Andrews v. Metropolitan Water Reclamation District of Greater Chicago

2019 IL 124283

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 124283)

BECKY ANDREWS et al., Appellees, v. THE METROPOLITAN WATER

RECLAMATION DISTRICT OF GREATER CHICAGO, Appellant.

Opinion filed December 19, 2019.

CHIEF JUSTICE BURKE delivered the judgment of the court, with opinion.

Justices Thomas, Kilbride, Theis, and Neville concurred in the judgment and

opinion.

Justice Karmeier dissented, with opinion, joined by Justice Garman.

OPINION

¶1 At issue in this appeal is whether a water reclamation district is 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 the employee of a contractor.

The circuit court of Cook County held defendant was entitled to immunity and

entered summary judgment for defendant. The appellate court reversed the circuit

court’s judgment. 2018 IL App (1st) 170336. We now affirm the judgment of the

appellate court, reverse the judgment of the circuit court, and remand for further

proceedings.

¶2 BACKGROUND

¶3 The Metropolitan Water Reclamation District of Greater Chicago (District)

owns and operates the Calumet water reclamation plant located at 400 East 130th

Street in Chicago. On July 10, 2008, the District entered into a contract with a joint

venture, F.H. Paschen, S.N. Nielsen/IHC Construction (Joint Venture), for the

“Primary Settling Tanks and Grit Removal Facilities” project to be carried out at

the Calumet plant. The Joint Venture was the general contractor for the project.

¶4 According to the contract, it was the Joint Venture’s responsibility to determine

the procedures and methods for the work and furnish all temporary structures and

safety equipment. The Joint Venture was also responsible for the safety of all

personnel on the work site, including its own employees and District personnel.

The contract required the Joint Venture to submit plans for the work to the District’s

engineer. The engineer then had the right to disapprove and reject any procedures

and methods he deemed to be unsafe. The contract provided, however, that the

engineer’s acceptance of the plans did not relieve the Joint Venture of its

responsibility for safety, maintenance, and repairs on the project.

¶5 Jeffrey Andrews was an employee of F.H. Paschen, S.N. Nielsen & Associates,

LLC, a member of the Joint Venture. On April 21, 2011, Andrews was assigned to

work at the plant’s primary settling tank number 2402. According to the complaint

in this case, prior to that date it had rained heavily, causing the area around the tank

to be extremely muddy and the tank to collect three feet of standing water. Andrews

and a coworker, Luis Cuadrado, were assigned the job of applying grout to a gate

at the bottom of a 29-foot effluent chamber.

¶6 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

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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 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, Andrews fell approximately 30 feet and landed on

Cuadrado, who had already descended to the bottom of the chamber. Both men

were severely injured. Andrews suffered broken bones and severe, career-ending

head injuries.

¶7 On January 3, 2012, Andrews’s wife, Becky Andrews, filed suit against the

District, both individually and as plenary guardian of the person and estate of her

husband. Plaintiff filed an amended complaint on January 3, 2013. The amended

complaint contained four counts alleging construction negligence, loss of

consortium for construction negligence, willful and wanton construction

negligence, and loss of consortium for willful and wanton construction negligence.

Defendant filed a combined motion to dismiss citing both sections 2-615 and 2-619

of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 2012)). Defendant

asserted it was immune from liability for the failure to supervise an activity on

public property, pursuant to section 3-108 of the Tort Immunity Act. 745 ILCS

10/3-108 (West 2012). 1 This defense applied only to the negligence counts, since

section 3-108 expressly excepts willful and wanton conduct from immunity. See

id. Defendant also argued that the amended complaint failed to state a cause of

action for willful and wanton conduct.

¶8 On May 3, 2013, the trial court dismissed the two negligence counts with

prejudice on the grounds that defendant was entitled to immunity under section 3-

108. The court dismissed the willful and wanton counts without prejudice, allowing

plaintiff to replead those counts. On October 10, 2013, plaintiff filed her second

amended complaint, adding the Joint Venture as a defendant. 2 The second

amended complaint alleged two counts of willful and wanton construction

1

As a “sanitary district,” the District is a local governmental body covered by the Act. See 70

ILCS 2605/1 et seq. (West 2012); 745 ILCS 10/1-206 (West 2012).

2

The counts against the Joint Venture were later dismissed with prejudice based on the exclusive

remedy provision of the Workers’ Compensation Act. 820 ILCS 305/5(a) (West 2012).

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negligence against the District, one count on behalf of Jeffrey Andrews and one

count for Becky Andrews’s loss of consortium. Both counts alleged that defendant

“30. *** failed in one or more of the following respects with an utter

indifference and a conscious disregard for plaintiff’s safety:

a. allowed workers to work upon effluent chambers without the use of

access platforms, when it had actual knowledge that employees were

previously not using them;

b. failed to supervise their employees on site when it knew of previous

occasions when crews were working without fall protection;

c. willfully failed to implement its fall protection plan by not providing

supervision by a competent person;

d. willfully failed to provide an offset platform or landing between the

portable ladder and the 43’ fiberglass extension ladder, when it had actual

knowledge that offset platforms were previously not being used;

e. failed to implement a mandatory fall protection plan when it had

actual knowledge of prior occasion [sic] when employees were not utilizing

fall protection;

f. failed to implement a safety plan when it had actual knowledge that

employees were transitioning from makeshift ladders to extension ladders

without access platforms;

g. willfully failed to provide an adequate or suitable scaffold or ladder

for Jeffrey Andrews to carry out his work when it knew Jeffrey Andrews

was transitioning without an access platform;

h. required the F.H. Paschen, S.N. Nielsen & Associates, LLC crew

members to work around the subject settling tank when it knew it was

extremely muddy and knew that the inside of the chamber contained

excessive water;

i. knowingly allowed Jeffrey Andrews to work in a confined work site

in sloppy, rainy, muddy, and wet weather conditions;

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j. willfully failed to provide a wide enough opening so that the slope of

the ladder could be adequately extended, allowing Jeffrey Andrews to work

safely when it knew the opening was too small to allow for a proper slope

of the ladder;

k. willfully failed to provide fall restraints to Jeffrey Andrews when it

knew Jeffrey Andrews did not have fall restraints during the transitioning

stage;

l. [the District’s] on-site engineer willfully failed to provide the

necessary requirements for water site control, as per the contract;

m. willfully failed to provide safe, suitable site-control to Jeffrey

Andrews, as per the contract; and

n. knowingly failed to properly monitor the work activities of the F.H.

