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Andrews v. Metropolitan Water Reclamation District of Greater Chicago

Supreme Court of Illinois

December 19, 2019

BECKY ANDREWS et al, Appellees,

          CHIEF JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Thomas, Kilbride, Theis, and Neville concurred in the judgment and opinion.



         ¶ 1 At issue in this appeal is whether a water reclamation district is immune from liability pursuant to sections 2-109 and 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-109, 2-201 (West 2012)) for injuries suffered by the employee of a contractor. The circuit court of Cook County held defendant was entitled to immunity and entered summary judgment for defendant. The appellate court reversed the circuit court's judgment. 2018 IL App (1st) 170336. We now affirm the judgment of the appellate court, reverse the judgment of the circuit court, and remand for further proceedings.

         ¶ 2 BACKGROUND

         ¶ 3 The Metropolitan Water Reclamation District of Greater Chicago (District) owns and operates the Calumet water reclamation plant located at 400 East 130th Street in Chicago. On July 10, 2008, the District entered into a contract with a joint venture, F.H. Paschen, S.N. Nielsen/IHC Construction (Joint Venture), for the "Primary Settling Tanks and Grit Removal Facilities" project to be carried out at the Calumet plant. The Joint Venture was the general contractor for the project.

         ¶ 4 According to the contract, it was the Joint Venture's responsibility to determine the procedures and methods for the work and furnish all temporary structures and safety equipment. The Joint Venture was also responsible for the safety of all personnel on the work site, including its own employees and District personnel. The contract required the Joint Venture to submit plans for the work to the District's engineer. The engineer then had the right to disapprove and reject any procedures and methods he deemed to be unsafe. The contract provided, however, that the engineer's acceptance of the plans did not relieve the Joint Venture of its responsibility for safety, maintenance, and repairs on the project.

         ¶ 5 Jeffrey Andrews was an employee of F.H. Paschen, S.N. Nielsen & Associates, LLC, a member of the Joint Venture. On April 21, 2011, Andrews was assigned to work at the plant's primary settling tank number 2402. According to the complaint in this case, prior to that date it had rained heavily, causing the area around the tank to be extremely muddy and the tank to collect three feet of standing water. Andrews and a coworker, Luis Cuadrado, were assigned the job of applying grout to a gate at the bottom of a 29-foot effluent chamber.

         ¶ 6 In order to reach the bottom of the chamber, the workers used two ladders. First, they ascended a short, job-made wooden ladder to reach the top of the chamber. Then, they pivoted their bodies around the wooden ladder and onto a fiberglass extension ladder, which was set inside the chamber. The workers would then descend into the chamber using the fiberglass ladder. The two ladders were higher than the top of the chamber and were angled toward each other. There was no platform for workers to transition between the ladders. It was alleged that this two-ladder configuration had been used several times to reach the bottom of other tanks in the course of the construction project. While transitioning from the job-made ladder to the fiberglass ladder, Andrews fell approximately 30 feet and landed on Cuadrado, who had already descended to the bottom of the chamber. Both men were severely injured. Andrews suffered broken bones and severe, career-ending head injuries.

         ¶ 7 On January 3, 2012, Andrews's wife, Becky Andrews, filed suit against the District, both individually and as plenary guardian of the person and estate of her husband. Plaintiff filed an amended complaint on January 3, 2013. The amended complaint contained four counts alleging construction negligence, loss of consortium for construction negligence, willful and wanton construction negligence, and loss of consortium for willful and wanton construction negligence. Defendant filed a combined motion to dismiss citing both sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 2012)). Defendant asserted it was immune from liability for the failure to supervise an activity on public property, pursuant to section 3-108 of the Tort Immunity Act. 745 ILCS 10/3-108 (West 2012).[1] This defense applied only to the negligence counts, since section 3-108 expressly excepts willful and wanton conduct from immunity. See id. Defendant also argued that the amended complaint failed to state a cause of action for willful and wanton conduct.

         ¶ 8 On May 3, 2013, the trial court dismissed the two negligence counts with prejudice on the grounds that defendant was entitled to immunity under section 3-108. The court dismissed the willful and wanton counts without prejudice, allowing plaintiff to replead those counts. On October 10, 2013, plaintiff filed her second amended complaint, adding the Joint Venture as a defendant. [2] The second amended complaint alleged two counts of willful and wanton construction negligence against the District, one count on behalf of Jeffrey Andrews and one count for Becky Andrews's loss of consortium. Both counts alleged that defendant

"30. *** failed in one or more of the following respects with an utter indifference and a conscious disregard for plaintiffs safety:
a. allowed workers to work upon effluent chambers without the use of access platforms, when it had actual knowledge that employees were previously not using them;
b. failed to supervise their employees on site when it knew of previous occasions when crews were working without fall protection;
c. willfully failed to implement its fall protection plan by not providing supervision by a competent person;
d. willfully failed to provide an offset platform or landing between the portable ladder and the 43' fiberglass extension ladder, when it had actual knowledge that offset platforms were previously not being used;
e. failed to implement a mandatory fall protection plan when it had actual knowledge of prior occasion [sic] when employees were not utilizing fall protection;
f. failed to implement a safety plan when it had actual knowledge that employees were transitioning from makeshift ladders to extension ladders without access platforms;
g. willfully failed to provide an adequate or suitable scaffold or ladder for Jeffrey Andrews to carry out his work when it knew Jeffrey Andrews was transitioning without an access platform;
h. required the F.H. Paschen, S.N. Nielsen & Associates, LLC crew members to work around the subject settling tank when it knew it was extremely muddy and knew that the inside of the chamber contained excessive water;
i. knowingly allowed Jeffrey Andrews to work in a confined work site in sloppy, rainy, muddy, and wet weather conditions;
j. willfully failed to provide a wide enough opening so that the slope of the ladder could be adequately extended, allowing Jeffrey Andrews to work safely when it knew the opening was too small to allow for a proper slope of the ladder;
k. willfully failed to provide fall restraints to Jeffrey Andrews when it knew Jeffrey Andrews did not have fall restraints during the transitioning stage;
l. [the District's] on-site engineer willfully failed to provide the necessary requirements for water site control, as per the contract;
m. willfully failed to provide safe, suitable site-control to Jeffrey Andrews, as per the contract; and
n. knowingly failed to properly monitor the work activities of the F.H. Paschen, S.N. Nielsen & Associates, LLC crew members."

         ¶ 9 On March 4, 2014, defendant filed a motion to dismiss the second amended complaint pursuant to section 2-615 of the Code of Civil Procedure. 735 ILCS 5/2-615 (West 2012). Defendant argued that the complaint failed to state a cause of action for willful and wanton conduct because it did not allege that defendant had knowledge of any prior accidents or injuries. On April 23, 2014, the trial court granted in part and denied in part the motion to dismiss. The court found that plaintiff had failed to plead adequate causes of action for the willful and wanton failure to supervise. Accordingly, the court struck with prejudice the allegations of willful and wanton supervision set forth in paragraphs 30(b) and 30(c) of the two willful and wanton counts corresponding to Jeffrey and Becky Andrews in the complaint.

         ¶ 10 On October 22, 2014, defendant filed a motion to dismiss the second amended complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure. Id. § 2-619(a)(9). Defendant argued that it owed no duty to plaintiff based on the general rule that one who employs an independent contractor is not liable for the acts or omissions of the independent contractor. Moreover, defendant argued that it did not retain sufficient control over the contractor's work to establish liability pursuant to the "retained control" exception set forth in section 414 of the Restatement (Second) of Torts. See Restatement (Second) of Torts § 414 (1965). The trial court denied the motion, finding an issue of fact precluded dismissal of the case.

         ¶ 11 Subsequently, on April 11, 2016, defendant filed a motion for summary judgment arguing that defendant was immune from liability under sections 2-109 and 2-201 of the Tort Immunity Act (745 ILCS 10/2-109, 2-201 (West 2012)). These sections immunize a local governmental entity from liability for injuries arising out of its employee's acts or omissions while determining policy and exercising discretion. Id. However, defendant did not support its immunity defense with evidence that its employees made discretionary or policy decisions with respect to the two-ladder configuration that resulted in Andrews's injuries. In fact, defendant referenced the deposition testimony of seven witnesses, all of whom testified that no District employees weighed in on worksite safety decisions.

         ¶ 12 For example, Greg Florek, a senior civil engineer for the District and the resident engineer assigned to the project, testified that the District had nothing to do with how the contractor performed its work or with safety aspects of the work. Florek admitted that he had no education or training in construction safety. He testified that he walked the job site once or twice a day in order to check the progress and confirm that the work was being done in compliance with the contract. Florek testified that he did not know when the two ladders were placed in the effluent chamber at the site of the accident, nor did he recall ever seeing that type of ladder configuration prior to the accident. He also stated that he never inspected the ladders involved in the occurrence or assessed whether they complied with any codes, rules, or regulations.

