specially concurring:
My colleagues hold that plaintiffs fall occurred on "property intended or permitted to be used for recreational purposes” as provided in section 3 — 106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 106). Therefore, they find that the Park District is not liable for injuries which the plaintiff sustained. I concur with the majority’s conclusion that the property on which plaintiff fell is intended or permitted to be used for recreational purposes. However, I believe that the majority’s application of the increased usefulness test will provide broader immunity than the legislature intended.
Specifically, the majority asserts that the Park District intended for and permitted football fans to park in the lots adjacent to Soldier Field and use the walkways to gain access to the stadium. Because plaintiff possessed a ticket to attend the football game and was injured while walking to the game, the majority concludes that the location of plaintiffs fall was part of the recreational purpose of Soldier Field.
The majority bases its reasoning on appellate court cases which have held that, taken as a whole, a facility or structure will be considered to fall within the scope of section 3 — 106 if it increases the usefulness of public property intended or permitted to be used for recreational purposes. See Conoway v. Hanover Park Park District, 277 Ill. App. 3d 896, 900 (1996); Kirnbauer v. Cook County Forest Preserve District, 215 Ill. App. 3d 1013, 1022-23 (1991). This test was first espoused in Annen v. Village of McNabb, 192 Ill. App. 3d 711 (1990). In Annen, the plaintiff was using a restroom located within a park when a sink fell from a wall, seriously injuring her. The court found that the purpose of section 3 — 106 manifested an intent to include restroom facilities within a park as part of the park itself. The court stated:
"A restroom facility located within a park is a part of the park. While a restroom building itself is not intended to be used for recreational purposes, it allows a park user to continue using the park without having to leave the park to use restroom facilities. This increases the usefulness of the park and advances the legislative purpose.” Annen, 192 Ill. App. 3d at 713.
The majority in the instant case adopts the reasoning in Annen and concludes that, "[although the walkways and parking lots adjacent to Soldier Field may not be primarily recreational, Soldier Field itself is certainly recreational and these facilities increase its usefulness.” 179 Ill. 2d at 508.
Although the increased usefulness test provides a fairly straightforward means to determine whether certain property is subject to section 3 — 106 immunity, I do not believe that the test should be so mechanically applied such that any consideration of the injured party’s use of the property is ignored. In fact, we considered limiting the scope of the "increased usefulness” test in Bubb, where we stated:
"Providing immunity to any public property where recreation might occur would eviscerate the duty codified in section 3 — 102. *** [A]t some point, the use of public property for recreation may be so incidental that section 3 — 106 does not apply.” Bubb v. Springfield School District 186, 167 Ill. 2d 372, 382 (1995).
I believe that this case is one in which plaintiffs use of the property was so incidental that section 3 — 106 should not apply. The record reveals that the plaintiff parked her car in the McCormick Place parking lot, approximately one mile from Soldier Field. However, the injury occurred as she was crossing the south parking lot, which is located across the street from Soldier Field. The parking lot where plaintiff was injured does increase the usefulness of Soldier Field; the lot provides convenient parking for the public. However, plaintiff’s actual use of the property was incidental, as she was merely walking across the lot to reach Soldier Field. It is only happenstance that the lot is available to increase the use of Soldier Field. Plaintiffs presence on the lot had nothing to do with the lot’s availability for parking. Plaintiff merely chose the lot as the path by which she could access Soldier Field. Had plaintiff chosen a different path to access Soldier Field, that property, simply because it provided convenient access, would not merit section 3 — 106 immunity.
I do not believe that the legislature intended to expand the scope of section 3 — 106 to provide immunity to governmental units for use that is merely incidental to the purpose of the property. For all practical purposes, unless the increased usefulness test is limited in its application and scope, the duty of a governmental unit to exercise even ordinary care will be diminished.