The engineer who was in charge of supervising a construction project for the Metropolitan Water Reclamation District of Greater Chicago reportedly conceded he had not been aware of the hazardous condition that allegedly caused a 30-foot fall by a contractor’s employee. The question that attracted dueling amicus curiae briefs in the Illinois Supreme Court was whether the Water District was entitled to an immunity for discretionary policy decisions under Section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act.
With two of the seven Illinois Supreme Court justices dissenting, the Supreme Court concluded that Section 2-201, which grants immunity for acts or omissions involving discretionary policy decisions only applies if the defendant presents “evidence of a conscious decision by its employee pertaining to the conduct alleged to have caused the plaintiff’s injuries.”
And “if the employee was totally unaware of the condition prior to the plaintiff being injured, he or she could not possible have exercised discretion with respect to that condition.”
Applying that standard, the majority of the Illinois Supreme Court ruled that the Water District wasn’t entitled to summary judgment for the incident that grievously injured Jeffrey Andrews.
To get to the bottom of a chamber at the Water District’s Calumet water reclamation plant, Andrews had to climb down a short wooden ladder and maneuver to the top of an adjacent fiberglass ladder. The ladders were angled toward each other, but there was no platform to provide a safe place to make the transition. Andrews allegedly fell 30 feet and suffered severe head injuries when transitioning between the two ladders.
The construction contract gave the Water District’s resident engineer, Greg Florek, authority to “disapprove and reject” any “procedures, methods, structures or equipment” he considered unsafe. But Florek reportedly testified he wasn’t aware of the two-ladder setup before the incident.
A Cook County judge granted the Water District’s motion for summary judgment, but the Supreme Court affirmed the First District’s Appellate Court decision to reverse and remand the case back for further proceedings in the trial court.
The policy reasons for granting immunity are furthered only when the government entity or its employee has engaged in actual decision-making.
In the absence of a judgment call in the weighing of risks and benefits, there is nothing to protect. Any governmental entity can enter into a contract in which it reserves the right to make discretionary decisions. If this guarantees absolute immunity from liability, there is no incentive for local governments to supervise work or maintain their property. Rather, immunizing a non-decision would reward public officials and employees who ignore problems instead of addressing them.
The Water District’s theory that merely entering into a construction contract satisfies the statute is directly contrary to the plain language of Section 2-201. The clear legislative intent is that, for immunity to apply, the governmental employee must actually “exercise” discretion and “determine” policy.
A contractor’s provision giving a municipality the right to exercise discretion and determine policy at some future time is not equivalent to an actual exercise of discretion.
For these and other reasons, the Illinois Supreme Court affirmed the Illinois Appellate Court’s decision reversing the grant of summary judgment in favor of the Water District.
Andrews v. Metropolitan Water Reclamation District of Greater Chicago, 2019 IL 124283 (Dec. 19, 2019).
Kreisman Law Offices has been handling catastrophic injury lawsuits, construction accident lawsuits, truck accidents, forklift injury cases, work injury cases and traumatic brain 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 Stickney, Waukegan, Wheaton, Flossmoor, Olympia Fields, Richton Park, Country Club Hills, Wilmette, Winnetka, Glencoe, Highland Park, Highwood, Homewood, River Grove, Chicago (Wicker Park, Englewood, North Lawndale, Back of the Yards, Greek Town, Bridgeport, Canaryville, Rogers Park, Jefferson Park, West Town, South Loop), Blue Island, Alsip, Worth, Justice, Mundelein, New Lenox, Long Grove and Libertyville, Ill.
Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.
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