Court of Appeals of Illinois, First District, Sixth Division
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.
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
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)
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.
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
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
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 ...