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Rebecca Hess v. Ronald Flores

March 31, 2011

REBECCA HESS,
PLAINTIFF-APPELLANT,
v.
RONALD FLORES, INDIVIDUALLY AND D/B/A FLORES PROPERTIES INC., CHARLOTTE K. FLORES, A/K/A CHARLOTTE K. KLINK,
DEFENDANTS THE CITY OF CHICAGO,
DEFENDANT-APPELLEE



Appeal from the Circuit Court of Cook County No. 04 L 12005 Honorable Elizabeth Budzinski, Judge Presiding.

The opinion of the court was delivered by: Justice Rochford

JUSTICE ROCHFORD delivered the judgment of the court, with opinion. Presiding Justice Hall and Justice Hoffman concur with the judgment and opinion.

OPINION

Plaintiff, Rebecca Hess, fell from the second-floor, rear staircase of an apartment building located at 2050-2052 W. Summerdale Avenue, Chicago (the Summerdale building). Plaintiff fell where a portion of the rear staircase handrail had been removed and marked with yellow caution tape. Prior to her fall, the rear staircases and porches had been the subject of multiple inspections by the city of Chicago (the City) and judicial proceedings relating to building code violations.

Plaintiff brought this action seeking damages against defendants, Ronald Flores, individually and d/b/a Flores Properties Inc., and Charlotte K. Flores, a/k/a Charlotte K. Klink, as owners and/or managers of the Summerdale building for failing to maintain and repair the rear stairs and porches. Plaintiff also sued the City for allegedly wilful and wanton conduct on the part of its building inspectors. Plaintiff now appeals from an order granting the City's motion for summary judgment, an order made final and appealable pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010).

I. BACKGROUND

Plaintiff filed her initial complaint on October 24, 2005. The operative first-amended complaint was filed in January of 2006.

In the amended complaint, plaintiff generally alleged that the Summerdale building was a three-story building which defendants Mr. Flores and Ms. Klink leased for residential purposes. The building included a rear porch and staircase system for use by lessees and invitees of the property. On a number of occasions in 2002 and 2003, the Summerdale building had been inspected by the City for violations of the municipal building code (Code), including defects in the construction of the rear porch and staircase system. A March 15, 2002, inspection report noted that the "outer stringer" was scabbed at the second-floor deck, a four-inch by four-inch upright was rotting at the second-floor deck, and there was a pulling railing section from the second to the third floor. After two subsequent inspections continued to find the porch and staircase system to be in a dangerous condition, the City filed a formal housing court complaint against Mr. Flores. The complaint alleged 11 violations of the Code, including a failure to replace a "dilapidated and dangerous porch."

The City continued to inspect the Summerdale building in 2003 and 2004, and continued to find the porch and staircase system to be in a "dangerous and hazardous condition." While Mr. Flores and Ms. Klink did undertake some repairs of this system, they did so without a building permit, and at the time of plaintiff's accident, the porch and staircase system did not have any "side railings and/or hand railings on the rear staircase." On August 18, 2004, plaintiff fell from the rear porch system while exiting an apartment on the second floor of the Summerdale building. She suffered severe injuries, including a spinal cord injury resulting in paralysis.

Plaintiff's amended complaint contains allegations of negligence and willful and wanton conduct against both Mr. Flores and Ms. Klink. The complaint also contains a single count of "willful and wanton" conduct against the City. Specifically, plaintiff alleged that the City owed her a duty "to refrain from or engage in, both directly and indirectly, acts and/or omissions exhibiting reckless disregard and utter indifference in the inspection of buildings and execution and enforcement of the law." Plaintiff alleged that the City, through it's department of buildings, breached this duty when it acted with utter indifference or conscious disregard for the safety of others by: (1) failing to adequately and properly inspect the porch and staircase system for Code violations; (2) failing to train the building inspectors to identify Code violations; (3) engaging in a practice of hiring unqualified building inspectors; (4) failing to block access to or remove the rear staircase's hazardous conditions; condition; (6) failing to fully inform the housing court judge of the hazardous condition of the rear staircases; and (7) requiring Mr. Flores to place yellow caution tape on the porch in place of the handrails or side rails.

