Epstein v. Chicago Board of Education

Epstein v. Chicago Board of Education, No. 80965 (10/17/95)

NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.

Docket No. 80965--Agenda 8--January 1997.
LE ROY JAMES EPSTEIN, Appellee, v. THE CHICAGO BOARD OF
EDUCATION, Appellant.
Opinion filed October 17, 1997.

JUSTICE BILANDIC delivered the opinion of the court:
The Local Governmental and Governmental Employees Tort Immunity Act
(Tort Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, par. 1--101 et seq.) provides in
section 3--108(a) that "neither a local public entity nor a public employee is liable
for an injury caused by a failure to supervise an activity on or the use of any
public property." Ill. Rev. Stat. 1987, ch. 85, par. 3--108(a). This appeal addresses
the interplay between section 3--108(a) immunity and claims brought against local
public entities based upon violations of the Structural Work Act (Ill. Rev. Stat.
1987, ch. 48, par. 60 et seq.).

BACKGROUND
The plaintiff, Le Roy James Epstein, brought this cause of action against
the Chicago Board of Education (Board) and a contractor in the circuit court of
Cook County, seeking to recover damages pursuant to the Structural Work Act.
The contractor subsequently filed a third-party complaint against another
contractor and the project architect.
The plaintiff's third-amended complaint against the Board contained only
a Structural Work Act claim. The complaint alleged that the Board engaged a
number of contractors to perform renovation work at a Chicago public school. The
plaintiff was employed by a subcontractor to work on the project as a pipefitter.
On June 23, 1987, the plaintiff was standing on a ladder while using a hand-held
power tool to grind a groove into the wall. He fell from the ladder and was
injured.
The complaint charged that the Board was in charge of the plaintiff's
construction work at the school. The complaint further charged that the Board had
violated the Structural Work Act by allowing the plaintiff to use a ladder rather
than a scaffold, and by failing to perform the following acts: stop the plaintiff's
grinding work; inform the plaintiff's employer that a scaffold should be used;
enforce OSHA safety measures pertaining to workers at elevated levels; require
the grinding work to be performed from a scaffold; and furnish the plaintiff with
a scaffold or other suitable support.
The Board moved to dismiss the Structural Work Act complaint against it
pursuant to section 2--619 of the Code of Civil Procedure (735 ILCS 5/2--619
(West 1992)). The Board argued that the allegations in the plaintiff's complaint
amounted to charges that the Board had failed to supervise the construction work
on its premises, actions for which the Board is immune from liability under
section 3--108(a) of the Tort Immunity Act. In support of this proposition, the
Board relied on the appellate court decision of Eiben v. E.J. Cattani & Sons, Inc.,
217 Ill. App. 3d 609 (3d Dist. 1991).
The plaintiff responded with the countervailing appellate court opinion in
Eck v. McHenry County Public Building Comm'n, 237 Ill. App. 3d 755 (2d Dist.
1992). The Eck court held that section 3--108(a) of the Tort Immunity Act never
applies to bar a Structural Work Act claim. Eck, 237 Ill. App. 3d at 757-63. In the
alternative, the plaintiff contended that section 3--108(a) is not applicable to his
case because the Board's actions amounted to more than a failure to supervise.
The circuit court granted the Board's motion and dismissed the plaintiff's
complaint. Following Eiben, the circuit court held that the plain language of
section 3--108(a) provides the Board with immunity for its failure to supervise the
construction activities. The circuit court then issued a Supreme Court Rule 304(a)
finding (155 Ill. 2d R. 304(a)), following which the plaintiff appealed the circuit
court's order granting the Board's motion to dismiss.
The appellate court reversed the circuit court's dismissal and remanded for
further proceedings. Nos. 1--93--1174, 1--93--2071 cons. (unpublished order under
Supreme Court Rule 23). Following Eck's progeny (Serrano v. Chicago Board of
Education, 257 Ill. App. 3d 888 (1st Dist. 1994)), the appellate court held that
section 3--108(a) never provides immunity to local governmental entities for
claims asserted under the Structural Work Act. In addition, the appellate court
found the dismissal of the plaintiff's complaint to be improper for an alternative
reason. The appellate court held that the plaintiff's pleadings and evidence raised
a question of material fact as to whether the Board's conduct amounted to more
than mere supervision of the construction at the school.
We allowed the Board's petition for leave to appeal (155 Ill. 2d R. 315(a))
to resolve the conflict in the appellate court on whether section 3--108(a) of the
Tort Immunity Act ever provides immunity from Structural Work Act claims.

