Jeffrey Andrews was working as a cement finisher for F.H. Paschen S.N. Nielsen and Associates, LLC (“Paschen”) on a project for the Metropolitan Water Reclamation District of Greater Chicago (“Water Reclamation District” or “district”), a governmental entity. He fell 29 feet from a ladder to the bottom of a water chamber where he was applying sealant.
The worksite was muddy that day, and the chamber in which he fell had three feet of standing water in it. The other workers, along with Andrews, were required to use a ladder made by the construction crew for part of the descent before “pivoting” by stepping over onto a commercial fiberglass ladder for the remainder of the trip.
There was no platform between the two ladders. Andrews slipped while attempting to transfer between the two ladders landing on a co-worker, breaking multiple bones and suffering “severe, career-ending head injuries.”
Becky Andrews, Jeffrey’s wife and plenary guardian for Jeffrey, filed the lawsuit against the Water Reclamation District on his behalf claiming construction negligence, willful and wanton negligence and loss of consortium.
Furthermore, Becky Andrews alleged negligence by Greg Florek, a district engineer. The work that was being done was governed by the Water Reclamation District’s general specifications but delegated the issue of construction safety to a joint venture between Paschen and IHC Construction. The responsibility for “enforcing the general specifications” was delegated to the district’s engineer.
The Water Reclamation District moved for summary judgment and the trial court granted it on the basis that Becky Andrews could not establish that Florek, the district engineer, knew of the ladder configuration in advance. The District also claimed that the district was immune from prosecution under the Local Governmental and Governmental Employees Tort Immunity Act because Florek was “acting with discretionary authority and was making policy determinations.”
Following the granting of the summary judgment motion, she appealed. On appeal, she took issue with the trial court’s assertion that there was no reason Florek should have known about the ladder configuration because there had been no prior injuries.
‘The trial court concluded that there was no basis for the claim’s willful and wanton negligence because of its ruling regarding the “no prior injuries” element. The appeals panel disagreed, emphasizing that prior injuries are merely one form of proof, but that willful and wanton negligence can be shown by “some evidence that the activity is generally associated with a risk of serious injuries.” This issue of fact, it was concluded, would be better suited for the jury to decide. Because of this, the appellate court reversed the grant of summary judgment on the willful and wanton counts.
The appellate court then considered the simple negligence count. The trial court granted summary judgment on the basis that Florek was immune because he was using this discretionary authority to make policy determinations for a governmental entity — the district.
The appellate court disagreed with that conclusion, noting that Florek’s testimony was consistent and that he was never aware of the ladder configuration, not that he approved of it as policy within his discretionary authority.
For discretionary immunity to apply, evidence would need to show that Florek made a conscious decision not to fix the ladder arrangement. To be merely unaware of it is not an exercise of discretion and does not grant discretionary immunity, the court stated.
Accordingly, the Illinois Appellate Court for the First District reversed and remanded the case back to the trial court for further proceedings.
Becky Andrews, as plenary guardian of Jeffrey Andrews v. Metropolitan Water Reclamation District of Greater Chicago, 2018 IL App (1st) 170336 (Nov. 5, 2018).
Kreisman Law Offices has been handling construction site injury lawsuits, catastrophic injury cases, traumatic brain injury lawsuits and product defect cases 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 Westchester, Wilmette, Arlington Heights, Orland Park, Forest Park, Crestwood, Inverness, Long Grove, Chicago (Little Italy, Back of the Yards, Wicker Park, Little Village, Chinatown, Lake Calumet), Deerfield, Vernon Hills, Buffalo Grove, Alsip, Blue Island and South Holland, Ill.
Related blog posts: