2015 IL 118254
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 118254)
KRISTINE O’TOOLE, Appellee, v. THE CHICAGO ZOOLOGICAL SOCIETY,
d/b/a Brookfield Zoo, Appellant.
Opinion filed September 24, 2015.
JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and
Burke concurred in the judgment and opinion.
OPINION
¶1 The sole issue in this appeal is whether defendant Chicago Zoological Society
(Society), doing business as Brookfield Zoo, is a “local public entity” under the
Local Governmental and Governmental Employees Tort Immunity Act (Act) (745
ILCS 10/1-101 et seq. (West 2010)), so that the Act’s one-year limitations period
applied and time-barred plaintiff Kristine O’Toole’s negligence complaint.
¶2 The trial court of Cook County concluded that the Society was a local public
entity and that O’Toole’s complaint was untimely. The appellate court reversed the
trial court’s decision and remanded for further proceedings. 2014 IL App (1st)
132652. For the reasons that follow, we affirm the appellate court’s decision.
¶3 BACKGROUND
¶4 In 2010, O’Toole tripped and fell on a paved pathway at Brookfield Zoo and
sustained injuries. Almost two years later in 2012, she filed a single-count
negligence complaint against the Society, alleging that it breached its duty to
inspect and maintain the pathway, proximately causing her damages. In lieu of an
answer, the Society filed a motion to dismiss under section 2-619 of the Code of
Civil Procedure. 735 ILCS 5/2-619 (West 2010). The Society argued, inter alia,
that the one-year limitations period of section 8-101(a) of the Tort Immunity Act
(745 ILCS 10/8-101(a) (West 2010)), rather than the two-year limitations period of
section 13-202 of the Code of Civil Procedure (735 ILCS 5/13-202 (West 2010)),
applied and time-barred O’Toole’s complaint. According to the Society, the Act’s
limitations period applied because the Society fell under the Act’s definition of
“[l]ocal public entity” as a “not-for-profit corporation organized for the purpose of
conducting public business.” 745 ILCS 10/1-206 (West 2010). The Society
asserted that its public business was maintaining a zoo on land owned by the Forest
Preserve District of Cook County (District), itself a local public entity.
¶5 In its motion to dismiss, the Society pointed to section 40 of the Cook County
Forest Preserve District Act, which provides:
Ҥ 40. The corporate authorities of forest preserve districts, having the
control or supervision of any forest preserves, may erect and maintain within
such forest preserves, under the control or supervision of such corporate
authorities, edifices to be used for the collection and display of animals as
customary in zoological parks, and may collect and display such animals, or
permit the directors or trustees of any zoological society devoted to the
purposes aforesaid to erect and maintain a zoological park and to collect and
display zoological collections within any forest preserve now or hereafter under
the control or supervision of such forest preserve district, out of funds
belonging to such zoological society, or to contract with the directors or trustees
of any zoological society on such terms and conditions as may to such corporate
authorities seem best, relative to the erection, operation and maintenance of a
zoological park and the collection and display of such animals within such
forest preserve, out of the tax provided in Section 41.
Such forest preserve district may charge, or permit such zoological society
to charge an admission fee. The proceeds of such admission fee shall be
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devoted exclusively to the operation and maintenance of such zoological park
and the collections therein. All such zoological parks shall be open to the public
without charge for a period equivalent to 52 days each year. All such zoological
parks shall be open without charge to organized groups of children in
attendance at schools in the State. The managing authority of the zoological
park may limit the number of any such groups in any given day and may
establish other rules and regulations that reasonably ensure public safety,
accessibility, and convenience, including but not limited to standards of
conduct and supervision. Charges may be made at any time for special services
and for admission to special facilities within any zoological park for the
education, entertainment or convenience of visitors.” 70 ILCS 810/40 (West
2010).
Section 41 of the Forest Preserve District Act authorizes the corporate authorities
of any forest preserve district to levy an annual tax upon property in the district to
construct and maintain such a zoological park. The proceeds of that tax must be
kept as a separate fund. 70 ILCS 810/41 (West 2010).
¶6 The Society also pointed to a 1986 agreement with the District, under which the
Society would “maintain and operate” a zoo in Cook County “to collect and exhibit
collections of animals and to promote the education and recreation of the people.”
In the agreement, the District agreed to “set apart” property for a zoo, and levy and
collect tax proceeds to support the zoo. The Society agreed to provide the animals
and collections and devoting all its “funds, income and donations to the
establishment, operation and development” of the zoo. The agreement continued:
“The Society shall operate and maintain [the zoo] and the buildings and
other structures and enclosures, and all other property in [the zoo], and in doing
so shall care for the animals and collections of animals and shall keep said
buildings and structures in a reasonable and proper state of repair and maintain
the same and the grounds within [the zoo] in a clean and sanitary condition. The
Society shall, from funds budgeted by the District under [the agreement], select
and provide all animals, equipment, materials and supplies necessary and
proper to carry out the purposes of this agreement, and shall have entire control
and management, of [the zoo], and its collections, and shall appoint, employ,
direct, control, promote or remove all persons engaged in the management, care
or operation of [the zoo], and shall fix and pay their respective salaries and
compensations.”
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The Society, “by virtue of *** having the entire control and responsibility and
management[,] as well as the operation and maintenance” of the zoo, was required
to procure a liability insurance policy naming the District as an insured.
¶7 The Society also agreed to submit an annual audit and an annual itemized
budget to the District. Under the agreement, the budget must be “passed upon by
the Commissioners of the District,” but any items in the budget that the
commissioners do not expressly reject or modify are considered approved. The
Society, however, “need not obtain the approval of the District as *** to
expenditures which it desires to make with monies derived from other sources than
the District,” and the Society can establish endowment and other funds from
donations and bequests that it receives.
¶8 The agreement further provided that the District and its department heads
would have access to the zoo at all times “for general police visitation and
supervision, and for all other lawful purposes.” Under the agreement, the Society
could not mortgage, encumber, sell, or remove any of its property without the
District’s consent, and the Society could not cut down or remove any trees, except
with the express authority of the District. Additionally, “All property purchased by
the Society with funds provided by the *** District shall be the property of [the]
District,” but the Society could improve its collections through the exchange or sale
of animals not needed for exhibition. It could also improve its collections using
proceeds from concessions at the zoo, “with the approval of the District at such
rates and for such time as it may deem best,” and from parking fees set in the
agreement. The agreement set entrance fees, as well, and stated that admission
should be free one day per week, as required by statute, and “at all times for school
groups.”
¶9 The Society and the District agreed that the president of the District’s board of
commissioners would be an ex officio member of the Society’s board of trustees,
and the president would select three other members of the District’s board to serve
as ex officio governing members of the Society. In addition, the agreement
provided that every 20 years, either party could choose to terminate the contractual
relationship.
¶ 10 In her response to the Society’s motion to dismiss, O’Toole argued that the
Society was not a local public entity under the Act because it did not conduct public
business. O’Toole relied upon the Society’s response to her request to admit facts,
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in which the Society conceded that it was not a department or agency of any
government; that it received less than half of its funding from tax proceeds; that its
employees were not appointed or paid by the District and were not covered by any
public pension or workers compensation funds; and that the vast majority of its
trustees were not District officials. O’Toole also noted that the Society complies
with the Occupational Safety and Health Act (OSHA), which does not apply to
government employers. See 29 U.S.C. § 652(5) (Supp. IV 1998).
¶ 11 Following a hearing, the trial court granted the Society’s motion to dismiss with
prejudice. 1 O’Toole appealed.
¶ 12 The appellate court reversed and remanded for further proceedings. 2014 IL
App (1st) 132652. The appellate court noted that the term “local public entity” in
section 1-206 includes both governmental bodies and certain not-for-profit
corporations. Id. ¶ 13. The court then reviewed Carroll v. Paddock, 199 Ill. 2d 16
(2002), Brugger v. Joseph Academy, Inc., 202 Ill. 2d 435 (2002), and Hubble v.
Bi-State Development Agency of the Illinois-Missouri Metropolitan District, 238
Ill. 2d 262 (2010), where this court interpreted that section to require that a
not-for-profit corporation must conduct public business in order for the Tort
Immunity Act to apply to its activities. 2014 IL App (1st) 132652, ¶¶ 14-19. The
appellate court recognized a distinction between public business and public
interest, stating, “While the 1986 agreement stated that defendant [Society] was
organized to operate a zoo for the instruction and recreation of the public, the zoo’s
furtherance of the public’s interest is not synonymous with conducting public
business within the meaning of the Tort Immunity Act.” Id. ¶ 20. According to the
appellate court, a key inquiry is control, because a not-for-profit corporation does
not conduct public business absent evidence of local government control. Id. ¶ 15
(citing Carroll, 199 Ill. 2d at 26).
¶ 13 The appellate court concluded that the Society had not demonstrated that its
activities were controlled by the District. 2014 IL App (1st) 132652, ¶ 22. The court
noted that, pursuant to the Forest Preserve District Act, the District delegated
1
In its motion to dismiss, the Society also argued that section 3-106 of the Tort Immunity Act
(745 ILCS 10/3-106 (West 2010)) provided immunity. The transcript from the hearing on that
motion does not appear in the record before us, and the handwritten order by O’Toole’s trial
attorneys does not explain the court’s reasoning. The parties seem to agree that the court dismissed
the complaint as untimely under section 8-101(a) of the Act. Thus, the substantive immunity issue is
not before us in this appeal.
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control of the zoo’s daily operations, including all maintenance and personnel
decisions, to the Society. Id. The court further noted that only four members of the
District’s board sat on the Society’s board or served among its governing members;
90% of the Society’s leadership was not employed by the District. Id. ¶ 23. The
court highlighted the fact that less than half of the Society’s funding derived from
the taxes levied and collected by the District. Id. ¶ 24. And the Society was not
subject to regulations typical of governmental units, like those concerning public
pensions and workers’ compensation benefits, but was subject to OSHA. Id. ¶ 25.
While the District has “some limited oversight” over the Society, that did not
amount to the control contemplated by the term public business. Id. ¶ 28.
¶ 14 We granted the Society’s petition for leave to appeal. See Ill. S. Ct. R. 315(a)
(eff. Jan. 1, 2015). We also allowed the District, the Chicago Park District, the
Lincoln Park Zoological Society, and the Chicago Horticultural Society to file an
amicus curiae brief in support of the Society, and we allowed the Illinois Trial
Lawyers Association to file an amicus curiae brief in support of O’Toole. See Ill. S.
Ct. R. 345(a) (eff. Sept. 20, 2010).
¶ 15 ANALYSIS
¶ 16 Our review of a dismissal under section 2-619(a)(5) of the Code of Civil
Procedure (735 ILCS 5/2-619(a)(5) (West 2008)) for failure to file a claim within
the applicable statute of limitations is de novo. Raintree Homes, Inc. v. Village of
Long Grove, 209 Ill. 2d 248, 254 (2004). Here, the parties’ positions are clear.
O’Toole argues that the Society is not a local public entity under section 1-206 of
the Tort Immunity Act, so the one-year limitations period of section 8-101(a) of
that Act did not apply and time-bar her complaint. The Society argues that it is a
local public entity, and the Act’s one-year limitations period applied.
¶ 17 Section 1-206 provides:
“§ 1-206. ‘Local public entity’ includes a county, township, municipality,
municipal corporation, school district, school board, educational service region,
regional board of school trustees, trustees of schools of townships, treasurers of
schools of townships, community college district, community college board,
forest preserve district, park district, fire protection district, sanitary district,
museum district, emergency telephone system board, and all other local
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governmental bodies. ‘Local public entity’ also includes library systems and
any intergovernmental agency or similar entity formed pursuant to the
Constitution of the State of Illinois or the Intergovernmental Cooperation Act
as well as any not-for-profit corporation organized for the purpose of
conducting public business.” (Emphasis added.) 745 ILCS 10/1-206 (West
2012).
Thus, section 1-206 defines the term “local public entity” broadly with an extensive
list of such entities. See Hubble, 238 Ill. 2d at 269. That list includes some
not-for-profit corporations—namely, those that perform “public business.”
¶ 18 We interpreted the term “public business” definitively in Carroll and applied
that definition in Brugger, and those cases guide our analysis here. In Carroll, the
plaintiff brought his son to a not-for-profit community hospital, after he attempted
suicide. The son was discharged that day, and the plaintiff took him to a
not-for-profit mental health center the next day. The son committed suicide at the
center. Two years later, the plaintiff filed a wrongful death complaint against the
hospital and center. The hospital and the center filed motions to dismiss under
section 2-619(a)(5), contending that they were “local public entities” under section
1-206 of the Act, and, consequently, the plaintiff’s complaint was untimely under
section 8-101(a). The trial court granted those motions and dismissed the
complaint. The plaintiff appealed, and the appellate court reversed and remanded.
The appellate court held that public funding is a determinative factor in deciding
whether a not-for-profit corporation falls under the Act’s definition. Because the
hospital and the center were not “almost entirely government funded,” they were
not local public entities, and the Act’s limitations period did not apply. Carroll v.
Paddock, 317 Ill. App. 3d 985, 994-95 (2000).