ANALYSIS
I
The Board contends that the appellate court erred in holding that section
3--108(a) of the Tort Immunity Act never provides local governmental units with
immunity from Structural Work Act claims.
The history of sovereign immunity in Illinois has been discussed frequently
in this court's opinions (see, e.g., Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 506-07, 510-11 (1990), overruled in part on other grounds, McCuen v.
Peoria Park District, 163 Ill. 2d 125, 129-30 (1994); Henderson v. Foster, 59 Ill. 2d 343, 349-50 (1974)), and we need not reiterate it here. Suffice it to say that the
Illinois Constitution of 1970 abolished sovereign immunity in Illinois, except as
may be provided by our General Assembly through statutory law. Ill. Const. 1970,
art. XIII, sec. 4. The legislature exercised this prerogative, with regard to local
governmental units, through its retention of the Tort Immunity Act. As a result,
the Tort Immunity Act governs whether and in what situations local governmental
units such as the Board are immune from civil liability.
We are here called upon to interpret section 3--108(a) of the Tort
Immunity Act. The principles to be applied in construing provisions of the Act are
well established:
"[O]ur primary goal is to ascertain and give effect to the
intention of the legislature. We seek the legislative intent primarily
from the language used in the Tort Immunity Act. We evaluate the
Act as a whole; we construe each provision in connection with
every other section. [Citation.] If we can ascertain the legislative
intent from the plain language of the Act itself, that intent must
prevail, and we will give it effect without resorting to other
interpretive aids. [Citation.] We must not depart from the plain
language of the Act by reading into it exceptions, limitations, or
conditions that conflict with the express legislative intent." Barnett
v. Zion Park District, 171 Ill. 2d 378, 388-89 (1996).
Section 3--108(a) states, in relevant part:
"Except as otherwise provided by this Act *** neither a
local public entity nor a public employee is liable for an injury
caused by a failure to supervise an activity on or the use of any
public property." Ill. Rev. Stat. 1987, ch. 85, par. 3--108(a).
The Board maintains that, under the plain meaning of this provision, local
governmental units are immune from liability for any injury caused by a failure
to supervise an activity on public property, which includes immunity for the
failure to supervise construction activities that form the basis of a Structural Work
Act claim. The plaintiff, on the other hand, asserts that the legislature did not
intend section 3--108(a) to include within its scope immunity from Structural
Work Act claims. The plaintiff further insists that the legislature did not intend
section 3--108(a) immunity to apply to construction-type activities, but rather
intended to limit its application to only recreational and scholastic activities. We
reject the plaintiff's arguments.
Section 3--108(a) by its plain terms immunizes a local governmental unit's
failure to supervise "an activity" on public property. This language clearly applies
to the failure to supervise any "activity" on public property, as it does not limit,
in any manner, the types of activities which are included. The plaintiff asks us to
read exceptions into this provision for both Structural Work Act claims and
construction activities. The plaintiff also asks us to limit section 3--108(a)'s
provisions to only recreational and scholastic activities. This court has in the past,
however, specifically admonished against reading exceptions into or engrafting
tacit limitations onto the Tort Immunity Act's language that conflict with the
express legislative intent. Barnett, 171 Ill. 2d at 388-89. To accept the plaintiff's
argument would require us to do just that. We therefore conclude that section 3--
108(a) allows for no such exceptions or limitations.
A further evaluation of section 3--108(a), along with the Tort Immunity
Act as a whole, also supports our rejection of the plaintiff's argument. Section 3--
108(a) grants immunity "[e]xcept as otherwise provided by this Act." Ill. Rev.
Stat. 1987, ch. 85, par. 3--108(a). Accordingly, section 3--108(a) by its own terms
provides that the only exceptions to its grant of immunity are those set forth
elsewhere in the Tort Immunity Act. Our review of the entire Tort Immunity Act
reveals that it provides exceptions for liability under the Workers' Compensation
Act and the Workers' Occupational Diseases Act (Ill. Rev. Stat. 1987, ch. 85,
pars. 2--101(c), (d)), among other things. The Tort Immunity Act, however,
