Heyl Royster


Court Addresses a Private “Society” Seeking Immunity

Most private “societies” or “foundations” do not have to worry about the same laws as public bodies. For example, the Board of Directors for a not-for-profit agency is typically not required to be an expert in Open Meetings and Freedom of Information laws (although, the lines are getting more and more blurred with each passing day). However, a case was recently decided where such a “society” was seeking the same protection as a public body.

An injury occurred several years ago at the Brookfield Zoo, which is operated by the Chicago Zoological Society. The Society argued that the case was not timely filed, because the society was protected by the Illinois Tort Immunity Act, which requires a plaintiff to file a lawsuit within one year of the injury. The Society argued the Act applied because it not only protects a typical public body, but also a “not-for-profit corporation organized for the purpose of conducting public business.” See 745 ILCS 10/1-206. The Society felt that its “public business” was maintaining a zoo on land owned by the Forest Preserve District of Cook County, which is also a local public entity.

The appellate court disagreed, concluding that the Society had failed to demonstrate that its activities were actually controlled by the District, and therefore, was not the same as a public body. The court noted several important facts that led to its decision, including: the District had delegated control of all daily operations of the zoo to the Society; only four members of the District’s board sat on the Society’s board or served among its leadership; 90 percent of the Society’s leadership was not employed by the District; and that less than half of the Society’s funding derived from taxes levied by the District.

The Illinois Supreme Court granted leave to hear the case and agreed with the lower court. According to the Supreme Court, “[a] not-for-profit corporation only conducts the operation of the government’s public business if it is controlled by the government.” O’Toole, 2015 IL 118254, ¶ 23. In essence, “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.’” Id.

In its own analysis, the Supreme Court found that the District maintained control over the real property under the zoo, and “the District and the Society share control over the other property of the zoo.” Id., ¶ 24. However, a contract between the parties demonstrated “the Society controls the daily operations of the zoo.” Id., ¶ 25.

That led the Court to conclude the District did not exercise operational control over the Society and as a result, the Society was not able to get the case dismissed as the one year deadline for the plaintiff to file did not apply.