Epstein v. Chicago Bd. of Educ.

• Decision Date: 17 October 1997
• Docket Number: No. 80965,80965
• Citation: 178 Ill.2d 370,687 N.E.2d 1042,227 Ill.Dec. 560
• Parties: , 227 Ill.Dec. 560, 123 Ed. Law Rep. 285 Le Roy James EPSTEIN, Appellee, v. The CHICAGO BOARD OF EDUCATION, Appellant.
• Court: Illinois Supreme Court

Page 1042

687 N.E.2d 1042

178 Ill.2d 370, 227 Ill.Dec. 560, 123

Ed. Law Rep. 285

Le Roy James EPSTEIN, Appellee, v. The CHICAGO BOARD OF EDUCATION, Appellant.

No. 80965.

Supreme Court of Illinois.

Oct. 17, 1997.

Rehearing Denied Dec. 1, 1997.

[178 Ill.2d 372] [227 Ill.Dec. 562] Nancy J. Arnold, Kralovec, Marquard, Doyle & Gibbons, Chicago, for Chicago Board of Education.

Michael W. Rathsack, Chicago, for Le Roy James Epstein.

Michael Resis, Querrey & Harrow, Ltd., Chicago, for Charles H. Bruckner & Sons.

Steven J. Kleinman, Park District Risk Management Agency, Wheaton, for Amicus Curiae Illinois Association of School.

Justice BILANDIC delivered the opinion of the court:

The Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill.Rev.Stat.1987, ch. 85, par. 1-101 et seq.) provides in section 3-108(a) that "neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property." Ill.Rev.Stat.1987, ch. 85, par. 3-108(a). This appeal addresses the interplay between section 3-108(a) immunity and claims brought against local public entities based upon violations of the Structural Work Act (Ill.Rev.Stat.1987, ch. 48, par. 60 et seq.).

BACKGROUND

The plaintiff, Le Roy James Epstein, brought this cause of action against the Chicago Board of Education (Board) and a contractor in the circuit court of Cook County, seeking to recover damages pursuant to the Structural Work Act. The contractor subsequently filed a third-party complaint against another contractor and the project architect.

The plaintiff's third-amended complaint against the Board contained only a Structural Work Act claim. The complaint alleged that the Board engaged a number of contractors to perform renovation work at a Chicago public school. The plaintiff was employed by a subcontractor to work on the project as a pipefitter. On June 23, 1987, the plaintiff was standing on a ladder while using a hand-held power tool to grind a groove into the wall. He fell from the ladder and was injured.

The complaint charged that the Board was in charge of the plaintiff's construction work at the school. The complaint further charged that the Board had violated the Structural Work Act by allowing the plaintiff to use a ladder rather than a scaffold, and by failing to perform the following acts: stop the plaintiff's grinding work; inform the plaintiff's employer that a scaffold should be used; enforce OSHA safety measures pertaining to workers at elevated levels; require the grinding work to be performed from a scaffold; and furnish the plaintiff with a scaffold or other suitable support.

The Board moved to dismiss the Structural Work Act complaint against it pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)). The Board argued that the allegations in the plaintiff's complaint amounted to charges that the Board had failed to supervise the construction work on its premises, actions for which the Board is immune from liability under section 3-108(a) of the Tort Immunity Act. In support of this proposition, the Board relied on the appellate court decision of Eiben v. E.J. Cattani & Sons, Inc., 217 Ill.App.3d 609, 160 Ill.Dec. 557, 577 N.E.2d 882 (3d Dist.1991).

The plaintiff responded with the countervailing appellate court opinion in Eck v. McHenry County Public Building Comm'n, 237 Ill.App.3d 755, 178 Ill.Dec. 586, 604 N.E.2d 1109 (2d Dist.1992). The Eck court held that section 3-108(a) of the Tort Immunity Act never applies to bar a Structural Work Act claim. Eck, 237 Ill.App.3d at 757-63, 178 Ill.Dec. 586, 604 N.E.2d 1109. In the alternative, the plaintiff contended that section 3-108(a) is not applicable to his case because the Board's actions amounted to more than a failure to supervise.

The circuit court granted the Board's motion and dismissed the plaintiff's complaint. Following Eiben, the circuit court held that The appellate court reversed the circuit court's dismissal and remanded for further proceedings. Nos. 1-93-1174, 1-93-2071 cons. (unpublished order under Supreme Court Rule 23). Following Eck 's progeny (Serrano v. Chicago Board of Education, 257 Ill.App.3d 888, 196 Ill.Dec. 86, 629 N.E.2d 631 (1st Dist.1994)), the appellate court held that section 3-108(a) never provides immunity to local governmental entities for claims asserted under the Structural Work Act. In addition, the appellate court found the dismissal of the plaintiff's complaint to be improper for an alternative reason. The appellate court held that the plaintiff's pleadings and evidence raised a question of material fact as to whether the Board's conduct amounted to more than mere supervision of the construction at the school.

