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Corboy & Demetrio Pierces Tort Immunity in IL Supreme Court Decision

The Illinois Supreme Court has ruled that the Local Governmental and Governmental Employees Tort Immunity Act does not shield the Metropolitan Water Reclamation District of Greater Chicago (MWRD) from liability in a lawsuit filed by Corboy & Demetrio on behalf of Jeffrey Andrews, a 50-year-old cement finisher who was seriously injured in 2011, while working for a contractor, F. H. Paschen, on a job at the MWRD’s southside Reclamation Plant. 

The state’s highest court, in a 5-2 decision on December 19, 2019, affirmed the appellate court’s ruling—siding with Corboy & Demetrio on the issue of Sec. 2-201 immunity and reversing a lower court ruling that had incorrectly granted immunity.  

In asking the Illinois Supreme Court to affirm the findings of the Illinois Appellate Court, Corboy & Demetrio Partner Edward G. Willer successfully argued that the circuit court erred in finding that the MWRD engineer had exercised authority and made policy determinations under the terms of the contract between MWRD and Andrew’s employer, resulting in immunity.

MWRD had entered into a contract with a joint venture, F.H. Paschen, S.N. Nielsen/IHC Construction, the general contractor for the “Primary Settling Tanks and Grit Removal Facilities” project to be carried out at its Calumet plant. 

Andrews was an employee of F.H. Paschen, S.N. Nielson & Associates, LLC, a member of the Joint Venture.  On April 21, 2011, he was assigned to work at the plant’s primary settling tank. Andrews and a coworker were assigned the job of applying grout to a gate at the bottom of the 29-foot chamber.  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 the 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, Mr. Andrews fell approximately 30 feet and landed on his co-worker, who had already descended to the bottom of the chamber.  Mr. Andrews suffered severe career-ending head injuries.

The defendant argued that engineer’s unawareness of the ladder formation did not defeat its discretionary immunity defense.  It claimed the contract between the District and the Joint Venture delegated safety responsibilities to the contractor and gave its engineer the right, but not the duty, to involve himself in these decisions.  The engineer opted not to make any decisions regarding worker safety. The defendant contended that the engineer’s election as to weigh in on safety issues demonstrated a conscious exercise of discretion under Sec. 2-201of the Act.  The Supreme Court disagreed.

The only disputed issue in the case was whether the MWRD engineer exercised discretion and made a policy determination in connection with the alleged acts of omission that resulted in Mr. Andrews’ injuries.

The Supreme Court in relying upon Monson v. City of Danville, Gutstein v. City of Evanston, and Corning v. East Oakland Township, held that the municipality seeking immunity under Sec. 2-201 of the Act must present evidence of a conscious decision by its employee pertaining to the conduct alleged to have caused the plaintiff’s injuries. 

“It follows that if the employee was totally unaware of a condition known to the plaintiff being injured, he or she could not possibly have exercised discretion with respect to that condition,” the Court said in its opinion.

“In this case, defendant has presented no evidence documenting a decision by its employees with respect to the condition involved in the accident. As the appellate court below held, the record contains no documentation of “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.”

The Court added that the engineer admitted in his deposition that he was totally unaware of the two-ladder setup that allegedly caused Andrews’s injuries. Therefore, he was unable to weigh the risks and benefits and make a conscious decision with respect to the condition involved in the accident.

The Defendant failed to offer a policy rationale that justified immunity, and the Supreme Court could not find one.   

In siding with Willer’s argument, the Illinois Supreme Court found that the MWRD is not 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 Andrews.  Notably, the court rejected the defense argument that a contract provision was enough for the municipal entity to satisfy discretionary requirements under Sec. 2-201. The Court, in so doing, distinguished In Re: Chicago Flood, and followed its later decision in Harinek v. 161 N. Clark Street Ltd. Partnership; it also overruled Cabrera v. EJ Consultants, Ltd. 

Willer stated, “The Illinois Supreme Court, by analyzing the conduct of the MWRD engineer, found that there was no actual exercise of discretion or policy determination and, accordingly, the district did not meet its burden of proof to claim Sec. 2-201 immunity.  The defendant’s attempt to suggest contracting into immunity without an individual’s actual exercise of discretion and lack of policy determination failed both at the Appellate and Supreme Court levels.

Andrews was represented by Corboy & Demetrio Partners Edward G. Willer, Thomas A. Demetrio and Francis Patrick Murphy.

Case info: Becky Andrews et al. v. the Metropolitan Water Reclamation District of Greater Chicago; Docket # 124283; Opinion filed on 12-19-19.

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