Paschen, S.N. Nielsen & Associates, LLC crew members.”

¶9 On March 4, 2014, defendant filed a motion to dismiss the second amended

complaint pursuant to section 2-615 of the Code of Civil Procedure. 735 ILCS 5/2-

615 (West 2012). Defendant argued that the complaint failed to state a cause of

action for willful and wanton conduct because it did not allege that defendant had

knowledge of any prior accidents or injuries. On April 23, 2014, the trial court

granted in part and denied in part the motion to dismiss. The court found that

plaintiff had failed to plead adequate causes of action for the willful and wanton

failure to supervise. Accordingly, the court struck with prejudice the allegations of

willful and wanton supervision set forth in paragraphs 30(b) and 30(c) of the two

willful and wanton counts corresponding to Jeffrey and Becky Andrews in the

complaint.

¶ 10 On October 22, 2014, defendant filed a motion to dismiss the second amended

complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure. Id. § 2-

619(a)(9). Defendant argued that it owed no duty to plaintiff based on the general

rule that one who employs an independent contractor is not liable for the acts or

omissions of the independent contractor. Moreover, defendant argued that it did not

retain sufficient control over the contractor’s work to establish liability pursuant to

the “retained control” exception set forth in section 414 of the Restatement

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(Second) of Torts. See Restatement (Second) of Torts § 414 (1965). The trial court

denied the motion, finding an issue of fact precluded dismissal of the case.

¶ 11 Subsequently, on April 11, 2016, defendant filed a motion for summary

judgment arguing that defendant was immune from liability under sections 2-109

and 2-201 of the Tort Immunity Act (745 ILCS 10/2-109, 2-201 (West 2012)).

These sections immunize a local governmental entity from liability for injuries

arising out of its employee’s acts or omissions while determining policy and

exercising discretion. Id. However, defendant did not support its immunity defense

with evidence that its employees made discretionary or policy decisions with

respect to the two-ladder configuration that resulted in Andrews’s injuries. In fact,

defendant referenced the deposition testimony of seven witnesses, all of whom

testified that no District employees weighed in on worksite safety decisions.

¶ 12 For example, Greg Florek, a senior civil engineer for the District and the

resident engineer assigned to the project, testified that the District had nothing to

do with how the contractor performed its work or with safety aspects of the work.

Florek admitted that he had no education or training in construction safety. He

testified that he walked the job site once or twice a day in order to check the

progress and confirm that the work was being done in compliance with the contract.

Florek testified that he did not know when the two ladders were placed in the

effluent chamber at the site of the accident, nor did he recall ever seeing that type

of ladder configuration prior to the accident. He also stated that he never inspected

the ladders involved in the occurrence or assessed whether they complied with any

codes, rules, or regulations.

¶ 13 Defendant also cited the deposition testimony of John Lemon, defendant’s

principal civil engineer, and Douglas Pelletier, an employee of the general

contractor and the senior manager on the project. Lemon testified that defendant

did not supervise the means and methods of the work performed by contractors and

did not have a designated person responsible for project safety. He testified that the

general contractor was solely responsible for safety. Pelletier testified that the

contractor was responsible for stopping any unsafe work at the job site. He also

testified that defendant did not enforce safety or tell the workers how to do their

work.

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¶ 14 Despite the lack of evidence showing that any safety decisions were made by

its employees, defendant argued it was immune from liability based solely on its

contract with the Joint Venture. The contract language specified that defendant’s

engineer “may disapprove and reject” any “procedures, methods, structures or

equipment *** which seem[ed] to him to be unsafe for the work hereunder.”

Defendant argued that this language reserved its right to make decisions concerning

safety. It argued that the reservation of the right to exercise discretion, standing

alone, is sufficient to invoke discretionary immunity under the Tort Immunity Act,

even if that right is never exercised. In addition, defendant argued, its “decision[s]

on what contractor to hire, the contractor’s scope of work, the terms and conditions

by which the work was to be performed, and decisions regarding delegation as to

means and method and safety are all discretionary acts.”

¶ 15 The trial court agreed and entered summary judgment in defendant’s favor. The

court ruled that “the [District] engineer had discretionary authority to make policy

determinations under the terms of the contract between [the District] and

subcontractor Paschen to enforce project safety.” Based on the contract language,

the court concluded that defendant was entitled to absolute immunity under sections

2-109 and 2-201. Plaintiff’s motion to reconsider was denied by the trial court.

¶ 16 Plaintiff appealed two of the trial court’s rulings: (1) the order dismissing the

claims for willful and wanton supervision set forth in paragraphs 30(b) and 30(c)

of two counts in the second amended complaint and (2) the order granting summary

judgment for defendant on the remaining claims based on tort immunity. The

appellate court reversed the trial court’s judgment on both issues and remanded for

further proceedings. 2018 IL App (1st) 170336, ¶¶ 32-33. On the first issue, the

court held that the allegations of willful and wanton supervision were sufficient to

defeat a motion to dismiss. Id. ¶ 17. On the second issue, the court held that

defendant failed to prove its entitlement to immunity under section 2-201 and, thus,

summary judgment was improper on the remaining willful and wanton claims. 3 Id.

¶¶ 18-28. The court held, “[i]n this case, even if Florek was in a position where he

3

We note that the appellate court incorrectly stated that summary judgment was entered as to

“plaintiff’s claims based on simple negligence.” 2018 IL App (1st) 170336, ¶¶ 8, 18. In fact, the

trial court had previously dismissed the negligence claims, and plaintiff did not appeal that dismissal

order. Thus, the only claims at issue on summary judgment were those alleging willful and wanton

conduct. We conclude that the appellate court’s mischaracterization of the claims did not affect its

resolution of the tort immunity issue.

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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 [sic] from which Andrews’s injury resulted.” Id. ¶ 21. “To the contrary,

Florek testified and defendant has remained steadfast throughout the case that

Florek did not know about the ladder configuration.” Id. The court concluded,

“[j]ust because a party has a right to exercise discretion does not mean that it did

exercise discretion.” Id. ¶ 28.