         ¶ 13 Defendant also cited the deposition testimony of John Lemon, defendant's principal civil engineer, and Douglas Pelletier, an employee of the general contractor and the senior manager on the project. Lemon testified that defendant did not supervise the means and methods of the work performed by contractors and did not have a designated person responsible for project safety. He testified that the general contractor was solely responsible for safety. Pelletier testified that the contractor was responsible for stopping any unsafe work at the job site. He also testified that defendant did not enforce safety or tell the workers how to do their work.

         ¶ 14 Despite the lack of evidence showing that any safety decisions were made by its employees, defendant argued it was immune from liability based solely on its contract with the Joint Venture. The contract language specified that defendant's engineer "may disapprove and reject" any "procedures, methods, structures or equipment *** which seem[ed] to him to be unsafe for the work hereunder." Defendant argued that this language reserved its right to make decisions concerning safety. It argued that the reservation of the right to exercise discretion, standing alone, is sufficient to invoke discretionary immunity under the Tort Immunity Act, even if that right is never exercised. In addition, defendant argued, its "decision[s] on what contractor to hire, the contractor's scope of work, the terms and conditions by which the work was to be performed, and decisions regarding delegation as to means and method and safety are all discretionary acts."

         ¶ 15 The trial court agreed and entered summary judgment in defendant's favor. The court ruled that "the [District] engineer had discretionary authority to make policy determinations under the terms of the contract between [the District] and subcontractor Paschen to enforce project safety." Based on the contract language, the court concluded that defendant was entitled to absolute immunity under sections 2-109 and 2-201. Plaintiffs motion to reconsider was denied by the trial court.

         ¶ 16 Plaintiff appealed two of the trial court's rulings: (1) the order dismissing the claims for willful and wanton supervision set forth in paragraphs 30(b) and 30(c) of two counts in the second amended complaint and (2) the order granting summary judgment for defendant on the remaining claims based on tort immunity. The appellate court reversed the trial court's judgment on both issues and remanded for further proceedings. 2018 IL App (1st) 170336, ¶¶ 32-33. On the first issue, the court held that the allegations of willful and wanton supervision were sufficient to defeat a motion to dismiss. Id. ¶ 17. On the second issue, the court held that defendant failed to prove its entitlement to immunity under section 2-201 and, thus, summary judgment was improper on the remaining willful and wanton claims.[3] Id. ¶¶ 18-28. The court held, "[i]n this case, even if Florek was in a position where he was entitled to make determinations of policy and exercise discretion, there is no evidence that he was making policy or exercising discretion with respect to the act or injury [sic] from which Andrews's injury resulted." Id. ¶ 21. "To the contrary, Florek testified and defendant has remained steadfast throughout the case that Florek did not know about the ladder configuration." Id. The court concluded, "[j]ust because a party has a right to exercise discretion does not mean that it did exercise discretion." Id. ¶ 28.

         ¶ 17 Defendant filed a petition for leave to appeal in this court, which we granted. Ill. S.Ct. R. 315(a) (eff. July 1, 2018). We also allowed the Illinois Association of Defense Trial Counsel to file an amicus curiae brief in support of defendant's position and the Illinois Trial Lawyers' Association to file an amicus curiae brief in support of plaintiffs' position. Ill. S.Ct. R. 345 (eff. Sept. 20, 2010).

         ¶ 18 ANALYSIS

         ¶ 19 On appeal to this court, defendant asks that we reverse the appellate court's judgment and affirm the trial court's entry of summary judgment in its favor. Defendant challenges only the immunity portion of the appellate court's judgment. Thus, the only issue in this appeal is whether defendant established its immunity defense pursuant to sections 2-109 and 2-201 of the Tort Immunity Act.

         ¶ 20 A party is entitled to summary judgment where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2012). Because summary judgment is a drastic means of disposing of litigation, the trial court must construe the evidence in the record strictly against the movant. Adams v. Northern Illinois Gas Co., 211 Ill.2d 32, 43 (2004). Furthermore, the court should grant summary judgment only if the movant's right to a judgment is clear and free from doubt. Id. On review of the trial court's order granting summary judgment, this court must determine whether the existence of a genuine issue of material fact should have precluded the dismissal of the case or, absent such an issue of fact, whether summary judgment was proper as a matter of law. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 116-17 (1993).

         ¶ 21 We review de novo the trial court's order granting summary judgment. Barnett v. Zion Park District,171 Ill.2d 378, 385 (1996). This case involves statutory interpretation, an issue of law also subject to ...

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