nowhere makes an exception for liability under the Structural Work Act or for
construction activities. Nor does the Tort Immunity Act contain any provision
limiting section 3--108(a)'s application to only recreational or scholastic activities.
Consequently, none of the asserted exceptions or limitations exist.
The plaintiff nevertheless urges us to follow the reasoning employed by the
appellate court in Eck v. McHenry County Public Building Comm'n, 237 Ill. App.
3d 755 (1992). There, the appellate court held that section 3--108(a) of the Tort
Immunity Act never applies to bar a Structural Work Act claim. Eck, 237 Ill. App.
3d at 757-63. The appellate court in Eck provided a four-pronged rationale for its
decision. We review and reject that rationale below.
The Eck court first noted the lack of case law addressing the interplay
between section 3--108(a) and claims brought under the Structural Work Act.
Despite this lack of authority, the court found that a "substantial body of case law
exists *** which implicitly recognizes that local public entities can be held liable
for claims brought under the Structural Work Act arising out of construction-
related injuries." Eck, 237 Ill. App. 3d at 760-61 (citing five cases). We do not
agree with this statement. In reality, this statement and its accompanying citations
amount to a list of Structural Work Act cases against local governmental units in
which the affirmative defense of section 3--108(a) immunity was never raised,
decided or discussed. Under these circumstances, no precedential weight can be
given to these cases.
Secondly, the Eck court opined that, although section 3--108(a)'s plain
language arguably grants immunity for the failure to supervise construction
activities, the legislature had not intended for it to immunize local governmental
entities from Structural Work Act liability for construction-related injuries. The
court continued: "If we were to adopt such a broad reading of section 3--108(a),
the term `activity' would engender activities clearly beyond what have been
typically and historically regarded as governmental functions. In short, the
exception (i.e., immunity) would swallow the rule." Eck, 237 Ill. App. 3d at 761.
The Eck court erred when it departed from section 3--108(a)'s plain
language. As stated above, the best method for ascertaining legislative intent is to
analyze the plain language of the statute itself. Where the legislative intent can be
ascertained in this manner, that intent must prevail and be given effect without
resorting to other interpretive aids. Barnett, 171 Ill. 2d at 388-89. We note,
moreover, that the explanations offered by the Eck court for its departure from
section 3--108(a)'s plain language are not persuasive. The Eck court expressed its
concerns that, were it to interpret the term "activity" to include construction
activities, then (1) activities beyond those traditionally regarded as governmental
functions would be immunized, and (2) the exception of immunity would swallow
the rule of liability. The first concern must be rejected outright. The old common
law governmental/proprietary function distinction is not contained in the Tort
Immunity Act and, as a result, it no longer governs a local governmental unit's
immunity. In re Chicago Flood Litigation, 176 Ill. 2d 179, 191 (1997); Barnett,
171 Ill. 2d at 387-88. As to the second concern, we fail to see how the immunity
granted in section 3--108(a) could swallow the Tort Immunity Act's general rule
of liability. After all, section 3--108(a) does not broadly immunize all "activity";
rather, it immunizes the "failure to supervise an activity on or the use of any
public property." (Emphasis added.) Ill. Rev. Stat. 1987, ch. 85, par. 3--108(a).
Section 3--108(a) thus constitutes a carefully crafted and limited exception to
liability, which bars plaintiffs' claims against local governmental units for their
failure to supervise the activities of others. This expressed legislative intent must
prevail.
The Eck court also invoked the rule of statutory construction that the Tort
Immunity Act must be strictly construed against the local governmental entity
because it is in derogation of the common law. Eck, 237 Ill. App. 3d at 761. The
Eck court found that application of this rule required the conclusion that section
3--108(a) does not provide immunity in these circumstances. See Eck, 237 Ill.
App. 3d at 761. The Board devotes a substantial portion of its brief to the
argument that this rule cannot be justified historically and should be reexamined
and discarded. We need not reexamine this long-standing rule here. See Reynolds
