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10/17/97 LE ROY JAMES EPSTEIN v. CHICAGO BOARD

October 17, 1997

LE ROY JAMES EPSTEIN, APPELLEE,
v.
THE CHICAGO BOARD OF EDUCATION, APPELLANT.



Petition for Leave to Appeal from the Circuit Court of Cook County. Hon. Patrick E. McGann, Trial Judge. Case Numbers: AC1-93-1174, AC1-93-2071, TR87L20366.

The Honorable Justice Bilandic delivered the opinion of the court.

The opinion of the court was delivered by: Bilandic

The Honorable Justice BILANDIC delivered the opinion of the court:

The Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, par. 1-101 et seq.) provides in section 3-108(a) that "neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property." Ill. Rev. Stat. 1987, ch. 85, par. 3-108(a). This appeal addresses the interplay between section 3-108(a) immunity and claims brought against local public entities based upon violations of the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.).

BACKGROUND

The plaintiff, Le Roy James Epstein, brought this cause of action against the Chicago Board of Education (Board) and a contractor in the circuit court of Cook County, seeking to recover damages pursuant to the Structural Work Act. The contractor subsequently filed a third-party complaint against another contractor and the project architect.

The plaintiff's third-amended complaint against the Board contained only a Structural Work Act claim. The complaint alleged that the Board engaged a number of contractors to perform renovation work at a Chicago public school. The plaintiff was employed by a subcontractor to work on the project as a pipefitter. On June 23, 1987, the plaintiff was standing on a ladder while using a hand-held power tool to grind a groove into the wall. He fell from the ladder and was injured.

The complaint charged that the Board was in charge of the plaintiff's construction work at the school. The complaint further charged that the Board had violated the Structural Work Act by allowing the plaintiff to use a ladder rather than a scaffold, and by failing to perform the following acts: stop the plaintiff's grinding work; inform the plaintiff's employer that a scaffold should be used; enforce OSHA safety measures pertaining to workers at elevated levels; require the grinding work to be performed from a scaffold; and furnish the plaintiff with a scaffold or other suitable support.

The Board moved to dismiss the Structural Work Act complaint against it pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)). The Board argued that the allegations in the plaintiff's complaint amounted to charges that the Board had failed to supervise the construction work on its premises, actions for which the Board is immune from liability under section 3-108(a) of the Tort Immunity Act. In support of this proposition, the Board relied on the appellate court decision of Eiben v. E.J. Cattani & Sons. Inc., 217 Ill. App. 3d 609, 160 Ill. Dec. 557, 577 N.E.2d 882 (3d Dist. 1991).

The plaintiff responded with the countervailing appellate court opinion in Eck v. McHenry County Public Building Comm'n, 237 Ill. App. 3d 755, 178 Ill. Dec. 586, 604 N.E.2d 1109 (2d Dist. 1992). The Eck court held that section 3-108(a) of the Tort Immunity Act never applies to bar a Structural Work Act claim. Eck, 237 Ill. App. 3d at 757-63. In the alternative, the plaintiff contended that section 3-108(a) is not applicable to his case because the Board's actions amounted to more than a failure to supervise.

The circuit court granted the Board's motion and dismissed the plaintiff's complaint. Following Eiben, the circuit court held that the plain language of section 3-108(a) provides the Board with immunity for its failure to supervise the construction activities. The circuit court then issued a Supreme Court Rule 304(a) finding (155 Ill. 2d R. 304(a)), following which the plaintiff appealed the circuit court's order granting the Board's motion to dismiss.

The appellate court reversed the circuit court's dismissal and remanded for further proceedings. Nos. 1-93-1174, 1-93-2071 cons. (unpublished order under Supreme Court Rule 23). Following Eck's progeny ( Serrano v. Chicago Board of Education, 257 Ill. App. 3d 888, 196 Ill. Dec. 86, 629 N.E.2d 631 (1st Dist. 1994)), the appellate court held that section 3-108(a) never provides immunity to local governmental entities for claims asserted under the Structural Work Act. In addition, the appellate court found the dismissal of the plaintiff's complaint to be improper for an alternative reason. The appellate court held that the plaintiff's pleadings and evidence raised a question of material fact as to whether the Board's conduct amounted to more than mere supervision of the construction at the school.

We allowed the Board's petition for leave to appeal (155 Ill. 2d R. 315(a)) to resolve the conflict in the appellate court on whether section 3-108(a) of the Tort Immunity Act ever ...


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