Agencies
- Is Your Agency Protected? 2011 Tort Liability Cases that Provide the Guideposts
Please mark your calendar to attend. To obtain additional information or to register for this event, click here.