In deposition testimony, Vladimir Tkach, a building inspector for the City's department of buildings, bureau of conservation, confirmed that he inspected the Summerdale building on March 15, 2002. He discovered 17 violations of the Code throughout the Summerdale building, including certain problems with the rear porches and stairs. Although the department of buildings referred the Code violations to administrative hearing, the rear porches and stairs remained in disrepair when Mr.Tkach inspected the Summerdale building on October 9, 2002, and July 17, 2003. After his July 17, 2003, inspection, Mr. Tkach concluded that the rear staircases were "dangerous and hazardous." The department of buildings recommended that suit be brought in housing court against the owners for violations of the Code.

For purposes of reporting to the housing court judge on the status of any repairs, Mr. Tkach also inspected the Summerdale building on October 24, 2003, January 6, 2004, and February 18, 2004. Although repairs had begun, he concluded on each of these dates that the rear staircases were still in a dangerous and hazardous condition. Mr. Tkach believed that the rear staircases and porches needed to be replaced or assessed by an engineer. Mr. Tkach denied that he ever ordered the porch repairs to stop or told anyone to take down the handrails and put up yellow caution tape.

After Mr. Tkach was transferred to another position, Donald Lesley had responsibility for inspecting the Summerdale property for the housing court case. Mr. Lesley testified in his deposition that he inspected the building on June 9, 2004, and found that the rear porches and stairs were still in a dangerous and hazardous condition. Mr. Lesley observed that the repair work to the staircases was creating unsafe conditions and was not in compliance with the Code. On June 9, 2004, Mr. Lesley asked the worker to tell the owners that the repairs were not being done in a workmanlike manner and "to get it together." Mr. Lesley also denied that he ever ordered the porch repairs to stop and denied telling anyone to take down the handrails and put up yellow caution tape.

John Price, a former supervisor for the bureau of conservation, retired in March 2004. In his deposition, Mr. Price explained that bureau of conservation inspectors may ask owners to stop work but are not authorized to issue stop-work orders. Mr. Price agreed that open stair railings with yellow caution tape would be in violation of the Code and a dangerous condition.

Mr. Flores testified that he hired Russell Roe, a tenant in the Summerdale building, to complete the repairs on the rear porches. Mr. Flores also testified that while those repairs were taking place, a City inspector told either himself or Mr. Roe to stop the repair work on the porches and stairs because no permit had been obtained for that work. Mr. Flores told Mr. Roe to put up yellow caution tape if he was working on the porches. At the time work was stopped by the City, a portion of the handrails had been removed.

Mr. Roe testified that, before beginning work in June or July of 2004, he met with an unnamed building inspector to discuss the Code violations and the necessary repairs of the rear staircases. Mr. Roe began to remove sections of the handrails at the end of July or beginning of August. Mr. Roe testified that, after some of the handrails were removed, the same building inspector who met with him prior to the repairs ordered that the work on the rear staircases stop because no permit had been issued. Mr. Roe stated that the City inspector threatened him with arrest should the work continue, and also told him to put up yellow caution tape to warn the tenants to stay off.

On the day he was told to stop work on the staircases, Mr. Roe put yellow caution tape across the rear doors of the apartments and other points of access and through the handrails and other places on the staircases. He also gave written warnings to the tenants that the staircases should not be used. Mr. Roe testified that two female City inspectors later came to the Summerdale building and reiterated that no work should be done on the rear staircases. One of these inspectors remarked to Mr. Roe: "Oh, good. I see you guys got the tape up." Mr. Roe said these inspectors saw that handrails were missing and that the stairs were marked with yellow caution tape.

