FIRST DISTRICT FIRST DIVISION November 5, 2018

No. 1-17-0336

BECKY ANDREWS, as Plenary Guardian of ) Appeal from the Circuit Court of Cook JEFFREY ANDREWS, a Disabled Person, ) County and BECKY ANDREWS, Individually, ) )

Plaintiffs-Appellants, )

)

v. ) Nos. 12 L 48 & 12 L 64 (cons.) ) METROPOLITAN WATER RECLAMATION ) DISTRICT OF GREATER CHICAGO, ) ) Honorable William E. Gomolinski Defendant-Appellee. ) Judge Presiding.

JUSTICE GRIFFIN delivered the judgment of the court, with opinion.

Presiding Justice Mikva and Justice Pierce concurred in the judgment and opinion.

OPINION

¶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. No. 1-17-0336

¶2 I. BACKGROUND

¶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 2

No. 1-17-0336

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)

(745 ILCS 10/1-101 et seq. (West 2016); see

§ 2-201).

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¶9 II. ANALYSIS

¶ 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,

(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,

. 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.

We review the dismissal of a plaintiff’s claims de novo.

Sandholm v. Kuecker,

.

¶ 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.

§ 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,

.

¶ 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,

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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,

(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.

. 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.”

. 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,

. 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.

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¶ 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 that defendant knew using tee-peed ladders over

a 29-foot hole without the required access platform was dangerous. According to plaintiff,

defendant did not employ competent supervision over the project, as it was required to do, to

stop such activity, even though the ladder configuration arguably violated rules and regulations

and defendant’s own safety rules and General Specifications that defendant was obligated to

enforce. See Murray v. Chicago Youth Center,

(2007) (failure to supervise a

known dangerous activity and follow safety rules and administrative guidelines can give rise to a

cause of action for willful and wanton supervision); Hadley v. Witt Unit School District 66,

(1984) (supervisor’s failure to act in the face of a dangerous situation could

constitute actionable willful and wanton misconduct).

¶ 17 Whether conduct is willful and wanton is ultimately a question of fact for the jury.

Cohen,

. This case was at the pleading stage when plaintiff’s claims

premised on willful and wanton supervision were eliminated. Plaintiff may be able to

demonstrate that the workers were engaged in “an obviously dangerous activity” or she might

“introduce evidence of *** particular dangers associated” with the subject activity. See Barr,

; see also Murray,

. Plaintiff’s allegations were sufficient

to defeat the motion to dismiss. Plaintiff might be able to prove that defendant acted with utter

indifference or conscious disregard for Andrews’s safety when it observed or should have

observed an activity it knew to be dangerous, knew or should have known that injury could

result, and failed to act in face of the danger.

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¶ 18 As for plaintiff’s claims based on simple negligence, the trial court entered summary

judgment against plaintiff under section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2­

1005 (West 2016)). Summary judgment is appropriate when the pleadings, depositions,

admissions and affidavits, viewed in a light most favorable to the nonmovant, fail to establish

that a genuine issue of material fact exists, thereby entitling the moving party to judgment as a

matter of law. Id.; Fox v. Seiden,

. We review a trial court’s

decision to grant summary judgment de novo. Illinois Tool Works Inc. v. Travelers Casualty &

Surety Co.,

.

¶ 19 Plaintiff argues that the trial court erred when it entered summary judgment on her

negligence claims by finding that defendant’s engineer, Greg Florek, had exercised discretionary

authority. The Tort Immunity Act states that a local public entity is not liable for an injury

resulting from an act or omission of its employee where the employee is not liable. 745 ILCS

10/2-109 (West 2016). The Tort Immunity Act also states that “a public employee serving in a

position involving the determination of policy or the exercise of discretion is not liable for an

injury resulting from his act or omission in determining policy when acting in the exercise of

such discretion even though abused.”

§ 2-201. The trial court found that “decisions made by

[Florek] concerning safety issues on the construction site involved balancing competing interests

and judgment calls as to what safety measures were needed.” The trial court held that summary

judgment was proper here because “engineer Florek acted with discretionary authority in

supervising the construction project and his decisions were determinations of policy.”