v. City of Tuscola, 48 Ill. 2d 339, 342 (1971). We find that section 3--108(a)'s
meaning is plain and that the foregoing rule of statutory construction does nothing
to alter this meaning.
Lastly, the Eck court pointed out that, under the common law,
municipalities were afforded immunity for discretionary acts, but not for
ministerial tasks. Eck, 237 Ill. App. 3d at 761. The appellate court then reasoned
that the Tort Immunity Act must have implicitly retained this common law
discretionary/ministerial distinction because that distinction "continues to be
recognized" in the cases. Eck, 237 Ill. App. 3d at 762-63. The appellate court went
on to conclude that supervision of preplanned construction activities is a
ministerial task for which liability must be imposed, regardless of the immunity
granted in section 3--108(a). Eck, 237 Ill. App. 3d at 763.
We agree with the Board that this analysis by the Eck court is seriously
flawed. The Eck court's importation of the common law discretionary/ministerial
distinction into section 3--108(a) is not appropriate. As explained above, courts
must not read conditions into the Tort Immunity Act that conflict with its plain
language. Barnett, 171 Ill. 2d at 389. Such an approach wrongly results in court-
made limitations on what the legislature has prescribed in an area constitutionally
designated as the legislature's own. See Ill. Const. 1970, art. XIII, sec. 4.
Application of these principles is well illustrated in Barnett v. Zion Park District,
171 Ill. 2d 378 (1996), which also involved section 3--108 of the Tort Immunity
Act. The plaintiff in Barnett argued that section 3--108 was not applicable to
willful and wanton misconduct, either because section 3--108(a) somehow
incorporated another section's more limited immunity or because the Act as a
whole established only limited immunity. Barnett, 171 Ill. 2d at 389-91. This court
rejected Barnett's arguments, noting that "[t]he plain language of section 3--108
is unambiguous." Barnett, 171 Ill. 2d at 391. This observation is dispositive here
as well. There is nothing in section 3--108(a)'s language which even remotely
suggests that it does not apply to ministerial tasks. Again, we will not read such
a limitation into it.
Furthermore, the Eck court was simply wrong when it concluded that the
Tort Immunity Act must have implicitly retained the common law
discretionary/ministerial distinction because that distinction "continues to be
recognized" in the cases. Eck, 237 Ill. App. 3d at 762-63. In reality, the Tort
Immunity Act explicitly preserves discretionary immunity as it existed under the
common law in two particular provisions, sections 2--109 and 2--201 (745 ILCS
10/2--109, 2--201 (West 1996)). Snyder v. Curran Township, 167 Ill. 2d 466, 468,
473 (1995). These sections provide immunity to local governmental units and their
employees for the performance of discretionary functions. 745 ILCS 10/2--109,
2--201 (West 1996); Snyder, 167 Ill. 2d at 468, 478. This explicit retention of
discretionary immunity in two sections of the Act is what explains its continued
recognition in the case law.
The legislature, in the Tort Immunity Act, adopted the general principle
that local governmental units are liable in tort, "but limited this with an extensive
list of immunities based on specific government functions." Burdinie v. Village of
Glendale Heights, 139 Ill. 2d 501, 506 (1990), overruled in part on other grounds,
McCuen v. Peoria Park District, 163 Ill. 2d 125, 129-30 (1994). One such
immunity is for the performance of discretionary functions, granted in sections 2--
109 and 2--201. A second immunity is for the failure to supervise activities on
public property, granted in section 3--108(a). These immunities operate
independently of one another. The proper way to give meaning to both of these
statutory immunities is to recognize that the discretionary immunity provided for
in sections 2--109 and 2--201 does not in any way operate to remove or otherwise
limit the immunity granted in section 3--108(a) for the failure to supervise. More
particularly, there is no language in section 2--109 or 2--201 that imposes liability
for ministerial tasks, so those provisions cannot be used to override section 3--
108(a)'s grant of immunity for the failure to supervise.
We hereby overrule Eck and its progeny (Serrano, 257 Ill. App. 3d 888)
to the extent that those decisions are not consistent with the views expressed
above. We disagree with that portion of the appellate court's holding which, in
reliance on those decisions, states that section 3--108(a) never provides immunity
to local governmental entities for claims asserted under the Structural Work Act.

