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Collins v. Bartlett Park District

Court of Appeals of Illinois, Second District

September 20, 2013

JOHN COLLINS, Plaintiff-Appellant,
v.
BARTLETT PARK DISTRICT, Defendant-Appellee.

Held [*]

On appeal from the dismissal of plaintiff’s claims for a violation of the Whistleblower Act and retaliatory discharge arising from his challenge of his supervisor’s decision to continue operating a ski lift at the park district where he worked, the dismissal of his claim under the Act was upheld in the absence of an allegation that plaintiff refused to participate in an illegal activity, but the dismissal of the retaliatory discharge claim was reversed, since plaintiff alleged that the Safety Act applicable to the operation of ski lifts and regulations and inspections required by the Department of Labor were a clear mandate of a public policy of ensuring skier safety, and the question of whether plaintiff was discharged for insubordination or in retaliation for seeking enforcement of the safety regulations was a matter for the trier of fact.

Appeal from the Circuit Court of Du Page County, No. 12-L-59; the Hon. Hollis L. Webster, Judge, presiding.

Counsel on Stephen M. Cooper, Peter M. Storm, and Philip J. Piscopo, all of Cooper, Appeal Storm & Piscopo, of Geneva, for appellant.

Gregory R. James, David A. Moore, and Sara P. Yager, all of Laner Muchin, Ltd., of Chicago, and Edward F. Dutton, of Park District Risk Management Agency, of Lisle, for appellee.

Panel PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion.

Justices Hutchinson and Jorgensen concurred in the judgment and opinion.

OPINION

BURKE, PRESIDING JUSTICE

¶ 1 Defendant, Bartlett Park District, terminated the employment of plaintiff, John Collins, after plaintiff challenged his supervisor's decision to continue operating an allegedly defective ski lift at full capacity. Plaintiff filed a two-count amended complaint, alleging (1) retaliation in violation of section 20 of the Whistleblower Act (see 740 ILCS 174/20 (West 2012)) and (2) the common-law tort of retaliatory discharge.

¶ 2 The trial court dismissed both claims under section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)), and plaintiff appeals. We affirm the dismissal of the whistleblower claim, reverse the dismissal of the retaliatory discharge claim, and remand the cause for further proceedings.

¶ 3 FACTS

¶ 4 In his amended complaint, plaintiff alleged the following facts common to both claims. Defendant owns and operates the Villa Olivia Country Club and Ski Facility (Villa Olivia) in Bartlett. The ski facility includes chair lifts designed to transport skiers to the top of a ski hill. Each chair in the lift at issue holds up to four passengers.

¶ 5 From 1983 until late in 2010, Villa Olivia's prior owner employed plaintiff, whose job title was assistant superintendent. Plaintiff's duties included overseeing the day-to-day operations of the ski hill, maintaining the buildings, maintaining and repairing equipment for the ski hill and golf course, and maintaining and repairing the chair lifts to ensure their safe operation. Defendant purchased Villa Olivia in November 2010. Plaintiff reapplied for his position and was hired by defendant in December 2010.

¶ 6 The Carnival and Amusement Rides Safety Act (Safety Act) regulates the operation and maintenance of ski lifts in Illinois, including the chair lifts and other lifts at Villa Olivia. See 430 ILCS 85/2-2(4)(b) (West 2012) ("amusement ride" governed by the Safety Act defined to include "any ski lift, rope tow, or other device used to transport snow skiers"). The Safety Act charges the Department of Labor and the Carnival-Amusement Safety Board to "promulgate and formulate definitions, rules and regulations for the safe installation, repair, maintenance, use, operation, training standards for operators, and inspection of all amusement rides and amusement attractions as the Director finds necessary for the protection of the general public using amusement rides and amusement attractions." 430 ILCS 85/2-6 (West 2012). Accordingly, the Director of the Department of Labor adopted a regulation that implements the standards of "ANSI B-77.1" from the American National Standards Institute (ANSI), which is entitled "2006 Passenger Ropeways–Aerial Tramways, Aerial Lifts, Surface Lifts, Tows and Conveyors–Safety Requirements (2006)" (hereinafter ANSI Code). 56 Ill. Adm. Code 6000.15(a)(1)(B) (2009).

¶ 7 On December 26, 2010, plaintiff discovered that the chair lift had a maintenance problem. Two worn sheave wheel liners on tower 3 caused the chair cable, when ascending the lift, to ride outside the sheave wheel assemblies. Plaintiff observed that the defect caused the chair lift's rope grips to be in contact with the sheave flanges, outside the line sheave groove.

¶ 8 Plaintiff alleged that a chair lift operating this way would be a violation of sections 4.1.3.3.2 and 4.1.3.3.3 of the ANSI Code. Furthermore, the haul rope grip no longer passed smoothly over and under the line sheaves as required by section 4.1.4.3.1 of the ANSI Code. On December 26, 2010, plaintiff drafted, signed, and delivered to defendant a handwritten description of the chair lift's condition on that date. Plaintiff attached a copy of that document to the amended complaint.

¶ 9 To reduce the load on the system, plaintiff adopted a temporary safety measure of loading only two passengers on every other chair, rather than four passengers on every chair. This measure prevented the chair cable from riding outside the sheave wheel assembly and temporarily brought the chair lift into compliance with the ANSI Code.

¶ 10 Plaintiff reported the problem and his temporary solution to his supervisor, John Carlson, the parks department superintendent. Carlson decided to repair the system by replacing the two sheave wheel assemblies. Plaintiff alleged that such a replacement is not "the ordinary method of repairing the system" but would be effective if the correct parts were used. Plaintiff ordered the correct replacement parts, but the wrong parts arrived. By January 14, 2011, the system could not be repaired as Carlson directed.

¶ 11 At defendant's request, plaintiff tested the chair lift and learned that the cable, when the chairs were fully loaded, was still riding outside the sheave wheel assemblies. The condition had not changed since plaintiff's discovery of the problem the previous month.

¶ 12 Plaintiff persisted in his opinion that safe operation of the chair lift required restricting the number of passengers and chairs that were loaded. Plaintiff instructed the chair lift operator to continue to load only every other chair with only two passengers. Plaintiff notified defendant of his findings and his directions to the operator.

¶ 13 On January 15, 2011, plaintiff arrived at work and discovered that the chair lift was operating at full capacity. Plaintiff immediately reiterated his instruction to the operator torestrict the load.

¶ 14 The operator responded that Rita Fletcher, Villa Olivia's executive director, had instructed him to load the chairs to full capacity. Plaintiff told the operator that running the chair lift that way was "wrong" and that he should load every other chair only.

ΒΆ 15 Fletcher summoned plaintiff and informed him that she and Carlson had decided that the chair lift would be operated at full capacity, even though it had not been repaired yet. ...


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