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Marshall-putnam Farm Bureau v. Shaver

JUNE 19, 1973.

MARSHALL-PUTNAM FARM BUREAU, INC. ET AL., PLAINTIFFS-APPELLANTS,

v.

PHILLIP BISSELL SHAVER ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Marshall County; the Hon. EDWARD E. HAUGENS, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Plaintiff Marshall-Putnam Farm Bureau, Inc., was the owner of a certain building located in the defendant City of Henry, adjacent to a building owned by defendant Shaver. The other plaintiffs were employees of the Farm Bureau and defendant Warner was the mayor of the City of Henry. Plaintiffs filed a fourteen count complaint. Count I alleges that defendant Shaver negligently abandoned his building and allowed it to deteriorate to a condition where it was likely to collapse at any time; that he failed to repair it or demolish it in violation of Illinois Revised Statutes 1969, chapter 127 1/2, section 9. The count further alleges that Shaver's building did collapse, damaging the Farm Bureau and its building.

Count II alleges that the City of Henry had actual knowledge of the condition of Shaver's building and had been requested by the Farm Bureau to take action to remedy or alleviate the condition; that the city had a policy of insurance affording coverage to itself, and its officers and employees for liability for damages arising out of such occurrences; that such policy was contracted for pursuant to or by virtue of Ill. Rev. Stat. 1969, ch. 85, sec. 9-103; that the city negligently failed to seek the repair or demolition of Shaver's building in accordance with Ill. Rev. Stat. 1969, ch. 24, sec. 11-31-1, or its inherent emergency police power and negligently failed to act pursuant to Ill. Rev. Stat., ch. 127 1/2, sec. 9. The count then alleges the collapse of Shaver's building and the damages to the Farm Bureau.

Count III is identical to Count II, except it is against the defendant Warner, individually and as mayor of the City of Henry.

Count IV is identical to Count II, except it is based on willful and wanton conduct.

Count V is identical to Count II, except it is based on willful and wanton conduct.

Count VI is identical to Count II, except it is based on willful and wanton conduct and the added allegation that the defendant's conduct was contrary to Ill. Rev. Stat. 1969, ch. 85, sec. 2-202.

Count VII is identical to Count II, except it is against defendant Warner, for willful and wanton conduct contrary to Ill. Rev. Stat. 1969, ch. 85, sec. 2-202.

Count VIII is for certain employees of the Farm Bureau against Shaver.

Counts IX through XIV are for the employees against the city and Warner. These counts are based on the same respective theories of liability as Count I and Counts II through VIII. The damages alleged to the employees are for physical and mental discomfort, inconvenience and annoyance while working for the Farm Bureau during the period of the repair of the building.

Counts II through VII and IX through XIV were dismissed by the trial court on the grounds that they were barred by the provisions of Local Governmental and Governmental Employees Tort Immunity Act and were substantially insufficient in law.

Count VIII was dismissed on the ground that it was insufficient in law.

Plaintiffs elected to stand on the complaint as filed and have taken this appeal.

• 1 The first question presented to us is the constitutionality of Ill. Rev. Stat. 1969, ch. 85, sec. 9-103, for the reason that it is a grant of a special privilege to local public entities to determine their own liability for tort. We consider this question to be settled by the supreme court of this state in Sullivan v. Midlothian Park District, 51 Ill.2d 274, 281 N.E.2d 659. The court there held that section 9-103 was neither arbitrary nor unreasonable and did not constitute special privilege or special legislation. We therefore hold, in accordance with the provisions of section 9-103, that the immunity granted to the defendant City of Henry, and its defendant Mayor Warner, for negligence by reason of the provisions of the Local ...


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