¶ 20 An employee may qualify for discretionary immunity if he holds either a position

involving the determination of policy or a position involving the exercise of discretion. Cabrera

v. ESI Consultants, Ltd.,

. However, an employee who qualifies

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for discretionary immunity based on his responsibilities must also have engaged in both the

determination of policy and the exercise of discretion when performing the act or omission from

which the plaintiff’s injury resulted.

The statute is concerned with both the type of position

held by the employee and the type of action performed or omitted by the employee. Harinek v.

161 North Clark Street Ltd. Partnership,

(1998). Whether the act or

omission in question is discretionary or ministerial must be determined on a case-by-case basis.

Cabrera,

.

¶ 21 In 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 from which Andrews’s injury resulted.

To the contrary, Florek testified and defendant has remained steadfast throughout the case that

Florek did not know about the ladder configuration. Policy determinations, as contemplated by

the Tort Immunity Act, are the decisions that “ ‘require the municipality to balance competing

interests and to make a judgment call as to what solution will best serve each of those

interests.’ ” Harinek,

(quoting West v. Kirkham,

(1992)).

Defendant’s position is that Florek knew nothing of the ladder configuration and therefore could

not have balanced any interests or exercised judgment about its use.

¶ 22 The Illinois Supreme Court recently addressed the application of discretionary immunity

under similar circumstances in Monson v. City of Danville,

. In Monson, the

plaintiff alleged that she was injured when she tripped and fell on an uneven sidewalk that the

city-defendant was negligent in maintaining. Id. ¶¶ 1, 32. The city argued that it was immune

from liability because the director of public works had recently undertaken to inspect the city’s

sidewalks as part of a project to make repairs. Id. ¶¶ 4-5, 32. The director of public works

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testified that he made repair decisions on a case-by-case basis by walking along the sidewalks,

inspecting them, and determining what areas were in need of repair. Id. He testified that although

he did not specifically remember the piece of concrete that allegedly caused the plaintiff’s fall,

his staff inspected every portion of sidewalk in that area so he must have inspected it and used

his discretion to determine that the particular portion of sidewalk did not need to be repaired. Id.

¶¶ 5-6.

¶ 23 Our supreme court held that the city-defendant in Monson was not immune from liability.

Id. ¶ 39. The court reasoned that the city’s immunity argument must fail because the city did not

present “evidence documenting the decision not to repair the particular section of sidewalk at

issue in this case.” Id. ¶ 35. This case is no different in that respect. Contrary to presenting

evidence that he was aware of the condition giving rise to the injury and disregarded it,

defendant has strenuously objected to any insinuation that it had any knowledge of the

configuration being utilized. Under Monson, the impetus is on defendant to “present sufficient

evidence that it made a conscious decision not to perform the repair.” Id. ¶ 33. “The failure to do

so is fatal to the claim [of immunity].” Id.

¶ 24 Defendant has not shown that its alleged failure was an exercise of discretion because

there is no evidence that it was aware of or made the decision to implement its goal of sealing the

tanks. It presented no evidence at all documenting any decision or refusal to decide whether to

use the ladder configuration that resulted in Andrews being injured—there was no decision-

making process at all. Like in Monson, the record contained “no evidence of the City’s decision-

making process with respect to the specific site of plaintiff’s accident.” Id. ¶ 38. There were “no

facts regarding the City’s assessment of the actual site.” Id. Plaintiff did not present any evidence

regarding “whether anyone even took note of a sidewalk deviation (or ladder configuration) at

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that location, or whether it was simply overlooked.” Id. In this case, defendant claims it knew

nothing about the procedures being used, and thus, the record before us does not contain

sufficient evidence to establish that defendant’s handling of the matter constituted an exercise of

discretion. See id.

¶ 25 Defendant points to some earlier appellate court cases, examining what constitutes a

discretionary act and policy determination, where we found that a municipality was entitled to

immunity. See, e.g., Wrobel v. City of Chicago,

(2000) (city was

immune from liability because its laborers tasked with filling potholes were required to

determine the manner in which to fill them and how to allocate their time and resources);

Harinek,

(a fire marshal assembling a group of people during a fire drill was

undertaking a discretionary act because the marshal had to plan and conduct the drill and also

balance various other interests competing for the time and resources of the department);

Cabrera,

(city was immune from liability from claims by a

construction worker that fell from a city bridge while working on a construction project because

the city’s supervision of the worker’s employer was discretionary).