¶ 17 Defendant filed a petition for leave to appeal in this court, which we granted.

Ill. S. Ct. R. 315(a) (eff. July 1, 2018). We also allowed the Illinois Association of

Defense Trial Counsel to file an amicus curiae brief in support of defendant’s

position and the Illinois Trial Lawyers’ Association to file an amicus curiae brief

in support of plaintiffs’ position. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

¶ 18 ANALYSIS

¶ 19 On appeal to this court, defendant asks that we reverse the appellate court’s

judgment and affirm the trial court’s entry of summary judgment in its favor.

Defendant challenges only the immunity portion of the appellate court’s judgment.

Thus, the only issue in this appeal is whether defendant established its immunity

defense pursuant to sections 2-109 and 2-201 of the Tort Immunity Act.

¶ 20 A party is entitled to summary judgment where “the pleadings, depositions, and

admissions on file, together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as

a matter of law.” 735 ILCS 5/2-1005(c) (West 2012). Because summary judgment

is a drastic means of disposing of litigation, the trial court must construe the

evidence in the record strictly against the movant. Adams v. Northern Illinois Gas

Co., 211 Ill. 2d 32, 43 (2004). Furthermore, the court should grant summary

judgment only if the movant’s right to a judgment is clear and free from doubt. Id.

On review of the trial court’s order granting summary judgment, this court must

determine whether the existence of a genuine issue of material fact should have

precluded the dismissal of the case or, absent such an issue of fact, whether

summary judgment was proper as a matter of law. Kedzie & 103rd Currency

Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17 (1993).

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¶ 21 We review de novo the trial court’s order granting summary judgment. Barnett

v. Zion Park District, 171 Ill. 2d 378, 385 (1996). This case involves statutory

interpretation, an issue of law also subject to de novo review. Brunton v. Kruger,

2015 IL 117663, ¶ 24.

¶ 22 Tort Immunity Act

¶ 23 In 1959, this court abolished sovereign immunity from tort claims for local

governmental entities. Molitor v. Kaneland Community Unit District No. 302, 18

Ill. 2d 11, 24-25 (1959). In response to that decision, in 1965, the General Assembly

enacted the Tort Immunity Act. Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 43

(1998); see also Ill. Const. 1970, art. XIII, § 4 (recognizing the abolition of

sovereign immunity, “[e]xcept as the General Assembly may provide by law”). The

Tort Immunity Act governs whether and under what circumstances local

governmental entities are immune from liability in civil actions. Harinek v. 161

North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 340 (1998). Unless a specific

immunity provision applies, a public entity is liable in tort to the same extent as a

private party. Barnett, 171 Ill. 2d at 386. Since the Tort Immunity Act is in

derogation of the common law, it must be construed strictly against the public entity

seeking immunity. Snyder v. Curran Township, 167 Ill. 2d 466, 477 (1995). In

addition, the public entity or employee asserting an immunity defense bears the

burden of proving it is entitled to that immunity. Van Meter v. Darien Park District,

207 Ill. 2d 359, 370 (2003).

¶ 24 In construing the provisions in the Tort Immunity Act, we bear in mind that the

primary goal of statutory construction is to discern and effectuate the intent of the

legislature. Home Star Bank & Financial Services v. Emergency Care & Health

Organization, Ltd., 2014 IL 115526, ¶ 24. The best indicator of legislative intent is

the language of the statute, given its plain and ordinary meaning. Ultsch v. Illinois

Municipal Retirement Fund, 226 Ill. 2d 169, 181 (2007). A reviewing court may

not read into the statute any exceptions, conditions, or limitations that conflict with

the clear legislative intent. Metropolitan Life Insurance Co. v. Hamer, 2013 IL

114234, ¶ 18. However, in interpreting the statutory language, we may consider the

purpose and necessity for the law, the evils sought to be remedied, and the goals to

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be achieved. Crossroads Ford Truck Sales, Inc. v. Sterling Truck Corp., 2011 IL

111611, ¶ 45.

¶ 25 Sections 2-109 and 2-201 of the Tort Immunity Act provide as follows:

“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

2012).

“Except as otherwise provided by Statute, 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.” Id. § 2-201.

¶ 26 Read together, these sections shield a municipality from liability for the

discretionary acts or omissions of its employees. Smith v. Waukegan Park District,

231 Ill. 2d 111, 118 (2008). Discretionary immunity for public officials is

“premised upon the idea that such officials should be allowed to exercise their

judgment in rendering decisions without fear that a good-faith mistake might

subject them to liability.” Harrison v. Hardin County Community Unit School

District No. 1, 197 Ill. 2d 466, 472 (2001) (citing White v. Village of Homewood,

285 Ill. App. 3d 496, 502 (1996)). Section 2-201 provides absolute immunity for

both negligence and willful and wanton conduct. In re Chicago Flood Litigation,

176 Ill. 2d 179, 195-96 (1997). This court has recognized that the broad immunity

in section 2-201 “offers the most significant protection afforded to public

employees under the [Tort Immunity] Act.” Arteman v. Clinton Community Unit

School District No. 15, 198 Ill. 2d 475, 484 (2002) (citing David C. Baum, Tort

Liability of Local Governments and Their Employees: An Introduction to the

Illinois Immunity Act, 1966 U. Ill. L.F. 981, 994).

¶ 27 By its plain language, section 2-201 immunizes a public employee who serves

in “a position involving the determination of policy or the exercise of discretion”

from liability for injuries allegedly caused by the employee’s “act or omission in

determining policy when acting in the exercise of such discretion.” 745 ILCS 10/2-

201 (West 2012). As this court has noted, the statutory language “is concerned with

both the type of position held by the employee and the type of action performed or

omitted by the employee.” (Emphases in original.) Harinek, 181 Ill. 2d at 341.

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Thus, the test for determining whether a municipality is entitled to discretionary

immunity is twofold. Id. The municipal defendant must establish that (1) the

employee held either a position involving the determination of policy or a position

involving the exercise of discretion and (2) the employee 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. Id.

