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Bowler v. City of Chicago

September 4, 2007

TRUDY BOWLER, AS MOTHER AND GUARDIAN OF JOSHUA BOWLER, PLAINTIFF-APPELLANT,
v.
THE CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE
(CHARLES D. BLECK, LINDA L. CHUI, ROBERT BLECK AND BLECK & BLECK, A PARTNERSHIP, DEFENDANTS).



Appeal from the Circuit Court of Cook County Honorable Kathy M. Flanagan, Judge Presiding.

The opinion of the court was delivered by: Justice Karnezis

Published opinion

Joshua Bowler was injured when he fell off the roof of a three-story apartment building in Chicago. Plaintiff Trudy Bowler, as Joshua's mother and guardian, filed an action against defendant the City of Chicago (City) asserting the City breached a duty of care to Joshua and acted willfully and negligently when it failed to enforce the building code and issued a permit for construction of access to the roof knowing the proposed construction design violated the City's building code (Chicago Municipal Code §13-4-010, et seq. (2004)). The trial court dismissed the complaint against the City, finding the City immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 2006)) (the Tort Immunity Act). Plaintiff appeals, arguing (1) the City is not immune from liability for its willful and wanton conduct in issuing the construction permit, (2) the court erred in finding plaintiff failed to allege wilful and wanton conduct in the City's execution and enforcement of the building code sufficient to plead liability under section 2-202 of the Tort Immunity Act (745 ILCS 10/2-202 (West 2006)), and (3) the common law "public duty" rule does not defeat the City's duty of care to Joshua. We affirm.

Background

On December 12, 2004, Joshua attended a party held on the roof deck of the three-story residential building at 3444 N. Janssen Street owned by Charles Bleck and Linda Chiu. The deck was on the east side of the building's roof. To reach the raised deck, guests climbed stairs leading from the building's third-floor unit to a penthouse at roof level and then walked across the roof to the deck. The roof had a nine-inch-high parapet wall around it. Joshua was standing at the parapet wall when he fell backwards over the wall to the ground 40 feet below. As a result of the fall, he is now a quadriplegic.

Bleck and Chiu had bought the building in 1996 and started construction of the roof access stairway and penthouse in mid-July 1997. In late July 1997, a building inspector discovered Bleck and Chiu did not have a permit for the construction and ordered the work to cease. On August 14, 1997, the City issued a summons to Bleck and Chiu, notifying them of building code violations and setting a September 11, 1997, administrative hearing date for the violations. Sometime in August 1997, Bleck submitted an application for a construction permit. He attached blueprints of the proposed roof access construction to his application. A city architectural plan examiner approved the blueprints for issuance of a construction permit. The chief architectural plan examiner also reviewed the blueprints and approved issuance of the permit on August 21, 1997. At the hearing on the code violations, the administrative law judge dismissed the citations against Bleck and Chiu given the City's issuance of the construction permit.

Plaintiff filed an action on Joshua's behalf against Bleck, Chiu, architect Robert Bleck, the architectural firm Bleck & Bleck and the City. Only her claim against the City is at issue here. In plaintiff's second amended complaint, she alleged the roof violated sections 13-124-310, 13-124-320 and 13-124-330 of the City's building code (Chicago Municipal Code §13-124-310, 13-124-320 and 13-124-330 (2004)) because it did not have three-foot-high protective guards around the edge of the roof.*fn1 She also alleged the blueprints Bleck submitted to the City with his application showed these violations; the City's plan examiners knew the safety requirements stated in sections 13-124-310, 13-124-320 and 13-124-330; the plan examiners acted intentionally and recklessly in approving the violation of the code and electing not to enforce the code; building inspectors falsely advised the administrative law judge that they had performed a reinspection of the property and the planned construction and that Bleck and Chui were in compliance with the building code; the City knew no reinspection had taken place and the construction was not in compliance with the code; and the building inspector's reinspection willfully, recklessly and with utter indifference to the safety of the public and plaintiff ignored the blatant omission of the required guarding of the roof and he knew his statement to the administrative law judge that the work was in compliance with the code was not true.

Plaintiff asserted the City had a duty "to refrain from a course of action which either actually, deliberately or with an utter disregard for the safety of the public executed documents that approved the construction that violated" sections 13-124-310, 13-124-320 and 13-124-330. She asserted the City, in breach of this duty, "deliberately, willfully or with a wanton disregard for the safety of the public including plaintiff," participated in the violation of the safety requirements in sections 13-124-310, 13-124-320 and 13-124-330 by executing an order for Bleck's work; executed an administrative order on the basis of a reinspection of the property that recklessly overlooked the existing violation of sections 13-124-310, 13-124-320 and 13-124-330; undertook a reinspection that disregarded the obvious omission of the guarding as required in sections 13-124-310, 13-124-320 and 13-124-330; "chose not to enforce the Chicago Building Code when they knew that the violation posed unreasonable risks of harm to citizens lawfully on the premises"; and/or "authorized the violation of the Chicago Building Code." She alleged Joshua fell over a non-complying parapet wall as a direct and proximate result of one or more of the wilful activities.

The City filed a motion to dismiss the second amended complaint pursuant to section 2-619(a)(9) of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2006)), arguing that it was immune from liability under sections 2-103, 2-205, 2-104 and 2-105 of the Tort Immunity Act (745 ILCS 10/2-103, 2-205, 2-104, 2-105 (West 2006)). The court granted the motion to dismiss with prejudice, finding the City immune from liability under sections 2-103 and 2-205 of the Tort Immunity Act and the wilful and wanton exception to immunity from liability provided in section 2-202 of the Tort Immunity Act did not apply. Plaintiff appeals the court's order dismissing her suit against the City. The case against the other defendants continues below.

Analysis

The court allowed the motion to dismiss pursuant to section 2-619(a)(9) of the Code. Under section 2-619, a valid cause of action is presumed but barred by an affirmative matter, a defense which negates the plaintiff's cause of action. 735 ILCS 5/2-619(a)(9) (West 2006); Kedzie & 103d Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17, 619 N.E.2d 732, 735 (1993). Immunity under the Tort Immunity Act is such an affirmative matter. Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 479, 763 N.E.2d 756, 759 (2002). We review a section 2-619 dismissal de novo. Arteman, 198 Ill. 2d at 479, 763 N.E.2d at 759. Interpreting all pleadings in the light most favorable to the nonmoving party, we must determine "whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law." Kedzie & 103d Currency Exchange, Inc., 156 Ill. 2d at 116-17, 619 N.E.2d at 735.

Immunity

In her opening brief, plaintiff argues the court erred in finding the City immune from liability under sections 2-103, 2-205, 2-104 and 2-105. Pursuant to sections 2-103 and 2-205, neither a local public entity (section 2-103) nor an employee of a public entity (section 2-205) is liable for injury caused by adopting or failing to adopt an enactment or by failing to enforce any law. 745 ILCS 10/2-103; 745 ILCS 10/2-205 (West 2006). Pursuant to section 2-104, a local public entity is not liable for an injury caused by "the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order or similar authorization where the entity or its employee is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked. " 745 ILCS 10/2-104 (West 2006).

Pursuant to section 2-105, a local public entity is not liable for an injury caused by "its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than its own, to determine whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety." 745 ILCS 10/2-105 (West 2006). Under the plain and unambiguous language of these sections, it would appear that the City is immune from liability for ...


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