¶ 26 In Wrobel, the city was alleged to have been negligent because it knew about the pothole,

but unreasonably repaired it. Wrobel,

. In Harinek, the fire marshal

was alleged to have been negligent in conducting a fire drill that was “carried out pursuant to a

plan developed by the marshal before the drill began.” Harinek,

. The situation

in both of those cases is readily distinguishable from this case when Monson is applied because

the defendant in those cases knew of the injurious condition and took measures in relation to that

condition. Here, we have a defendant claiming ignorance of the condition giving rise to the

injury altogether.

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¶ 27 Cabrera, on the other hand, is more difficult to square with the facts of this case, in light

of the supreme court’s decision in Monson. In Cabrera, a construction worker was injured when

he fell into a pit while working to paint a bridge in Chicago. Cabrera,

. The project was governed by documents similar to those that governed the work in this

case, such as that safety responsibilities were delegated to the contractors, with the city providing

oversight and having a duty to ensure the work was being done according to the contracts. Id.

¶¶ 34, 42, 46. When the plaintiff fell, the city and its agents had no notice of the putatively

dangerous condition that gave rise to the injury. Id. ¶¶ 46, 55. We held that the city was immune

from liability in tort because the contract governing the project gave the city the right to “ ‘reject

or require modification of any proposed or previously approved order of procedure, method,

structure or equipment.’ ” Id. ¶ 125. We held that, “[b]ecause of this contractual provision, the

City’s supervision of Era Valdivia was discretionary, meaning the City is immune pursuant to

section 2-201.” Id.

¶ 28 After Monson, the immunity analysis done in Cabrera is untenable. Simply having the

right under the construction contracts to reject methods the contractors might use does not

amount to automatic discretionary immunity for any injury resulting from any methods used in

the construction. Instead, courts are required to look at the specific act or omission and decide

whether the defendant was “engaged in both the determination of policy and the exercise of

discretion when performing the act or omission from which the plaintiff’s injury resulted.”

(Emphasis added and emphases omitted.) Id. ¶ 122. Here, the act or omission from which

plaintiff’s injury is alleged to have resulted is defendant allowing the workers to repeatedly use

an unsafe ladder configuration. Defendant claims it knew nothing about the utilization of that

method. Thus, defendant has not met its evidentiary burden of showing that it exercised

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discretion when allowing the workers to use the putatively unsafe method. See Monson,

, ¶¶ 31, 34. Just because a party has a right to exercise discretion does not mean that it did

exercise discretion.

¶ 29 Plaintiff also argues that she was denied equal protection of the laws by virtue of Jeffrey

Andrews, a construction worker, being subjected to a more stringent standard for recovery under

the Tort Immunity Act (745 ILCS 10/2-201 (

)). Plaintiff maintains that the application

of Cabrera,

, and In re Chicago Flood Litigation,

(1997), to the Tort Immunity Act makes it unreasonably difficult for a construction injury victim

such as Jeffrey Andrews to defeat tort immunity as compared to someone injured in a

nonconstruction capacity. Plaintiff argues that the court in those cases and the trial court here

failed to scrutinize Florek’s actions on the job site and only focused on his position as supervisor

and the documents governing the project, ignoring the second prong of the Harinek analysis. See

Harinek,

(the immunity statute “is concerned with both the type of position

held by the employee and the type of action performed or omitted by the employee” (emphasis in

original)).

¶ 30 The guarantee of equal protection requires that the government treat similarly situated

individuals in a similar manner. American Federation of State, County, & Municipal Employees

(AFSCME), Council 31 v. State,

. We need not resolve plaintiff’s

equal protection argument in light of our reversal on other grounds.

¶ 31 III. CONCLUSION

¶ 32 Accordingly, we reverse and we remand for further proceedings.

¶ 33 Reversed and remanded.

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