[227 Ill.Dec. 563] the plain language of section 3-108(a) provides the Board with immunity for its failure to supervise the construction activities. The circuit court then issued a Supreme Court Rule 304(a) finding (155 Ill.2d R. 304(a)), following which the plaintiff appealed the circuit court's order granting the Board's motion to dismiss.

We allowed the Board's petition for leave to appeal (155 Ill.2d R. 315(a)) to resolve the conflict in the appellate court on whether section 3-108(a) of the Tort Immunity Act ever provides immunity from Structural Work Act claims.

ANALYSIS

I

The Board contends that the appellate court erred in holding that section 3-108(a) of the Tort Immunity Act never provides local governmental units with immunity from Structural Work Act claims.

The history of sovereign immunity in Illinois has been discussed frequently in this court's opinions (see, e.g., Burdinie v. Village of Glendale Heights, 139 Ill.2d 501, 506-07, 510-11, 152 Ill.Dec. 121, 565 N.E.2d 654 (1990), overruled in part on other grounds, McCuen v. Peoria Park District, 163 Ill.2d 125, 129-30, 205 Ill.Dec. 487, 643 N.E.2d 778 (1994); Henderson v. Foster, 59 Ill.2d 343, 349-50, 319 N.E.2d 789 (1974)), and we need not reiterate it here. Suffice it to say that the Illinois Constitution of 1970 abolished sovereign immunity in Illinois, except as may be provided by our General Assembly through statutory law. Ill. Const.1970, art. XIII, § 4. The legislature exercised this prerogative, with regard to local governmental units, through its retention of the Tort Immunity Act. As a result, the Tort Immunity Act governs whether and in what situations local governmental units such as the Board are immune from civil liability.

We are here called upon to interpret section 3-108(a) of the Tort Immunity Act. The principles to be applied in construing provisions of the Act are well established:

"[O]ur primary goal is to ascertain and give effect to the intention of the legislature. We seek the legislative intent primarily from the language used in the Tort Immunity Act. We evaluate the Act as a whole; we construe each provision in connection with every other section. [Citation.] If we can ascertain the legislative intent from the plain language of the Act itself, that intent must prevail, and we will give it effect without resorting to other interpretive aids. [Citation.] We must not depart from the plain language of the Act by reading into it exceptions, limitations, or conditions that conflict with the express legislative intent." Barnett v. Zion Park District, 171 Ill.2d 378, 388-89, 216 Ill.Dec. 550, 665 N.E.2d 808 (1996).

Section 3-108(a) states, in relevant part:

"Except as otherwise provided by this Act * * * neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property." Ill.Rev.Stat.1987, ch. 85, par. 3-108(a).

The Board maintains that, under the plain meaning of this provision, local governmental units are immune from liability for any injury caused by a failure to supervise an activity on public property, which includes immunity for the failure to supervise construction activities that form the basis of a Structural Work Act claim. The plaintiff, on the other hand, asserts that the legislature did not intend section 3-108(a) to include within its scope immunity Section 3-108(a) by its plain terms immunizes a local governmental unit's failure to supervise "an activity" on public property. This language clearly applies to the failure to supervise any "activity" on public property, as it does not limit, in any manner, the types of activities which are included. The plaintiff asks us to read exceptions into this provision for both Structural Work Act claims and construction activities. The plaintiff also asks us to limit section 3-108(a)'s provisions to only recreational and scholastic activities. This court has in the past, however, specifically admonished against reading exceptions into or engrafting tacit limitations onto the Tort Immunity Act's language that conflict with the express legislative intent. Barnett, 171 Ill.2d at 388-89, 216 Ill.Dec. 550, 665 N.E.2d 808. To accept the plaintiff's argument would require us to do just that. We therefore conclude that section 3-108(a) allows for no such exceptions or limitations.

[227 Ill.Dec. 564] from Structural Work Act claims. The plaintiff further insists that the legislature did not intend section 3-108(a) immunity to apply to construction-type activities, but rather intended to limit its application to only recreational and scholastic activities. We reject the plaintiff's arguments.

A further evaluation of section 3-108(a), along with the Tort Immunity Act as a whole, also supports our rejection of the plaintiff's argument. Section 3-108(a) grants immunity "[e]xcept as otherwise provided by this Act." Ill.Rev.Stat.1987, ch. 85, par. 3-108(a). Accordingly, section 3-108(a) by its own terms provides that the only exceptions to its grant of immunity are those set forth elsewhere in the Tort Immunity Act. Our review of the entire Tort Immunity Act reveals...