Illinois Appellate Court Reverses Dismissal of Aggravated Negligence Claim

A Cook County judge had dismissed the aggravated negligence claims based on a 2005 Illinois Appellate Court decision. In that case, there was a ruling that “prior knowledge of similar acts is required” to hold a public entity liable for willful and wanton supervision.

The lawsuit arose out of the claim of willful and wanton supervision that Becky Andrews pursued as Jeffrey Andrews’s plenary guardian against the Metropolitan Water Reclamation District of Greater Chicago (Water Reclamation District). The lawsuit did not allege that anyone had previously been injured by the hazardous condition, a very dangerous cross-over between two ladders that allegedly caused head injuries to Andrews from a 29-foot fall to the bottom of the concrete chamber.

Andrews was working as a cement finisher for a joint venture, which the Water Reclamation District hired for a construction project at a water treatment plant.

In reversing, the Illinois Appellate Court, First District, explained that the Illinois Supreme Court’s 2017 decision in Barr v. Cunningham “made it clear that willful and wanton misconduct and supervision can lead to a viable claim in the absence of evidence of prior injuries.”

The Cook County judge was also found to have erred in granting the Water Reclamation District’s motion for summary judgment on claims by Becky Andrews that the district was liable for ordinary negligence based on the alleged carelessness of the engineer who supervised the construction project for the district.

Although the judge decided the district was insulated by the immunity that Section 2-201 of the Local Governmental Employees Tort Immunity Act provides for an employee’s discretionary policy decision, the engineer, Greg Florek, reportedly testified he was not aware of the alleged hazardous conditions. Because the district insisted “Florek did not know about the ladder configuration,” the appellate court concluded the trial court chose not to establish Florek “was making policy or exercising discretion with respect to the act or injury from which Andrews’ injuries resulted.”

The Illinois Tort Immunity Act states that a local public entity that supervises an activity on public property is not liable for injury unless the local public entity is guilty of willful and wanton conduct in its supervision proximately causing the injury. Section 3-108(a).

For purposes of a Tort Immunity Act, the General Assembly has defined “willful and wanton conduct” as a “course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows another indifference to or conscious disregard for the safety of others or their property.” Section 1-210.

The plaintiff in this case argued that she sufficiently alleged that the Water Reclamation District 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 known rules and regulations to prevent injury, despite the agreed requirement that defendant enforce the subject safety rules and general specifications for the project.

The trial judge’s dismissal was based on its interpretation of the Tort Immunity Act and case law interpreting that act.

The Illinois Supreme Court recently addressed the application of discretionary immunity under similar circumstances in Monson v. City of Danville, 2018 IL 122486. 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. 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 the project to make repairs.

The director of public works 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. 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.

The Illinois Supreme Court held in that case that the city/defendant in Monson was not immune from liability. 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.”

This case is no different in that respect. Contrary to presenting evidence that Jeffrey Andrews 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 dangerous configuration being utilized.

Under the Monson decision, the impetus is on defendant to “present sufficient evidence that it made a conscious decision not to perform the repair.” “The failure to do so is fatal to the claim of immunity.”

Like the Monson case, the record contained no evidence of the city’s decision-making process with respect to the specific site of plaintiff’s accident. There were no facts regarding the city’s assessment of the actual site.

In this case, defendant claimed it knew nothing about the procedures being used, and thus, the record before the court did not contain sufficient evidence to establish that defendants handling of the matter constituted an exercise discretion and therefore, the summary judgment order was reversed and the case remanded for further disposition to the trial court.

Andrews v. Metropolitan Water Reclamation District, 2018 IL App (1^st) 170336 (Nov. 5, 2018).

Kreisman Law Offices has been handling catastrophic injury lawsuits, truck accident lawsuits, work injury cases and construction site injury lawsuits for individuals, families and loved ones who have been injured, harmed or killed by the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Mundelein, Woodstock, Cary, Libertyville, Romeoville, Bensenville, Bolingbrook, Joliet, Elgin, Aurora, Midlothian, Crestwood, Chicago (Wicker Park, Rogers Park, Albany Park, Gresham, Austin, North Lawndale), Lincolnshire, Lincolnwood and Long Grove, Ill.