¶ 19 This court affirmed, stating that the appellate court placed too much emphasis
on government funding, and not enough emphasis on “public business,” the focus
of the statutory language. Carroll, 199 Ill. 2d at 25. We discussed the hospital and
the center, and identified some relevant factors for deciding if a not-for-profit
corporation is also a local public entity. No factor is more important than control:
“Without evidence of local governmental control, it cannot be said that a
not-for-profit corporation conducts ‘public business’ ***.” Id. at 26. Indicative of
such control would be evidence that the entity remains subject to state statutes, such
as the Open Meetings Act (5 ILCS 120/1.01 et seq. (West 2010)) and the Freedom
of Information Act (5 ILCS 140/1 et seq. (West 2010)), with which governmental
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units must comply, or even “local ordinances that dictate the means and methods to
be used by the not-for-profit corporation in conducting its business.” Carroll, 199
Ill. 2d at 26-27. Evidence that members of the county board or another governing
body control the corporation would also be relevant in this regard. Id. at 27. We
summarized:
“Public business is the business of government and a local public entity
must either be owned by or operated and controlled by a local governmental
unit. Immunity under the Act only attaches to liability arising from the
operation of government. 745 ILCS 10/1–101.1 (West 2000). Therefore, a
not-for-profit is involved in the operation of the government’s public business
if and only if the not-for-profit is tightly enmeshed with government either
through direct governmental ownership or operational control by a unit of local
government.” Id.
¶ 20 Nine months later, we decided Brugger, strongly reaffirming Carroll. In
Brugger, a student was injured during physical education class at a not-for-profit
private academy, which provided services for emotionally handicapped youth. The
student filed a personal injury complaint against the academy and the district,
alleging willful and wanton misconduct by the academy and the district. The
academy eventually filed a motion for summary judgment, contending that it was a
local public entity under section 1-206 of the Act, and, therefore, entitled to the
immunity offered by section 3-108(a). 745 ILCS 10/3-108(a) (West 2010). The
trial court granted the academy’s motion. The student appealed, and the appellate
court reversed and remanded.
¶ 21 This court again affirmed, finding no merit in the academy’s arguments that
Carroll was wrongly decided. Indeed, we backed both “our method of construction
in Carroll and our interpretation of section 1-206.” Brugger, 202 Ill. 2d at 445. We
repeated our holding in that case:
“[A]ny not-for-profit corporation seeking tort immunity under that section must
demonstrate that it conducts ‘public business’ by establishing that it pursues ‘an
activity that benefits the entire community without limitation’ [citation] and
that it is ‘tightly enmeshed with government either through direct governmental
ownership or operational control by a unit of local government.’ ” (Internal
quotation marks omitted.) Id. (quoting Carroll, 199 Ill. 2d at 25-26, 27).
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¶ 22 Regarding the academy, we determined that it was not tightly enmeshed with
government because it was not controlled by a unit of local government. First,
though extensive state and local regulation accompanied its contracts with public
school districts, the academy was bound by such regulation only because it chose to
do business with those districts. Brugger, 202 Ill. 2d at 447. It could escape
regulation if it avoided those contracts: “Truly public school facilities do not have
this option.” (Emphasis in original.) Id. at 448. Second, and more importantly, the
academy never ceded “operational control” to the public school districts and
maintained autonomy in its daily work, free from government decisionmaking. Id.
at 447. The academy’s board was comprised solely of members acting in their
individual capacities, and “[n]o governmental entity or public official acting in an
official capacity is represented on the board.” Id. at 447-48. Finally, the court
addressed funding, and concluded that money received by the academy was
“simply revenue obtained from tuition payments made by the contracting public
schools,” not direct payments from the state budget. Id. at 448.
¶ 23 Our case law unmistakably links section 1-206 of the Act, which contains the
term “public business,” with section 1-101.1 of the Act, which states that the Tort
Immunity Act’s overarching purpose is to shield local public entities and their
employees from liability arising out of “the operation of government.” 745 ILCS
10/1-101.1 (West 2012); see Carroll, 199 Ill. 2d at 27. A not-for-profit corporation
only conducts the operation of the government’s public business if it is controlled
by the government. Id. at 26. Stated differently, the key inquiry in cases like this is
whether the not-for-profit corporation seeking tort immunity remains subject to
“ ‘operational control by a unit of local government.’ ” See Brugger, 202 Ill. 2d at
447 (quoting Carroll, 199 Ill. 2d at 27). With this understanding, we turn to the
facts of this case.
¶ 24 The District maintains control over the real property under the zoo, while the
District and the Society share control over the other property of the zoo. Under the
agreement, the District must authorize the Society to sell, remove, or encumber any
of the zoo’s buildings, enclosures, trees, or animals. In addition, the agreement
allows the District to access the zoo at all times for general police visitation and
supervision.
