Eck v. McHenry County Public Bldg. Com'n

Decision Date04 December 1992
Docket NumberNo. 2-92-0277,2-92-0277
Citation237 Ill.App.3d 755,178 Ill.Dec. 586,604 N.E.2d 1109
Parties, 178 Ill.Dec. 586 Ronald J. ECK, Jr., Plaintiff-Appellant, v. McHENRY COUNTY PUBLIC BUILDING COMMISSION et al., Defendants-Appellees (Jerome E. Olsen et al., Defendants).
CourtUnited States Appellate Court of Illinois

William F. Ryan, James M. Harman, Doyle & Ryan, Ltd., Chicago, for Ronald J. Eck, Jr.,

David R. Barry, Jr., Matthew J. Schueler, Bollinger, Ruberry & Garvey, Chicago, for McHenry County Public Building Commission, County of McHenry and Jerome E. Olsen.

Thomas F. Baker and R. Glenn Gable, McHenry County State's Attys., James G. Militello, Asst. State's Atty., Woodstock, for the State.

Justice DOYLE delivered the opinion of the court:

Plaintiff, Ronald J. Eck, Jr., filed a six-count complaint in the circuit court of McHenry County against defendants, McHenry County Building Commission (PBC), McHenry County (County), Jerome E. Olsen, and Olsen and Associates alleging negligence and violations of the Illinois Structural Work Act (Ill.Rev.Stat.1991, ch. 48, pars. 60 through 69). Plaintiff appeals from the circuit court's order of PBC's and County's motions to dismiss the Structural Work Act counts. Jerome E. Olsen and Olsen and Associates are not parties to this appeal, and the remaining counts are not the subject of this appeal. The trial court's order contains the requisite Supreme Court Rule 304(a) finding (134 Ill.2d R. 304(a)).

PBC and County contend that section 3-108(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill.Rev.Stat.1991, ch. 85, par. 3-108(a)) bars a cause of action against a local public entity based upon alleged violations of the Illinois Structural Work Act (Ill.Rev.Stat.1991, ch. 48, pars. 60 through 69). The County raises the additional issue of whether section 3-103(a) of the Tort Immunity Act provides it with immunity.

Counts I and III of plaintiff's second amended complaint alleged that on February 21, 1991, defendants, PBC and County, were the owners and general contractors of a structure being erected in the City of Woodstock, Illinois. On that date, plaintiff was employed as a journeyman carpenter with Kiewit Western, Inc. While he performed his duties, a scaffold upon which he was standing collapsed causing him to fall 35 feet to the ground.

Plaintiff further alleged that defendants, individually and through their agents, servants and employees, were present during the course of the construction and erection of the structure; that defendants participated in and coordinated the work being done and designated various work methods; and that defendants maintained and checked the work progress and participated in the scheduling and inspection of the work. Additionally, defendants had the authority to stop the work, refuse work and materials, and order changes. The complaint further alleged that defendants were among the persons, firms, or corporations "having charge" of the construction and erection of the structure.

In his complaint, plaintiff alleged various violations of the Structural Work Act. Defendants allegedly permitted a scaffold to be utilized which was in violation of the prevailing safety codes of the Occupational Safety and Health Administration (OSHA). They also failed to provide adequate catch platforms or other safety devices so as to give proper and adequate protection to the life and limb of the plaintiff and failed to provide a proper scaffold. Plaintiff alleged that, as a proximate result of defendants' conduct, he sustained temporary and permanent injuries resulting in expenditures for medical treatment and a loss of earnings.

In response to plaintiff's original complaint, defendants filed separate motions to dismiss pursuant to section 2-619 of the Code of Civil Procedure. The parties subsequently stipulated that defendants' motions would apply to plaintiff's second amended complaint. In their motions, both PBC and County averred that section 3-108(a) of the Tort Immunity Act barred plaintiff's cause of action based upon the Structural Work Act. County's motion further averred that plaintiff's Structural Work Act cause of action was barred under section 3-103(a) of the Tort Immunity Act (see Ill.Rev.Stat.1991, ch. 85, par. 3-103(a)).

The circuit court entered its order granting defendants' motions to dismiss with prejudice counts I and III of plaintiff's second amended complaint. Plaintiff then filed this timely appeal.

Because of the substantial similarity of counts I and III and the similarity of defendants' motions, we will discuss them together for the purposes of this appeal. Plaintiff's primary appellate contention is that the plain language of the Tort Immunity Act evidences that the legislature did not intend to preclude a cause of action against a local public entity founded upon violations of the Structural Work Act. Defendants respond to the contrary and direct our attention to Eiben v. E.J. Cattani & Sons, Inc. (1991), 217 Ill.App.3d 609, 160 Ill.Dec. 557, 577 N.E.2d 882, wherein the Appellate Court, Third District, held that section 3-108(a) of the Tort Immunity Act barred a Structural Work Act cause of action against Bureau County.

