Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nourse v. City of Chicago

Court of Appeals of Illinois, First District, Sixth Division

March 24, 2017

RUDY NOURSE and LAUREN NOURSE, Plaintiffs-Appellants,
v.
THE CITY OF CHICAGO, Defendant-Appellee (Fred Carter, Defendant).

         Appeal from the Circuit Court of Cook County. No. 15 L 2620 Honorable Eileen Mary Brewer, Judge Presiding.

          JUSTICE ROCHFORD delivered the judgment of the court, with opinion Presiding Justice Hoffman and Justice Cunningham concurred in the judgment and opinion.

          OPINION

          ROCHFORD JUSTICE

         ¶ 1 Plaintiff-appellant, Rudy Nourse, an apprentice elevator serviceman, and his spouse, plaintiff-appellant, Lauren Nourse, brought this personal injury action against defendant-appellee, City of Chicago (City), and defendant, Fred Carter, an elevator inspector employed by the City's Bureau of Elevators (Bureau). Plaintiffs alleged that Rudy was injured as a result of Mr. Carter's wrongful acts, or his failures to act, in his role as an inspector for the City. The suit was dismissed, with prejudice, on the ground that it was barred by sections 2-105 and 2-207 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/2-105, 2-207 (West 2014)), which provide certain protections to public entities from liability relating to inspections. For the following reasons, we affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 On March 13, 2015, Rudy and Lauren Nourse filed a complaint against the City and Mr. Carter. According to the complaint, on March 20, 2014, Rudy and his supervisor, while employed by Suburban Elevator Company, were working as "elevator servicemen" at the River No. 1-16-0664 North Apartments (the building) in Chicago. Mr. Carter, in his capacity as an inspector with the City's Bureau of Elevators (Bureau), was "performing an inspection of the elevators" at the building. "[A]t all times, " Mr. Carter was allegedly "carrying out his responsibilities for [the City's] Bureau of Elevators." Mr. Carter "ordered" Rudy to enter the pit of an elevator shaft "prior to inspection and testing of said elevator's pit switch and without first advising [his supervisor] who was going to be operating the elevator during the course of said testing." Rudy entered the elevator pit, and his supervisor caused the elevator to descend and strike Rudy, causing injuries. The three count complaint included willful and wanton and negligence claims by Rudy against defendants, and a derivative claim against defendants by Lauren for loss of consortium.

         ¶ 4 After the suit was commenced, Mr. Carter died on May 27, 2015. The City spread his death of record on August 25, 2015. The record contains no indication that an estate was opened, and plaintiffs did not move to substitute the estate or appoint a special administrator pursuant to section 2-1008(b) of the Code of Civil Procedure (Code). 735 ILCS 5/2-1008(b) (West 2014).

         ¶ 5 On July 26, 2015, the City brought a combined motion to dismiss under section 2-619.1 of the Code. 735 ILCS 5/2-619.1 (West 2014). The City sought dismissal of the entire complaint, in part, pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2014)), arguing that the action was barred by sections 2-105 and 2-207 of the Act. In the briefs filed with respect to this motion, the City maintained that the statutory immunity provisions applied because Rudy claimed in response to the motion to dismiss that he was injured as a result of the improperly performed inspection of an elevator, and that his injuries were the " 'result of a [City] inspector's specific conduct during the course of the inspection.' " No. 1-16-0664

         ¶ 6 On September 29, 2015, the circuit court granted the City's motion to dismiss, without prejudice, and granted plaintiffs leave to file an amended complaint.

         ¶ 7 Plaintiffs filed an amended complaint containing the same counts on October 28, 2015. In the amended complaint, plaintiffs contended that on the day of the incident he and his supervisor were at the building "performing elevator modernization" and Mr. Carter, an "elevator inspector" working for the City, was there "in the course and scope of his employment" with the City. "[P]rior to *** [Mr.] Carter performing any inspection of the elevators *** he ordered [Rudy] to climb into *** an elevator pit." Plaintiffs asserted that this order "was unrelated to and not part of any inspection [Mr. Carter] intended to perform subsequent to giving the order to [Rudy]." In accord with Mr. Carter's order, Rudy climbed down into the elevator pit and his supervisor, "without knowledge that [Rudy] was in the elevator shaft, powered up an elevator installed in the same shaft, at which time said elevator descended into the shaft striking [Rudy]." Rudy was allegedly injured as a result.

         ¶ 8 Rudy alleged that Mr. Carter's conduct was willful and wanton in that he had "[d]eliberately and with knowledge disregarded and countermanded" the instruction of Rudy's supervisor that Rudy not go into the elevator pit during testing of the elevator's pit switch; "ordered [Rudy] to enter and remain in the elevator pit during testing of the elevator's pit switch"; did not inform Rudy that the elevator could be activated by another worker; and "failed to ensure [the] pit was safe and clear during testing of the elevator's pit switch."

         ¶ 9 In his negligence count, Rudy alleged that Mr. Carter had carelessly and negligently failed to tell Rudy's supervisor that Mr. Carter had told Rudy to get into the elevator pit and remain there "during the testing of the elevator's pit switch"; "ensure [the elevator] pit was safe and clear during testing of the elevator's pit switch when [Mr. Carter] knew that the elevator No. 1-16-0664 would be activated during the course of testing of the pit switch"; or inform Rudy that the elevator would be activated during testing. It was further alleged that Mr. Carter "disregarded and countermanded previous instructions *** from [Rudy's] supervisor to stay clear of the elevator pit during testing of the pit switch" and "was otherwise careless and negligent in the performance of elevator inspection duties and responsibilities."

         ¶ 10 On November 16, 2015, the City filed a combined section 2-619.1 motion to dismiss the amended complaint. Pursuant to section 2-619(a)(9) of the Code, the City again sought dismissal of the suit, in its entirety, as being barred by sections 2-105 and 2-207 of the Act, because plaintiffs were claiming Rudy was injured during the course of an inspection. In response, plaintiffs argued the City's motion to dismiss was misguided because the amended complaint included allegations that "[Mr.] Carter had not yet begun his inspection" when he ordered Rudy to enter the pit. Plaintiffs also disputed the City's contention that sections 2-105 and 2-207 applied to their suit, because Rudy had not been injured by any defect in the elevator but rather by the negligent or willful and wanton acts of Mr. Carter "that coincidentally occurred when he went to the [building]." The City replied by noting that the amended complaint alleged that Rudy was injured during a test of the elevator pit switch and that Mr. Carter was at the building in the course of his employment as an elevator inspector. The City asserted that these allegations demonstrated that the acts of Mr. Carter at issue were completed during and for the purpose of conducting an elevator inspection.

         ¶ 11 On February 10, 2016, the circuit court, after a hearing, dismissed the amended complaint, in its entirety and with prejudice, after finding that the action was barred by sections 2-105 and 2-207 of the Act. In so finding, the circuit court primarily relied on this court's decision in H ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.