¶ 28 Policy determinations are defined as decisions requiring the public entity or

employee to balance competing interests and make a judgment call as to what

solutions will best serve each of those interests. Harrison, 197 Ill. 2d at 472 (citing

West v. Kirkham, 147 Ill. 2d 1, 11 (1992)). Such interests may include safety,

convenience, and cost. West, 147 Ill. 2d at 11. Exercises of discretion are those that

are “unique to a particular public office.” Snyder, 167 Ill. 2d at 474. An employee’s

act or omission will be deemed discretionary where the employee has exercised

“personal deliberation and judgment in deciding whether to perform a particular

act, or how and in what manner that act should be performed.’ ” Monson v. City of

Danville, 2018 IL 122486, ¶ 30 (quoting Wrobel v. City of Chicago, 318 Ill. App.

3d 390, 394-95 (2000)). Determining whether an act or omission is discretionary

should be made on a case-by-case basis depending on the particular facts and

circumstances. Snyder, 167 Ill. 2d at 474.

¶ 29 The only disputed issue in this appeal is whether Florek exercised discretion

and made a policy determination in connection with the alleged acts or omissions

that resulted in plaintiff’s injuries. If the answer is “no,” then the District has not

established its affirmative defense of immunity under section 2-201 of the Tort

Immunity Act. See Van Meter, 207 Ill. 2d at 379 (to invoke immunity under section

2-201, a municipal defendant is required to establish both elements with respect to

the alleged act or omission).

¶ 30 This court’s recent decision in Monson controls our analysis in this case. The

plaintiff in that case sued the City of Danville for her injuries after tripping and

falling on an uneven seam in a sidewalk. Monson, 2018 IL 122486, ¶ 1. The City

moved for summary judgment asserting discretionary immunity under sections 2-

201 and 2-109 of the Tort Immunity Act. Id. In support of this defense, the City

provided evidence that its employees had completed a project to inspect and repair

the city’s downtown sidewalks approximately one year prior to plaintiff’s accident.

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Id. ¶ 34. It was uncontested that the sidewalk slabs involved in plaintiff’s accident

were within the subject area and were not repaired in the course of the project.

Based on this evidence, the City argued that its employees effectively exercised

discretion and made a policy determination not to repair the section of sidewalk

that allegedly caused plaintiff’s injuries. Id. We rejected this argument. Id. ¶ 32.

¶ 31 We held that a municipality seeking immunity under section 2-201 for the

failure to repair a defective condition “must present sufficient evidence that it made

a conscious decision not to perform the repair. The failure to do so is fatal to the

claim.” (Emphasis added.) Id. ¶ 33. We held that, in the absence of a conscious

decision on the part of the municipality, “nearly every failure to maintain public

property could be described as an exercise of discretion,” which constitutes an

“ ‘ “impermissibly expansive definition of discretionary immunity.” ’ ” Id. ¶ 35

(quoting Corning v. East Oakland Township, 283 Ill. App. 3d 765, 768 (1996),

quoting Snyder, 167 Ill. 2d at 472).

¶ 32 To illustrate the standard of proof required by the statute, we favorably cited

two appellate court decisions—Gutstein v. City of Evanston, 402 Ill. App. 3d 610

(2010), and Corning, 283 Ill. App. 3d 765. Monson, 2018 IL 122486, ¶ 33. In

Gutstein, the city claimed it was immune from liability for the plaintiff’s injuries

resulting from tripping and falling in an unimproved alley. Gutstein, 402 Ill. App.

3d at 611-12. The appellate court rejected the city’s immunity defense, finding there

was “nothing in the record to show that any work was done in the alley, certainly

not how it was done.” Id. at 626. In Corning, the appellate court held the defendants

were not immune from liability for their failure to replace a missing stop sign where

there was no evidence they were aware the sign was missing or made a conscious

decision to remove it. Corning, 283 Ill. App. 3d at 768.

¶ 33 Similar to Gutstein and Corning, the record in Monson contained no

documentation of the City’s decision not to repair the specific sidewalk slab at

issue. Monson, 2018 IL 122486, ¶ 35. We stated:

“While the City presented evidence that the [accident] site was included in an

overall evaluation of its sidewalks, there are no facts regarding the City’s

assessment of the actual site. We do not know which factors were taken into

account by the City in deciding not to repair the sidewalk. More importantly,

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we do not know whether anyone even took note of a sidewalk deviation at that

location, or whether it was simply overlooked.” Id. ¶ 38.

For these reasons, we held that the City failed to establish evidence that its handling

of the sidewalk deviation constituted an exercise of discretion. Id.

¶ 34 Thus, according to our precedent, a municipal defendant asserting immunity

under section 2-201 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 prior to the plaintiff being

injured, he or she could not possibly have exercised discretion with respect to that

condition. Notably, other jurisdictions that have reached the issue agree that a

public entity claiming immunity for its employee’s exercise of discretion must

present evidence of a conscious decision on the part of the employee. See, e.g.,

Goss v. City of Globe, 883 P.2d 466, 468-69 (Ariz. Ct. App. 1994); Caldwell v.

Montoya, 897 P.2d 1320, 1326, 1327-28 (Cal. 1995) (en banc); Greathouse v.

Armstrong, 616 N.E.2d 364, 367 (Ind. 1993); Schmitz v. City of Dubuque, 682

N.W.2d 70, 74 (Iowa 2004); Kolitch v. Lindedahl, 497 A.2d 183, 197 (N.J. 1985);

Little v. Wimmer, 739 P.2d 564, 569 (Or. 1987) (en banc); Foster v. South Carolina

Department of Highways & Public Transportation, 413 S.E.2d 31, 35 (S.C. 1992);

Little v. Utah State Division of Family Services, 667 P.2d 49, 51 (Utah 1983); King

v. City of Seattle, 525 P.2d 228, 233 (Wash. 1974) (en banc); Oyler v. State, 618

P.2d 1042, 1048 & n.12 (Wyo. 1980); see also 63 C.J.S. Municipal Corporations

§ 886 (Sept. 2019 Update) (“Before immunity attaches, there must be some form

of considered decision, that is, one that consciously balances risks and

advantages.”); 57 Am. Jur. 2d Municipal, County, School, and State Tort Liability

§ 66 (Nov. 2019 Update) (“The government must prove that the challenged act or

omission was a policy decision made by consciously balancing risks and

benefits.”).

