Andrews v. Metro. Water Reclamation Dist. of Greater Chi.
| Decision Date | 05 November 2018 |
| Docket Number | No. 1-17-0336,1-17-0336 |
| Citation | 2018 IL App (1st) 170336,138 N.E.3d 716,435 Ill.Dec. 102 |
| Parties | Becky ANDREWS, as Plenary Guardian of Jeffrey Andrews, a Disabled Person, and Becky Andrews, Individually, Plaintiffs-Appellants, v. METROPOLITAN WATER RECLAMATION DISTRICT OF GREATER CHICAGO, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Edward G. Willer and Francis Patrick Murphy, of Corboy & Demetrio, P.C., of Chicago, for appellants.
Robert J. Winston and W. Scott Trench, of Brady, Connolly & Masuda, P.C., of Chicago, for appellee.
¶ 1 This case concerns a construction accident at a project owned and operated by defendant the Metropolitan Water Reclamation District of Greater Chicago. The trial court dismissed plaintiff's claims for willful and wanton misconduct on the basis that no suit may be maintained for willful and wanton conduct without allegations that a similar prior injury occurred because of the condition from which the injury resulted. The trial court later entered summary judgment against plaintiff on her claims that defendant was negligent, finding that defendant, a public entity, is immune from suit under the circumstances. We reverse and remand for further proceedings.
¶ 3 Jeffrey Andrews, whose interests are represented here by plaintiff Becky Andrews, worked as a cement finisher and was employed by F.H. Paschen, S.N. Nielson and Associates, LLC (Paschen). Defendant, the Metropolitan Water Reclamation District of Greater Chicago, was embarking on a project at 400 East 130th Street in Chicago. A joint venture was formed titled F.H. Paschen, S.N. Nielson/IHC Construction Joint Venture (Joint Venture), that entered into a contract with defendant to be the contractor to construct "primary settling tanks and grit removal facilities."
¶ 4 During the course of the project, Andrews was assigned to apply a sealant at the bottom of a 29-foot effluent chamber of a settling tank. In order to reach the bottom of the chamber, Andrews and a coworker were required to use a ladder made by the construction crew for a portion of the descent. Then, Andrews and the coworker would have to pivot onto a commercially manufactured fiberglass ladder for the remainder of the descent. There was not a horizontal access platform for transferring between the two ladders, the workers were just expected to step over from one ladder to the other. The process had been used several times to reach the bottom of other tanks on this particular construction project.
¶ 5 The project site experienced heavy rain prior to the subject instance when Andrews was expected to use the ladders to apply the sealant at the bottom of a chamber. The site was muddy and the chamber had approximately three feet of standing water in it. Andrews had to wear boots. On that occasion, while Andrews tried to pivot from the job-made ladder to the fiberglass one, he fell 29 feet down the chamber and landed on his coworker who had already descended. Andrews suffered broken bones and severe, career-ending head injuries.
¶ 6 The work at the project was governed by the Metropolitan Water Reclamation District of Greater Chicago: General Specifications (General Specifications), among other rules and regulations. Plaintiff points to provisions in the General Specifications and elsewhere that she claims dictated the means and methods of the work and contained safety provisions from which defendant could not deviate. Plaintiff alleges that the dangerous ladder configuration—along with the failure to maintain a safe, dry work site—violated the project's governing documents and other applicable rules and regulations and constituted negligence on behalf of defendant.
¶ 7 Plaintiff's theory of negligence relies on the alleged acts and omissions by defendant's engineer on the project, Greg Florek. The General Specifications delegated construction safety to the Joint Venture, but gave defendant's engineer some degree of control regarding how the work was carried out, including that he enforce the General Specifications. Although defendant had no role in envisioning or creating the ladder configuration, there is a question whether, prior to Andrews's injury, defendant was aware of the workers using that ladder configuration.
¶ 8 Plaintiff, Andrews's wife, filed this case for construction negligence, loss of consortium for that negligence, willful and wanton construction negligence, and loss of consortium for that willful and wanton construction negligence. The trial court dismissed the willful and wanton claims on the basis that plaintiff could not establish that defendant had knowledge of prior injuries resulting from the allegedly unsafe ladder configuration. The trial court later entered summary judgment for defendant on plaintiff's claims based on simple negligence, holding that defendant could not be liable for Florek's alleged acts and omissions because Florek acted with discretionary authority and was making policy determinations. Based on defendant's conclusion that it was exercising discretion, it argues that it is entitled to discretionary immunity under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) ).
