According to the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101), the statute of limitations for personal injury actions against “local public entities” is one year. So is a Zoo a “local public entity”? That’s the question the Illinois Supreme Court debated during its May term, hearing oral argument in O’Toole v. The Chicago Zoological Society. Our detailed report of the facts and lower court holdings in O’Toole is here.

O’Toole arises from a slip-and-fall at the Zoo. The defendant moved to dismiss on the grounds that the complaint, which was filed nearly two years after the accident, was untimely. The Circuit Court granted the motion to dismiss, but the Appellate Court reversed.

Counsel for the Zoo led off the argument, arguing that the Appellate Court had misapplied the Supreme Court’s test in Carroll v. Paddock by concluding that the Zoo was not conducting public business. The first element of the appropriate test is whether the entity is benefiting the entire community without limitation. The Zoo clearly meets that element; it is required to offer free public access, a mandate private corporations don’t have. Also, the Zoo is tightly enmeshed with the government through operational control. Counsel argued that the Appellate Court had failed to appreciate that a not-for-profit corporation such as the Zoo has no owners, governmental or otherwise. With respect to a non-profit, the ownership prong of Carroll must be based on public ownership of the property critical to the not-for-profit purpose for which the corporation was organized. Justice Thomas asked whether the case was about a balancing between factors the plaintiff points out and the Zoo’s. Counsel answered that the test was a totality of circumstances. The relevant factors clearly meet the ownership prong of Carroll, counsel argued. The Forest Preserve District owns all the land on which the Zoo is built, and has since 1923. It also owns all the property and collections. A tax levy specifically intended by law to meet the needs of the Zoo finances the operation. Justice Theis asked whether the record reflects the percentage of taxpayer funding. Counsel said the percentage was fifty percent or a bit less, but the level wasn’t important. The issue is whether the Zoo is organized for the purpose of doing public business. The Zoo exists today, counsel explained, because of a 1923 law, and the expenditure of tax funds for its establishment, operation and maintenance. The Zoo is required to submit an itemized budget to the Forest Preserve District. The Zoo’s books are open to inspection by an auditor. The Forest Preserve District has access to the grounds, building and enclosures, and the Zoo cannot sell or mortgage animals or property without the District’s written consent. Justice Freeman asked whether there was any significance to the fact that the Zoo has claimed to be outside the freedom of information act. Counsel responded that the Act applies to public bodies, but the Tort Immunity Act is much broader, applying to a non-profit entity which conducts public business. So it is entirely consistent to be both outside the freedom of information act and inside the Tort Immunity Act. Justice Burke asked what other institutions would be affected by a decision that the Zoo is within or outside the Immunity Act. Counsel suggested the Art Institute, the Field Museum, the Chicago Botanical Gardens and the Museum in the Parks – there are a number of similar relationships. Counsel argued that each of the elements of an entity conducting public business were satisfied – the Zoo is organized to benefit the entire community without limitation; it is tightly enmeshed with the government through the government’s ownership of property and funding; and the government has direct operational control over fiscal matters. Counsel argued that the test could be resolved through Carroll. The test only needed to be refined by recognizing that ownership of land, funds, facilities and the personal property essential to the non-pecuniary purposes for which the entity is organized amounted to the same thing as ownership of a corporation when one is dealing with a non-profit. Justice Freeman asked counsel if he was inviting the Court to overrule Carroll v. Paddock. Counsel answered that the defendant is asking the Court to apply Carroll properly. The Zoo is simply saying that “ownership” of a non-profit is a meaningless concept. Justice Freeman asked whether the legislature should amend the Tort Immunity Act. Counsel answered that the legislature always had that option, but it has seen fit not to. The case presents unique facts not found in Carroll, counsel argued. The Zoo has universal public access without cost, and funding through a special tax. No other case has ever addressed such a fact pattern.

Counsel for the plaintiff followed, arguing that the Zoo was not a local public entity. Counsel argued that the Court could not get to where the Zoo wanted to go without overruling Carroll. The statute says that not-for-profits must be conducting public business, but zoos aren’t a traditional government function, counsel argued. Counsel conceded that the Forest Preserve District owns the property and structures, but the relationship amounted to landlord-tenant, not government control. Justice Burke asked whether the Forest Preserve asked the Zoo to run the property, or the Zoo asked the Forest Preserve. Counsel responded that they were started at about the same time. The legislature wanted an independent entity to run the Zoo on forest preserve land, but the Zoo is a private corporation. Justice Burke pointed out that the public pays, through the Forest Preserve, for the entity to run the Zoo. Counsel answered that although courts have said that 65% ownership isn’t enough, the public ownership of the Zoo was less than 50%. Justice Freeman noted that the Forest Preserve District is represented on the Zoo’s governing board and approves the annual budget. Counsel conceded that the contract says that the Forest Preserve has the right to look at the budget. There was no evidence in the record that the Forest Preserve District has ever done anything to contest anything the Zoo wants to do. Justice Theis asked where the facts were coming from – what facts did the Court need to look at? Counsel answered that the only operative facts in the record were the requests to admit and the contract between the Zoo and the Forest Preserve. The Chief Justice asked whether it mattered what a not-for-profit is doing in applying the standards. Counsel answered that it’s really important. That’s the Carroll test – whether the entity is engaged in a traditional governmental function. Operating a Zoo isn’t a traditional governmental function. Chief Justice Garman asked what about running a museum? Counsel said that’s why the legislature specifically included museums in the list of the local public entities in the Tort Immunity Act – it’s not a traditional function of government, and thus wouldn’t fall under the statute unless enumerated. Justice Burke asked whether the Zoo has a responsibility of providing free admission days for the public. Counsel said yes, and Justice Burke asked who had mandated that. Counsel explained that according to the statute authorizing Forest Preserve Districts to have zoos on their property, the Zoo must be open to the public one day a week. Justice Kilbride asked whether the zoos could remain closed otherwise. Counsel responded that Zoo management can determines rules and requirements for people entering the property. Clearly the government isn’t exercising any control over this property, counsel argued.

In rebuttal, counsel for the Zoo argued that the Tort Immunity Act has abolished the concept of a government function. The test under Carroll is conducting public business, not what is and isn’t a traditional government function. To qualify, the entity must be owned, operated or controlled by local government, and must benefit the entire community without limitation. The statute doesn’t specifically mention museums; it mentions museum districts, and that’s different. The Zoo is asking the Court to apply Carroll, counsel argued, not to overrule it. The Zoo is open year round for organized groups of school children, because it has an educational function. Justice Theis asked if the Forest Preserve District has ever vetoed any action of the Zoo. Counsel answered that the District has the right to veto budget items, although the record doesn’t show how often that has occurred. Justice Kilbride asked whether that right only applied to public funds. Counsel said yes. The Zoo was also barred from selling animals, and parking receipts were allocated to the upkeep of the animals. This was not a mere landlord-tenant relationship, counsel argued. Operational control – the money, the visitors, the oversight and representation on governing bodies – are all reserved to the Forest Preserve District.

We expect O’Toole to be decided in four to six months.

Image courtesy of Flickr by Eric Kilby (no changes).