¶ 35 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.” 2018 IL App (1st) 170336,

¶ 24. There is no evidence that Florek, defendant’s resident engineer, exercised

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judgment or skill in making decisions about ladders or access platforms. Nor is

there evidence that he balanced competing interests and made a determination as to

what solution would best serve each of those interests. Florek 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.

¶ 36 Nevertheless, defendant argues that Florek’s unawareness of the ladder

formation does not defeat its discretionary immunity defense. According to

defendant, 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. Florek subsequently opted not to make any

decisions concerning worker safety. Defendant contends that Florek’s election not

to weigh in on safety issues demonstrates a conscious exercise of discretion under

section 2-201. We disagree.

¶ 37 Defendant appears to be characterizing its employee’s choice not to make any

safety decisions at all as an “omission.” If so, this is a clear misreading of the

statute. The plain statutory language states that the act or omission giving rise to

the injuries must constitute both an exercise of discretion and a determination of

policy. 745 ILCS 10/2-201 (West 2012); see Harinek, 181 Ill. 2d at 341. This

language requires that the entity or person claiming immunity must have made an

actual decision with respect to the acts or omissions giving rise to the injuries.

Consequently, an “omission” must be construed as an affirmative decision to take

no action given the circumstances. No such decision was made in this case. The

most that can be said is that a decision was made by default, which is insufficient

to invoke discretionary immunity. See, e.g., Corning, 283 Ill. App. 3d at 768

(holding defendants could not claim discretionary immunity for the removal of a

stop sign where it was removed without their knowledge or authority); Goss, 883

P.2d at 468-69 (holding defendant could not claim discretionary immunity where

the city made no actual decision not to spend money on guardrails or sidewalks).

Accordingly, as in Monson, we hold that defendant has failed to sustain its burden

of proving that its employee exercised discretion and made a policy determination

pursuant to section 2-201.

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¶ 38 Our determination that defendant has not established its entitlement to

immunity is consistent with the purpose and goals of the statute. The general

purpose of the Tort Immunity Act is to “protect local public entities and public

employees from liability arising from the operation of government.” 745 ILCS

10/1-101.1(a) (West 2012). This court has held that the “ ‘operation of government’

necessarily encompasses the policy decisions made by a municipality; that is, those

decisions which require the municipality to balance competing interests and to

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

West, 147 Ill. 2d at 11.

¶ 39 The discretionary immunity now codified in section 2-201 was originally

termed “quasi-judicial immunity.” Kennell v. Clayton Township, 239 Ill. App. 3d

634, 642 (1992) (citing Kelly v. Ogilvie, 64 Ill. App. 2d 144, 147 (1965), aff’d 35

Ill. 2d 297 (1966)). The principle underlying this immunity is that public decision

makers, like judges, should be free to make decisions and exercise their judgment

based upon their best perception of public needs without fear of being subjected to

a lawsuit. Id.; White, 285 Ill. App. 3d at 502. “The courts reason that any other rule

would be a great hardship on public officials and would discourage citizens from

seeking public positions.” Midamerica Trust Co. v. Moffatt, 158 Ill. App. 3d 372,

376 (1987) (citing McCormick v. Burt, 95 Ill. 263, 266 (1880)).

¶ 40 As noted in the most recent edition of Prosser and Keaton on Torts,

discretionary governmental immunity is also premised on the principles that “the

judiciary should not invade the province of the executive branch of government by

supervising its decisions through tort law, and that if liability were imposed for

discretionary decisions, effective executive action would be chilled.” Prosser and

Keaton on the Law of Torts § 131, at 1046 (W. Page Keeton et al. eds., 5th ed.

1984). These principles “counsel use of the immunity only when there is no

‘predictable standard’ for decision making, where there is room for difference in

official judgment, and where in fact some official judgment has been brought to

bear on the governmental action that has caused the plaintiff harm.” (Emphasis

added.) Id. at 1046-47. It follows that the policy reasons for granting immunity are

furthered only when the government entity or its employee has engaged in actual

decision making.

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¶ 41 Defendant has failed to offer a policy rationale that justifies immunity for the

making of no decision. Nor can we think of one. In the absence of a judgment call

and a 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 nondecision would reward public officials and employees who

ignore problems instead of addressing them. It also would broaden the scope of

discretionary immunity well beyond what the legislature intended. As we have

explained, defendant’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. See 745 ILCS 10/2-

201 (West 2012). A contract 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.

¶ 42 Defendant argues that In re Chicago Flood, 176 Ill. 2d 179, compels a different

result. In re Chicago Flood involved a class action lawsuit filed against the City of

Chicago for property damage and economic loss suffered as a result of flooding in

the tunnel beneath the central business district of the city. Id. at 183. Approximately

one year prior to the flood, the City contracted with Great Lakes Dredge and Dock

Company (Great Lakes) for the removal and replacement of wooden pilings at five

bridges spanning the Chicago River. During this process, the tunnel wall was

breached. Id. at 184-85. Seven months later, the tunnel breach opened, causing

extensive flooding in buildings connected to the tunnel. Id. at 185. The class

plaintiffs’ numerous claims against the City included the failure to supervise Great

Lakes’ work, the failure to repair the tunnel after the breach, and the failure to warn

of the dangerous condition. Id. at 185-86.

¶ 43 With respect to the failure to supervise claim, this court held that the City was

immune from liability for negligence pursuant to section 3-108(a) of the Tort

Immunity Act (745 ILCS 10/3-108(a) (West 1994)). In re Chicago Flood, 176 Ill.

2d at 193. In addition, we held that the City’s allegedly negligent and willful and

wanton supervision of Great Lakes was immunized by sections 2-109 and 2-201 of

the Tort Immunity Act. Id. at 195-96. The class plaintiffs argued that discretionary

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immunity was inapplicable because, “once the City approved the pile driving plan,

its actions ceased to be discretionary and became ministerial.” Id. at 194-95. We

rejected this argument, reasoning that,

“[i]n the present case, the contract between the City and Great Lakes provided

that ‘the contractor shall not drive the pilings at any other location than that

specified by the City,’ and authorized the City to change its specifications.

Thus, the City retained the discretion to locate the pilings in any location it

thought best. [Citation.] This was a matter within the City’s discretion for which

there is immunity under the [Tort Immunity] Act.” Id. at 195.