¶ 10 The trial court dismissed plaintiff's claims based on willful and wanton conduct under section 2-615 of the Code of Civil Procedure ( 735 ILCS 5/2-615 (West 2016) ). A section 2-615 motion to dismiss attacks the sufficiency of a complaint and raises the question of whether a complaint states a cause of action upon which relief can be granted. Id. ; Fox v. Seiden , 382 Ill. App. 3d 288, 294, 320 Ill.Dec. 592, 887 N.E.2d 736 (2008). All well-pleaded facts must be taken as true, and any inferences should be drawn in favor of the nonmovant. Jones v. Brown-Marino , 2017 IL App (1st) 152852, ¶ 19, 413 Ill.Dec. 96, 77 N.E.3d 701. A section 2-615 motion to dismiss should not be granted unless no set of facts could be proved that would entitle the plaintiff to relief. Id. We review the dismissal of a plaintiff's claims de novo . Sandholm v. Kuecker , 2012 IL 111443, ¶ 55, 356 Ill.Dec. 733, 962 N.E.2d 418.
¶ 11 The Tort Immunity Act ( 745 ILCS 10/1-101 et seq. (West 2016) ) states that a local public entity that supervises an activity on public property is not liable for an injury unless the local public entity is guilty of willful and wanton conduct in its supervision proximately causing such injury. Id. § 3-108(a). For purposes of the Tort Immunity Act, the General Assembly has defined " ‘[w]illful and wanton conduct’ " as "a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property." Id. § 1-210. Whether a defendant's conduct is willful and wanton, for purposes of the Tort Immunity Act, is a question for the jury. Cohen v. Chicago Park District , 2017 IL 121800, ¶ 27, 422 Ill.Dec. 869, 104 N.E.3d 436.
¶ 12 Plaintiff argues that the trial court erred when it dismissed her willful and wanton supervision claims. Plaintiff contends that she sufficiently alleged that defendant manifested a conscious disregard for the safety of Jeffrey Andrews when it should have known about the dangerous ladder configuration and failed to enforce the rules and regulations to prevent injury, despite the agreed requirement that defendant enforce the subject safety rules and General Specifications for the project.
¶ 13 The trial court's dismissal was based on its interpretation of the Tort Immunity Act and case law interpreting that Act. The trial court stated on the record its belief that the willful and wanton supervision claim could not stand, absent some type of allegation that the defendant has prior knowledge of a similar injury arising from the condition (citing Floyd v. Rockford Park District , 355 Ill. App. 3d 695, 291 Ill.Dec. 418, 823 N.E.2d 1004 (2005) ).
¶ 14 In Floyd , the court held that "[p]rior knowledge of similar acts is required to establish a ‘course of action’ " in order for a public entity to be liable for willful and wanton supervision. Id. at 701, 291 Ill.Dec. 418, 823 N.E.2d 1004. The Floyd court further held that "even if there was prior knowledge of a similar injury, a plaintiff must plead facts establishing the similarities between the prior injury and the plaintiff's injury." Id. at 702, 291 Ill.Dec. 418, 823 N.E.2d 1004. Here, the trial court stated that plaintiff's claim could not stand because "you've got no prior acts; you've got no prior injuries."
¶ 15 We disagree with the trial court's reasoning that similar prior injuries are always required for willful and wanton supervision claims to survive against a public entity. The arguments presented, and the trial court's ruling, were based solely on the willful and wanton exception to the Tort Immunity Act ( 745 ILCS 10/3-108 (West 2016) ). The Illinois Supreme Court recently explained that "[t]o establish willful and wanton conduct in the absence of evidence of prior injuries , Illinois courts have required, at minimum, some evidence that the activity is generally associated with a risk of serious injuries." (Emphasis added.) Barr v. Cunningham , 2017 IL 120751, ¶ 21, 417 Ill.Dec. 667, 89 N.E.3d 315. Our supreme court has made it clear that willful and wanton misconduct in supervision can lead to a viable claim "in the absence of evidence of prior injuries," so dismissing plaintiff's claims on that basis alone is contrary to prevailing law.
¶ 16 Here, plaintiff claims that defendant should have known that the improper ladder configuration was being used and knew or had reason to believe that a serious injury could occur as a result of using the ladder configuration—which violated safety rules, regulations, and standard practices. Specifically, plaintiff alleges...
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Andrews v. Metro. Water Reclamation Dist. of Greater Chi.
...to immunity and entered summary judgment for defendant. The appellate court reversed the circuit court's judgment. 2018 IL App (1st) 170336, 435 Ill.Dec. 102, 138 N.E.3d 716. We now affirm the judgment of the appellate court, reverse the judgment of the circuit court, and remand for further......