In moving for summary judgment, the City argued that, under the common law public duty rule, it did not owe plaintiff a duty. Moreover, even if a duty existed, the City was protected from liability under certain provisions of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1--101 et seq. (West 2008)), including sections 2--105 and 2--207, which specifically relate to inspections of private property (745 ILCS 10/2--105, 2--207 (West 2008)). Plaintiff responded by arguing that a duty existed. Additionally, plaintiff asserted that any immunity provisions were not applicable because the City had contributed to the dangerous condition of the rear staircase by ordering the repair work to stop at a time when there were missing handrails, directing that yellow caution tape be placed along the openings, and threatening Mr. Roe with arrest if he continued to work on the rear staircases. The trial court granted the City's motion for summary judgment, and subsequently made that order final and appealable pursuant to Illinois Supreme Court Rule 304(a) (eff. Jan. 1, 2006).

II. ANALYSIS

On appeal, plaintiff asserts that the City's motion for summary judgment was improperly granted because the City did in fact owe her a duty and the Tort Immunity Act did not provide immunity for the City's breach of that duty. Because the issues of governmental duty and immunity have been the source of a great deal of prior litigation, we begin with a review of both legal concepts before addressing plaintiff's specific arguments.

A. Standard of Review

"Summary judgment is proper if, when viewed in the light most favorable to the nonmoving party, the pleadings, depositions, admissions, and affidavits on file demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Lazenby v. Mark's Construction, Inc., 236 Ill. 2d 83, 93 (2010); 735 ILCS 5/2--1005(c) (West 2008). The propriety of an order granting summary judgment is a question that we review de novo. Jones v. Country Mutual Insurance Co., 371 Ill. App. 3d 1096, 1098 (2007). "Furthermore, we may affirm the trial court's grant of summary judgment for any reason that is supported by the record, regardless of whether that reason formed the basis for the trial court's judgment." Bovan v. American Family Life Insurance Co., 386 Ill. App. 3d 933, 938 (2008).

As noted above, the issues raised in this appeal include the existence, if any, of a duty on the part of the City and whether the City is nevertheless immune from suit pursuant to the Tort Immunity Act. Both of these are questions of law and, therefore, are also subject to our de novo review. Vancura v. Katris, 238 Ill. 2d 352, 373-74 (2010) (whether a duty exists is a question of law, which is reviewed de novo); Wilson v. City of Decatur, 389 Ill. App. 3d 555, 558 (2009) (interpretation of the Tort Immunity Act is a matter of law reviewed de novo).

B. Historical Duties and Immunities

Under the common law, to prevail in a tort action a plaintiff must establish that the defendant owed a duty of care, that the defendant breached that duty, and that plaintiff incurred injuries proximately caused by the breach. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004). The requirement that a plaintiff establish the existence of a duty of care applies whether the plaintiff proceeds under a theory of negligence or willful and wanton conduct. Bialek v. Moraine Valley Community College School District 524, 267 Ill. App. 3d 857, 862 (1994). Where there is no duty, there can be no liability. Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 447 (1996).

However, historically the common law specifically protected local governmental entities from tort liability under the doctrine of sovereign immunity and the public duty rule. The sovereign immunity doctrine traditionally immunized a governmental unit in Illinois from liability and has been called a " 'survival of the medieval idea that the sovereign can do no wrong,' or that 'the King can do no wrong.' " Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11, 20 (1959) (quoting 38 Am. Jur., Municipal Corporations, § 573, at 266). Under the public duty rule, a municipality is not to be held liable for its failure to provide adequate governmental services, such as police or fire protection. Huey v. Town of Cicero, 41 Ill. 2d 361, 363 (1968). "The rationale for this rule was that the duty of a municipality to provide governmental services was owed to the public at large and therefore took precedence over any duty owed to a particular plaintiff." Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 345 (1998).

A common law exception to the public duty was recognized, however, where a governmental unit was operating under a "special duty" to a particular individual such that it could be held liable in tort. Huey, 41 Ill. 2d at 363. For there to be a special duty, four requirements must be met: (1) the governmental entity must be uniquely aware of the particular danger or risk to which plaintiff is exposed; (2) plaintiff must show specific acts or omissions on the part of the entity; (3) those specific acts or omissions must be affirmative or willful in nature; and (4) the injury must occur while plaintiff is ...


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