¶ 44 Relying on this language, defendant argues that a contract provision that retains

a government entity’s discretion to make decisions is sufficient to establish section

2-201 immunity without a further showing that discretion was consciously

exercised. We disagree.

¶ 45 In re Chicago Flood was decided prior to Harinek, 181 Ill. 2d at 341, where

this court addressed for the first time whether section 2-201 requires that a public

entity’s act or omission be both an exercise of discretion and a determination of

policy. We held:

“According to the statute, an employee may be granted immunity if he holds

either a position involving the determination of policy or a position involving

the exercise of discretion. The statute is equally clear, however, that immunity

will not attach unless the plaintiff’s injury results from an act performed or

omitted by the employee in determining policy and in exercising discretion.”

(Emphases in original.) Id.

¶ 46 Twenty years later, in Monson, we articulated the standard of proof required to

satisfy the exercise of discretion element. Monson, 2018 IL 122486, ¶ 33. This

court expressly held that a local public entity claiming immunity under section 2-

201 must present evidence that it made a “conscious decision” with respect to the

acts or omissions alleged in the complaint. Id. We further held that “[t]he failure to

do so is fatal to the claim.” Id. To the extent that In re Chicago Flood can be read

as suggesting that a contract provision alone satisfies the exercise of discretion

element in section 2-201, we now clarify that our most recent elucidation of the

standard of proof is controlling. Furthermore, Cabrera v. ESI Consultants, Ltd.,

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2015 IL App (1st) 140933, and any other decisions applying a lesser standard of

proof are hereby overruled. See id. ¶ 125 (holding that a construction contract

granting the City of Chicago the right to reject methods used by contractors

qualified the city for discretionary immunity). In this case, it was defendant’s

burden to support its immunity defense with evidence of conscious decision

making, and it has failed to sustain that burden. See, e.g., Monson, 2018 IL 122486,

¶¶ 38-39; Gutstein, 402 Ill. App. 3d at 626.

¶ 47 Defendant’s final argument is based on public policy. Defendant contends that

our reading of the statute imposes an undue hardship on local governments because

it conflicts with a defendant’s ability to assert a defense under section 414 of the

Restatement (Second) of Torts. Restatement (Second) of Torts § 414 (1965). It is

important to note that defendant is not arguing it owed no duty in this case. The

existence of a duty is not at issue in this appeal. Rather, defendant is urging this

court to interpret section 2-201 of the Tort Immunity Act in a manner compatible

with a section 414 defense.

¶ 48 Section 414 of the Restatement is a recognized exception to the common-law

rule that one who employs an independent contractor is not liable for harm caused

by the acts or omissions of the independent contractor. Carney v. Union Pacific

R.R. Co., 2016 IL 118984, ¶¶ 31, 33-35. This provision states:

“One who entrusts work to an independent contractor, but who retains the

control of any part of the work, is subject to liability for physical harm to others

for whose safety the employer owes a duty to exercise reasonable care, which

is caused by his failure to exercise his control with reasonable care.”

Restatement (Second) of Torts § 414 (1965).

Thus, the existence of a duty under section 414, and liability for negligence

generally, turns on the extent to which the hiring entity controls the work of the

independent contractor. See Carney, 2016 IL 118984, ¶ 41.

¶ 49 Defendant argues that construing section 2-201 of the Tort Immunity Act to

require evidence that a public entity involved itself in the contractor’s work would

deprive public entities of a defense under section 414 of the Restatement. Defendant

reasons that public entities would be required to “go above and beyond what their

contracts require” to control the work delegated to the contractor in order to sustain

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a tort immunity defense under section 2-201. This could impact a defendant’s

ability to claim it owed no duty to an injured plaintiff. Defendant argues, therefore,

that section 2-201 should be read to allow a public entity to satisfy the statute

through evidence that it entered into a contract reserving its right to exercise

discretion. We reject defendant’s argument.

¶ 50 A defense predicated on section 414 of the Restatement (Second) of Torts is not

in conflict with tort immunity. Whether a local governmental entity owed a duty of

care and whether it is entitled to immunity are discrete issues, which must be

analyzed separately. Coleman v. East Joliet Fire Protection District, 2016 IL

117952, ¶ 46; Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484,

490 (2001); Barnett, 171 Ill. 2d at 388. This court has noted that “ ‘[t]he distinction

between an immunity and a duty is crucial, because only if a duty is found is the

issue of whether an immunity or defense is available to the governmental entity

considered.’ ” Coleman, 2016 IL 117952, ¶ 46 (quoting Zimmerman, 183 Ill. 2d at

46). Moreover, section 2-201 of the Tort Immunity Act does not distinguish

between a public entity who enters into a contract for construction work and one

who does not. See 745 ILCS 10/2-201 (West 2012). All local governmental entities

are held to the same standard. Accordingly, defendant’s argument is not a valid

reason to ignore the express, unambiguous language in the statute.

¶ 51 CONCLUSION

¶ 52 Construing the Tort Immunity Act strictly against defendant, as we must

(Monson, 2018 IL 122486, ¶ 15), we find that defendant has not met its burden of

establishing discretionary immunity under sections 2-109 and 2-201. We hold,

therefore, that defendant is not entitled to summary judgment as a matter of law.

¶ 53 For the foregoing reasons, we affirm the judgment of the appellate court,

reverse the judgment of the circuit court, and remand for further proceedings.

¶ 54 Appellate court judgment affirmed.

¶ 55 Circuit court judgment reversed.

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¶ 56 Cause remanded.

¶ 57 JUSTICE KARMEIER, dissenting:

¶ 58 This case differs from Monson v. City of Danville, 2018 IL 122486—which the

majority finds controlling, and the genesis of a “conscious decision” rule—in that

Monson concerned the governmental entity’s endeavor to inspect its own sidewalks

and effect its own repairs. This case, in contrast, speaks to a governmental entity’s

employment of an intermediary, a construction contractor, to carry out the work

with the contractor’s own workers under the direct supervision of the contractor’s

personnel, but with the governmental entity’s retained contractual authority to

“disapprove or reject” procedures it deemed “inadequate or unsafe.” 4 Retained

contractual authority, where a contractor was employed to do the work, is what

In re Chicago Flood Litigation, 176 Ill. 2d 179 (1997), and Cabrera v. ESI

Consultants, Ltd., 2015 IL App (1st) 140933, specifically addressed and what the

cases cited by the majority do not.