Upon review of a trial court's grant of a motion to dismiss, all well-pleaded allegations in the complaint are taken as true. (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill.2d 502, 505, 92 Ill.Dec. 561, 485 N.E.2d 372; Elliott v. LRSL Enterprises, Inc. (1992), 226 Ill.App.3d 724, 727, 168 Ill.Dec. 674, 589 N.E.2d 1074.) Dismissal of a complaint, or portion thereof, should not be granted under section 2-619 unless it clearly appears that no set of facts can be proved which would entitle plaintiff to recover. (Elliott, 226 Ill.App.3d at 727-28, 168 Ill.Dec. 674, 589 N.E.2d 1074.) This court is concerned only with questions presented by the pleadings. Any allegations which are merely conclusions, unsupported by allegations of specific facts, are not admitted. Elliott, 226 Ill.App.3d at 728, 168 Ill.Dec. 674, 589 N.E.2d 1074.

As a preliminary matter, we note that the purpose of the Tort Immunity Act is to protect local public entities and public employees from liability arising from the operation of government. (Ill.Rev.Stat.1991, ch. 85, par. 1-101.1(a); West v. Kirkham (1992), 147 Ill.2d 1, 11, 167 Ill.Dec. 974, 588 N.E.2d 1104.) By statutory definition, counties and municipal corporations are local public entities. (Ill.Rev.Stat.1991, ch. 85, par. 1-206.) Therefore, PBC, as a municipal corporation (see Ill.Rev.Stat.1991, ch. 85, par. 1044), and County are afforded the immunities and defenses provided by the Tort Immunity Act (see Ill.Rev.Stat.1991, ch. 85, pars. 1-101.1(a), (b)).

On appeal, plaintiff argues that (1) the trial court's ruling is inconsistent with established rules of statutory construction; (2) the legislature intended section 3-108(a) to apply only to completed property; (3) section 3-108(a) cannot be interpreted so as to provide immunity to a governmental entity for supervision thus negating liability under the Structural Work Act; (4) had the legislature intended to confer immunity upon public entities engaged in construction, it would have specifically provided for it in the Tort Immunity Act; and (5) the allegations of the complaint fall under an ultrahazardous activity exception to the Tort Immunity Act. PBC responds that (1) plaintiff's interpretation contradicts the clear language of the statute and ignores other provisions of the Tort Immunity Act; and (2) had the legislature intended to create an exception to the Tort Immunity Act for claims brought under the Structural Work Act, it would have done so. County responds that (1) if the legislature intended section 3-108(a) to apply only to completed property it would have been expressly provided for in the statute; (2) plaintiff's argument fails to consider the statute as a whole; (3) had the legislature intended to create an exception to the Tort Immunity Act for Structural Work Act claims, it would have expressly done so; and (4) notwithstanding the applicability of section 3-108(a), section 3-103(a) confers immunity from Structural Work Act claims.

A statute will be construed by an appellate court independent of the trial court's determination. (Magna Bank v. Comer (1992), 232 Ill.App.3d 300, 304, 173 Ill.Dec. 590, 597 N.E.2d 298.) The fundamental tenet of statutory construction, to which all other canons and rules subordinate, is to give effect to the true intent and meaning of the legislature. (Hernon v. E.W. Corrigan Construction Co. (1992), 149 Ill.2d 190, 194, 172 Ill.Dec. 200, 595 N.E.2d 561.) A court's initial inquiry is directed to the language of the statute itself. (Hernon, 149 Ill.2d at 194, 172 Ill.Dec. 200, 595 N.E.2d 561.) A court, however, should also consider the purpose of the statutory enactment. (Harvel v. City of Johnston City (1992), 146 Ill.2d 277, 283, 166 Ill.Dec. 888, 586 N.E.2d 1217; In re Houlihan (1992), 231 Ill.App.3d 677, 680, 172 Ill.Dec. 910, 596 N.E.2d 189.) Furthermore, the consequences resulting from various constructions must be taken into consideration, and a court should select a construction which leads to a logical result and avoid one which the legislature could not have contemplated. (Klier v. Siegel (1990), 200 Ill.App.3d 121, 124, 146 Ill.Dec. 620, 558 N.E.2d 583.) Moreover, the courts presume that the General Assembly, in passing legislation, did not intend absurdity, inconvenience or injustice. Hernon, 149 Ill.2d at 195, 172 Ill.Dec. 200, 595 N.E.2d 561.

In support of their argument, defendants rely in large measure upon Eiben v. E.J. Cattani & Sons, Inc. (1991), 217 Ill.App.3d 609, 160 Ill.Dec. 557, 577 N.E.2d 882. In Eiben, an employee of a private contractor was injured after falling from a support tower used in conjunction with a pile driver. The employee brought suit against the crane operator, Bureau County and the county highway...

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