II
We have thus held that section 3--108(a) provides local public entities with
immunity from liability for any injury caused by a failure to supervise an activity
on public property, which includes immunity for the failure to supervise
construction activities that form the basis of a Structural Work Act claim. See
Eiben v. E.J. Cattani & Sons, Inc., 217 Ill. App. 3d 609, 612 (1991). This does
not mean that section 3--108(a) immunizes local public entities from all Structural
Work Act claims. There may well be situations where the "having charge of"
element for Structural Work Act liability (Ill. Rev. Stat. 1987, ch. 48, par. 69) is
met, but the "failure to supervise" element for section 3--108(a) immunity is not
met.
The plaintiff maintains that the supervisory element for section 3--108(a)
immunity is not met in this case because the Board's involvement in the
construction "went far beyond supervision." Resolution of this argument requires
us to determine whether the circuit court properly granted the Board's section 2--
619 motion to dismiss.
Section 2--619(a)(9) of the Code of Civil Procedure permits involuntary
dismissal where "the claim asserted *** is barred by other affirmative matter
avoiding the legal effect of or defeating the claim." 735 ILCS 5/2--619(a)(9)
(West 1992). Immunity from suit is an "affirmative matter" properly raised under
section 2--619(a)(9). See Bubb v. Springfield School District 186, 167 Ill. 2d 372,
378 (1995); Cardwell v. Rockford Memorial Hospital, 136 Ill. 2d 271 (1990).
The "affirmative matter" asserted by the defendant must be apparent on the
face of the complaint or supported by affidavits or certain other evidentiary
materials. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116
(1993). Once a defendant satisfies this initial burden of going forward on the
section 2--619(a)(9) motion to dismiss, the burden then shifts to the plaintiff, who
must establish that the affirmative defense asserted either is "unfounded or
requires the resolution of an essential element of material fact before it is proven."
Kedzie & 103rd Currency Exchange, Inc., 156 Ill. 2d at 116. The plaintiff may
establish this by presenting "affidavits or other proof." 735 ILCS 5/2--619(c)
(West 1992). "If, after considering the pleadings and affidavits, the trial judge
finds that the plaintiff has failed to carry the shifted burden of going forward, the
motion may be granted and the cause of action dismissed." Kedzie & 103rd
Currency Exchange, Inc., 156 Ill. 2d at 116.
A dismissal of this type resembles the grant of a summary judgment
motion. For that reason, the reviewing court conducts de novo review and
considers whether "the existence of a genuine issue of material fact should have
precluded the dismissal or, absent such an issue of fact, whether dismissal is
proper as a matter of law." Kedzie & 103rd Currency Exchange, Inc., 156 Ill. 2d
at 116-17.
In the present case, the Board moved to dismiss the plaintiff's complaint
under section 2--619(a)(9). The Board argued that it was immune from liability
under section 3--108(a) of the Tort Immunity Act, claiming that the allegations in
the plaintiff's complaint amounted to charges that the Board had failed to
supervise the construction work on its premises. The Board attached a project
manual to its motion in support. Consequently, the Board satisfied its initial
burden of going forward on the motion. The burden thus shifted to the plaintiff.
The plaintiff contended that section 3--108(a) never applies to Structural Work Act
claims. The plaintiff also contended that section 3--108(a) is not applicable to this
case because the Board's actions amounted to more than a failure to supervise.
The plaintiff attached certain discovery depositions in support of his position.
After considering all the materials before it, the circuit court rejected the
plaintiff's position and granted the Board's motion to dismiss.
The appellate court reversed the circuit court's dismissal of the plaintiff's
complaint and remanded for further proceedings on two alternative grounds. The
appellate court first held that, as a matter of law, section 3--108(a) never provides
immunity to local governmental entities for claims asserted under the Structural
Work Act. We reverse this holding in part I of our analysis. In the alternative, the
appellate court held that the plaintiff's pleadings and evidence raised a question
of material fact as to whether the Board's conduct amounted to more than mere
supervision of the construction work at the school. The appellate court therefore
ruled that the existence of this genuine issue of material fact should have
precluded the circuit court's dismissal.
The Board does not challenge the appellate court's alternative holding
anywhere in its petition for leave to appeal, appellant's brief or reply brief.
Moreover, during oral argument, the Board's counsel stated that she would not be
addressing the issue of whether there was more than supervision here by the
Board. Counsel asserted that "this is a question of fact to be determined on its
merits." Through these actions, the Board has waived any challenge that it may
have presented to the appellate court's alternative holding. See 155 Ill. 2d R.
341(e)(7) (points not argued in appellant's brief are waived and shall not be raised
in the reply brief, during oral argument or in the petition for rehearing); City of
Naperville v. Watson, 175 Ill. 2d 399, 406 (1997) (points not raised in petition for
leave to appeal may be deemed waived); Allegro Services, Ltd. v. Metropolitan
Pier & Exposition Authority, 172 Ill. 2d 243, 269 (1996) (inadequate argument can
also result in waiver). We therefore affirm the appellate court's holding reversing
the dismissal of the plaintiff's complaint because a question of material fact
remains as to whether the Board's conduct amounted to more than supervision.

CONCLUSION
For the reasons stated, the judgment of the appellate court, which reversed
the order of the circuit court and remanded for further proceedings, is affirmed.

Appellate court judgment affirmed.