Recreational Property Negligence Essay

This essay has a total of 1548 words and 7 pages.

Recreational Property Negligence

M E M O R A N D U M

TO:

FROM:

DATE:

RE: Cole Gershwin- Immunity for Negligence on Recreational Property

_________________________________________________________

I. STATEMENT OF FACTS
Our Client, Mr. Cole Gershwin, is considering suit against the Chicago School District for
injuries sustained as a result of tripping in a pothole. Gershwin, a teacher at Washington
Elementary School, alleges that on October 10, 2000 at 12:20 pm, he was walking from the
school to the teacher's parking lot, and tripped in a pothole and fell.

The walkway where Gershwin fell is adjacent to a parking lot that was converted from a
portion of the playground area. The walkway is used by teachers to travel to and from the
parking lot. The walkway is marked with yellow stripes and is bordered on the southern
edge by orange construction cones that the school is going to replace with additional
fencing. There is a sign on the fence separating the parking lot from the walkway that
reads: "Walkway for Teachers Only." Students occasionally use the walkway as a "safe" zone
for games of tag.

II. QUESTION PRESENTED
Whether school property, classified as recreational and cursorily used by students during
their recreation, immune from civil action under the Illinois Tort Immunity Act 3-106;
when the school has the area sectioned off implying that it does not intend for the
property to be used recreationally.

III. CONCLUSION
No. The elements necessary to make the property recreational are not satisfied in this
situation. The school district shows no intended use of the property for recreational
purposes, nor does it show permitted use of the property for recreational purposes.
Although the walkway is occasionally used by children for games of tag, this is incidental
usage of the property, and thus § 3-106 is inapplicable. Additionally, the primary
purpose of the walkway is to facilitate travel to and from the parking lot, making the
walkway nonrecreational in character.

IV. DISCUSSION
Immunity from liability is determined by examining the character of the property in
question. In order to establish immunity, the school board must show intent for the
property to be used for recreation, or that the property is permitted to be used for
recreational purposes, where that use is not incidental. Factors that weigh on the court's
decision to identify property as recreational include the overall usefulness of the
walkway to facilitate access to the recreational facility, the primary purpose of the
walkway, and viewing the property in question as a "unified whole." Consideration of these
factors by the court should lead to a conclusion that the walkway is not recreational
property, and thus not protected under § 3-106.

A. Overall Usefulness of Property as a Unified Whole
Structures that increase the overall usefulness of a facility are immune from liability
claims under § 3-106 of the Illinois Tort Immunity Act. In Sylvester v. Chicago Park
District, The Illinois Supreme Court held that immunity under § 3-106 may apply to
structures or facilities that are not in themselves recreational, but "that increase the
usefulness of public property intended or permitted to be used for recreational purposes."
Sylvester v. Chicago Park District, 689 N.E.2d 1119, 1124 (Ill. 1995). The Sylvester court
reasoned that although the walkway was not a part of Soldier Field, and not in itself
recreational, Soldier Field is recreational and the walkway "increased the usefulness",
and is thus an extension of the recreational purpose. Id. at 1124. The walkway at
Washington Elementary School is used to facilitate travel to and from the parking lot by
teachers. The walkway does not serve as a means to gain access to the playground, and does
not "increase the usefulness" of the playground. In contrast to the Sylvester case, the
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