¶ 25 Other provisions in the agreement, however, indicate that the Society controls
the daily operations of the zoo. The agreement allows the Society to maintain and
operate a zoo, and instructs it to devote its funding to the operation and
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development of a zoo. Under the agreement, the Society “shall operate and
maintain” the zoo, its buildings, and other property in a proper state of repair and in
a clean and sanitary condition. The Society “shall have entire control and
management” of the zoo, and “shall appoint, employ, direct, control, promote or
remove all persons engaged in the management, care or operation” of the zoo.
Those persons are employees of the Society, and they do not participate in public
pension or workers’ compensation funds. And because the Society has “entire
control” of the zoo, it must obtain liability insurance to protect the District. Ceding
such broad operational control to the Society is consistent with section 40 of the
Forest Preserve District Act, which authorizes the District either to permit the
leaders of a zoological society to erect and maintain a zoo on District property
funded by the society, or to contract with the leaders of a zoological society to erect,
maintain, and operate a zoo on District property funded by tax revenues. See 70
ILCS 810/40 (West 2010).
¶ 26 All property purchased with tax revenues belongs to the District, but, as the
Society conceded below, taxes provide less than half the zoo’s funds. Presumably,
the remaining funds come from a combination of sources—admission fees, as set in
the agreement, concessions, as approved by the District, and donations and
bequests, which the Society uses solely for its own purposes. Under the agreement,
the District does have a financial oversight role. The Society must submit to annual
audits, and submit annual budgets to the District. However, the District does not
approve those budgets, and instead “pass[es] upon” them, and any items not
expressly rejected are considered approved. Additionally, the president of the
District’s board of commissioners is a member of the Society’s board of trustees,
and three other members of the District’s board serve as governing members of the
Society. Those positions are ex officio, and 90% of the Society’s governing
members are not District board members.
¶ 27 The parties do not discuss whether the Society is governed by state statutes like
the Open Meetings Act and the Freedom of Information Act, or any local
ordinances, but O’Toole notes that the Society complies with OSHA, which does
not apply to government employers. OSHA compliance was the issue in Brock v.
Chicago Zoological Society, 820 F.2d 909 (7th Cir. 1987). There, the federal
Occupational Safety and Health Review Commission concluded that the Society
was exempt under OSHA as “a political subdivision” of Illinois. The Circuit Court
of Appeals reversed that decision. Although its analysis under federal law differed
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in some respects from our analysis under the Tort Immunity Act, there are notable
parallels.
¶ 28 Pursuant to OSHA, the Secretary of Labor uses a two-part test to determine
whether an entity is a political subdivision of a State, and, therefore, exempt from
regulation. First, the entity must be created by the State, so as to constitute a
department or administrative arm of the government. Second, the entity must be
administered by individuals who are controlled by public officials and responsible
to those officials, not the public. Both parts of that test parallel the operational
control prong of Carroll. In Brock, the appeals court held that “[t]hough state
officials were instrumental in the founding of the Society, they deliberately
designed it as a private entity to be operated independently of the District and other
state agencies.” Id. at 911. The court further held that, although the Society was
financially dependent on the District, the District lacked “direct control over zoo
management, particularly with regard to personnel matters.” Id. at 911-12. That is,
“[t]he District has no appointment and removal power and no direct role in the
zoo’s operation and maintenance.” Id. at 912. The appeals court even addressed the
Society’s status as a not-for-profit corporation:
“The Society’s private, nonprofit corporate structure effectively insulates
its officers from District control over management decisions. The officers, who
handle the zoo’s day-to-day operations, owe their positions to the trustees and,
indirectly, to the governing members. Among these latter two groups the
District enjoys only nominal representation. Over 97% of the trustees and over
98% of the governing members are private citizens unbeholden to the District
or any other state agency.” Id.
¶ 29 The appeals court noted that the District exercises no control over the terms and
conditions of employment for zoo employees. Id. at 913. The District does not
negotiate with the employees or their union, and it does not treat them as public
employees. Id. More importantly, “it does not control zoo premises.” Id. As the
Brock court noted, the conditions which led to an OSHA citation were wholly the
Society’s responsibility. Id. And like that court, we can find nothing to suggest that
the District has used its purse-string powers to usurp the Society’s
“contractually-secured” control over zoo management. Id. “Absent direct evidence
of control we are unwilling to infer that the Society’s reliance on public funding has
stripped it of its private nature.” Id.
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¶ 30 We hold that the District does not exercise operational control over the Society,
so the Society is not a local public entity under section 1-206 of the Act and the
one-year limitations period of section 8-101(a) did not apply and time-bar
O’Toole’s complaint.
¶ 31 CONCLUSION
¶ 32 For the reasons that we have stated, we affirm the decision of the appellate court
and remand for further proceedings.
¶ 33 Appellate court judgment affirmed.
¶ 34 Cause remanded.
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