¶ 59 Whether one agrees or disagrees with the holding of Chicago Flood—that the

City was entitled to absolute immunity under sections 2-109 and 2-201 because it

retained contractual oversight and discretion with respect to the matter resulting in

injury—that decision is the law until it is overruled, and in doing that, “[w]e may

not depart from stare decisis without special justification.” Iseberg v. Gross, 227

4

The contract provided:

“The Contractor shall determine the procedure and methods and also design and furnish all

temporary structures, sheeting, bracing, tools, machinery, implements and other equipment and

plant to be employed in performing the work hereunder, and shall promptly submit layouts and

schedules of his proposed methods of conducting the work to the Engineer for his approval.

The use of inadequate or unsafe procedures, methods, structures or equipment will not be

permitted, and the Engineer may disapprove and reject any of same which seem to him to be

unsafe for the work hereunder, or for other work being carried on the vicinity or for work which

has been completed or for the public or for any workmen, engineers and inspectors employed

thereon, or that interferes with the work of the Water Reclamation District or other contractors,

or that will not provide for the completion of the work within the specified time, or that is not

in accordance with all the requirements herein specified.”

No one disputes the terms of the contract, which was made a part of the record in this case.

Although there are numerous other contractual provisions specifying that the contractor was solely

responsible for safety, the foregoing paragraph unequivocally grants the defendant’s on-site

engineers discretion and policy oversight with respect to safety.

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Ill. 2d 78, 101 (2007); see also People v. Hernandez, 231 Ill. 2d 134, 144-45 (2008).

In this context, I think a recent observation of Justice Thomas does apply:

“If the majority believes this court’s cases are in error, it needs to overrule

them. If it believes that the court made a mistake, then it should own the mistake

rather than claiming that our cases say something other than what they clearly

say. However, this would require a discussion of why departure from

stare decisis is appropriate, which may be difficult. Stare decisis considerations

are at their apex in matters of statutory construction.” (Emphasis added.)

People v. Dupree, 2018 IL 122307, ¶ 69 (Thomas, J., specially concurring,

joined by Kilbride, J.)

The majority simply suggests that our jurisprudence has evolved past Chicago

Flood—a suggestion voiced in no case previous to this in the course of the last 22

years—and that the majority is merely “clarifying” the law with “our most recent

elucidation of the standard of proof.” Supra ¶ 46. Yet in truth, this court is

effectively overruling Chicago Flood.

¶ 60 The court specifically overrules Cabrera, lumping it in with “any other

decisions applying a lesser standard of proof” than that applied by the majority.

Supra ¶ 46. However, Cabrera merely applies the clear holding of Chicago Flood,

to even more compelling circumstances, 5 and the Cabrera court does not espouse

a significantly different standard of proof than that the majority applies (see

5

The contract language in Cabrera is very similar to the contract provisions in this case.

However, the City’s engineer (Shum) in Cabrera, while emphasizing that the contractor was solely

responsible for safety, also freely admitted—unlike the engineers here—that he had the authority to

shut down the construction project for safety violations if he saw fit. He had the discretion; he could

determine policy on site:

“Shum testified that safety was not the City’s responsibility, and the City did not require a

site-specific safety plan. Shum did not have any role on this project with respect to jobsite

safety; safety was the contractor’s responsibility. The contractor was responsible for

determining what the workers needed for safety. He testified that if he observed anything unsafe

he would inform the foreman. He testified that if he observed grease and slippery surfaces at

the preconstruction meeting, he would tell the contractor to clean it up because it was the

contractor’s responsibility to keep the site clean. ***

Shum testified that he had the authority to stop work if he observed something hazardous

or dangerous at a jobsite. He had the ability to shut down the whole project.” Cabrera, 2015 IL

App (1st) 140933, ¶¶ 46-47.

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Cabrera, 2015 IL App (1st) 140933, ¶ 122), other than omission of the newly

recognized “conscious decision” doctrine.

¶ 61 So, where does the “conscious decision” rule go from here? How will it be

applied to cases where public entities employ contractors?

¶ 62 My first concern is that the rule announced today may, in the future, result in

the unintended consequence of less safety supervision on construction sites, not

more. Governmental entities may well attempt to do in contracting what this

defendant’s engineers did while testifying: 6 lay responsibility for overseeing safety

solely at the door of the contractors. In Carney v. Union Pacific R.R. Co., 2016 IL

118984, ¶¶ 31-39, we addressed the nuanced consequences of control—or

divestiture thereof—in work performed by a contractor on behalf of someone else.

This court noted: “Under the common law, one who employs an independent

contractor is not liable for harm caused by the latter’s acts or omissions.” Id. ¶ 31.

However, “ ‘[t]he test of the relationship is the right to control. It is not the fact of

actual interference with the control, but the right to interfere, that makes the

difference between an independent contractor and a servant or agent.’ ” Id. (quoting

Hartley v. Red Ball Transit Co., 344 Ill. 534, 539 (1931)). Thus, applying that test,

if the hiring entity retains any right of advisory supervision over safety concerns,

the entity could be liable—in this instance—for willful and wanton conduct. The

solution for one hiring a contractor is to vest the contractor with sole responsibility

for safety. That would result in fewer eyes focused on safety, not more.

¶ 63 Moreover, on a pragmatic level, the “conscious decision” rule today runs

counter to our analysis of negligence in selecting a contractor in Carney. If the

“ ‘character of the work to be done *** can be properly done only by persons

6

The engineers in this case chose to interpret—or at least claimed to have interpreted—the

contract in a way that could negate duty by ceding all control over matters of safety to the contractor.

(The majority takes pains to emphasize: “It is important to note that defendant is not arguing it owed

no duty in this case. The existence of a duty is not at issue in this appeal.” (supra ¶ 47)) Admittedly,

the defendant in this case tried to have it both ways: defendant claimed discretionary immunity, via

retained contractual control, under sections 2-109 and 2-201, and it attempted to negate any duty to

the plaintiffs through deposition testimony of defendant’s engineer-supervisors and representatives

of the contractor, to the effect that the contractor was solely responsible for safety on the

construction project. Patrick Healy, the contractor’s foreman, admitted in his deposition testimony

that Florek could, through the contractor’s superintendent, stop work if he observed an unsafe

practice. Irrespective of how the engineers chose to interpret the contract, a conscious decision was

made that impacted supervision of safety on the project.

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possessing special skill and training,’ ” a municipality will likely be less able to

exercise the conscious decisions in day-to-day operations necessary to claim

discretionary immunity. Id. ¶ 66 (quoting Restatement (Second) of Torts § 411 cmt.

c, at 378 (1965)). Municipalities employ contractors for a multitude of tasks, for

many of which the public entity may possess little or no expertise. This is a case in

point: the engineers who had the authority to exercise the retained contractual right

of supervision over safety acknowledged in their depositions that they had no

training whatsoever in matters relating to safety. To impose the duty of rendering

decisions in all of a contractor’s day-to-day minutiae to avoid liability not only

contradicts the utility of subcontracting but, in highly specialized tasks, may be

practically inconceivable. 7

¶ 64 Given these considerations, in the future, decisions might well be made to

sacrifice control over safety measures in order to minimize potential liability.

¶ 65 My second concern is that this “conscious decision” rule will come to require

the articulation of “magic words” evincing a conscious decision, a requirement that

ignores what may be reasonably inferred from conduct and circumstance. The

engineers in this case, via their interpretation of the contract, effectively ceded

oversight over matters of safety to the contractor. They did not say that was their

conscious decision, but that was clearly their determination of policy and

responsibility on the job site. Thus, even if the contractual right to control is not

enough alone, as it was in Chicago Flood, to accord the entity immunity, the

engineers’ interpretation and implementation of supervisory obligations on the job

site would nonetheless suffice to accord the entity immunity.

¶ 66 But what if the facts are as plaintiff alleges in her complaint? What if the

engineers in fact witnessed all the safety concerns and silently chose to do nothing,

having it in their power to act? Is that not a conscious decision that would entitle

the defendant to immunity? Ahrens, the director of public works in Monson, could

not recall inspecting or measuring the particular slab of concrete where plaintiff

fell. No conscious decision. The majority here opines: “In this case, defendant has

7

Although not at issue here, I would note that the amount of care we require to avoid liability

in selecting a contractor, when the work “can be properly done only by persons possessing special

skill and training,” evinces a “conscious decision” that the majority would require for discretionary

immunity.

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presented no evidence documenting a decision by its employees with respect to the

condition involved in the accident.” 8 Supra ¶ 35. Well, what supervisory

deficiencies has this plaintiff alleged of defendant?

¶ 67 Plaintiff alleged that defendant,

“with an utter indifference and a conscious disregard for plaintiff’s safety:

a. allowed workers to work upon effluent chambers without the use of

access platforms, when it had actual knowledge that employees were

previously not using them;

b. failed to supervise their employees on site when it knew of previous

occasions when crews were working without fall protection;

c. wilfully failed to implement its fall protection plan by not providing

supervision by a competent person;

d. wilfully failed to provide an offset platform or landing between the

portable ladder and the 43’ fiberglass extension ladder, when it had actual

knowledge that offset platforms were previously not being used;

e. failed to implement a mandatory fall protection plan when it had

actual knowledge of prior occasion [sic] when employees were not utilizing

fall protection;

f. failed to implement a safety plan when it had actual knowledge that

employees were transitioning from makeshift ladders to extension ladders

without access platforms;

8

Does an entity retaining supervisory control over a contractor even have to be aware of the

condition involved in the accident? In an appropriate case, where discretion and policy decisions

are made with respect to the creation and maintenance of a system of supervision and oversight,

does the failure to find and address the condition in question necessarily preclude immunity? If it

does, then the entity’s required degree of involvement would seem to be commensurate with that of

the contractor itself. That would certainly entail a dramatic shift in the allocation of human resources

in governmental construction projects.

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g. wilfully failed to provide an adequate or suitable scaffold or ladder

for Jeffrey Andrews to carry out his work when it knew Jeffrey Andrews

was transitioning without an access platform;

h. required the F.H. Paschen, S.N. Nielsen & Associates, LLC crew

members to work around the subject settling tank when it knew it was

extremely muddy and knew that the inside of the chamber contained

excessive water;

i. knowingly allowed Jeffrey Andrews to work in a confined work site

in sloppy, rainy, muddy, and wet weather conditions;

j. wilfully failed to provide a wide enough opening so that the slope of

the ladder could be adequately extended, allowing Jeffrey Andrews to work

safely when it knew the opening was too small to allow for a proper slope

of the ladder;

k. wilfully failed to provide fall restraints to Jeffrey Andrews when it

knew Jeffrey Andrews did not have fall restraints during the transitioning

stage;

l. [the District’s] on-site engineer wilfully failed to provide the necessary

requirements for water site control, as per the contract;

m. wilfully failed to provide safe, suitable site-control to Jeffrey

Andrews, as per the contract; and

n. knowingly failed to properly monitor the work activities of the F.H.

Paschen, S.N. Nielsen & Associates, LLC crew members.” (Emphases

added.)

¶ 68 So, according to plaintiff, defendant, with “conscious disregard” for Andrews’s

safety, knowing all those things, failed to act. Is that something other than a

“conscious decision?” If plaintiff proves the very things she professes provable in

her complaint, has plaintiff not made the case that defendant, through its engineers

on site, made a conscious decision not to act—the final requisite for immunity

under the new analytical standard? Or are we to assume the engineers were devoid

of any mental processes whatsoever?

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¶ 69 “Section 2-1005 of the [Code] provides for summary judgment when the

pleadings, depositions, and admissions on file, together with any affidavits, show

that there is no genuine issue as to any material fact ***.” (Emphases added.)

Forsythe v. Clark USA, Inc., 224 Ill. 2d 274, 280 (2007); 735 ILCS 5/2-1005 (West

2012). Plaintiff has, presumably in good faith, claimed in her complaint that the

defendant’s engineers knew of the dangerous conditions and did nothing. Taking

those allegations as true, the defendant would be entitled to immunity under

sections 2-109 and 2-201.

¶ 70 In light of the foregoing concerns, I cannot subscribe to the majority decision.

¶ 71 JUSTICE GARMAN joins in this dissent.

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