A recent decision by the Appellate Court for the First District of Illinois held that the City of Chicago owed no duty to the plaintiffs to protect them from a porch collapse. Further, the court held that provisions of the Tort Immunity Act applied to bar plaintiffs’ claims.
In Ware v. The City of Chicago, the plaintiffs filed complaints against building owners, building managers, and the City of Chicago for injuries that resulted when a building’s third floor porch collapsed onto a second floor porch, which in turn collapsed onto the first floor porch of a privately owned three-flat building. At the time, the tenants of the third and second floor apartments were hosting a party, and guests were located on the attached porches.
The porch did not comply with Chicago Building Code requirements because, among other things, it did not have anchored support beams. The porch was inspected on two separate occasions after it was built; however neither inspector reported this nor any other violation. The inspectors admitted that they knew the Building Code required porches be supported by “lookouts” as part of its structure, that the absence of lookouts was a violation which they were required to note in their reports, and that a porch without lookouts was in danger of collapse.
The plaintiffs claimed that the City’s acts or omissions regarding inspection of the subject porch and failure to report violations and enforce the Building Code constituted willful and wanton misconduct, thereby violating the City’s duty to the plaintiffs. Subsequently, the City filed a motion to dismiss, arguing that it owed the plaintiffs no duty under the public duty rule, or, in the alternative, that it was immune from liability pursuant to the Tort Immunity Act.
The circuit court denied the City’s motion to dismiss, then granted the City’s motion requesting that it certify the following questions for interlocutory appeal: (1) whether the trial court erred in holding that plaintiffs stated a legally sufficient claim that the City breached a duty to them when its inspectors allegedly committed acts or omissions in the execution or enforcement of the City’s building code which amounted to willful and wanton conduct; (2) whether the trial court erred in holding that the plaintiffs’ claims were not barred under sections 2-103, 2-205, 2-105 and 2-207 of the Tort Immunity Act; and (3) whether the trial court erred in holding that a triable issue of fact exists as to whether the failure of the City’s inspectors to issue violation notices for the porch constituted willful and wanton conduct.
Following the supreme court’s supervisory order directing the appellate court to consider the certified questions, the appellate court answered the first two questions in the affirmative and reversed the circuit court. The court, with agreement from the parties, declined to address the third certified question.
In reversing the circuit court’s ruling, the appellate court relied on the supreme court’s decision in DeSmet v. County of Rock Island, 219 Ill. 2d 497 (2006), which addressed applicability of the common law public duty rule and section 2-202 of the Tort Immunity Act. The common law public duty rule generally establishes that a municipality or its employees are not liable for failure to supply general police or fire protection, and section 2-202 of the Tort Immunity Act exempts public employees from immunity for willful and wanton conduct.
The DeSmet court held that the implicated government entities and employees were immune from liability and did not engage in willful and wanton conduct by failing to respond to the scene of a reported accident. The Court determined that, in order to find an exception to the public duty rule for willful and wanton conduct, the complaint must establish, among other things, that the specific acts were willful in nature and the injury occurred while the plaintiff was under the direct and immediate control of municipal employees. DeSmet, 219 Ill. 2d at 519-20. Finally, the DeSmet court held that the legislature, and not the courts, have the exclusive authority to extend immunities, and where the language of the immunity is clear and unambiguous, the court may not read into it exceptions, limitations or conditions not expressly described by the plain language of the immunity. Id. at 510.
In applying the holding in DeSmet to the present case, the appellate court reasoned that the questions of duty and immunity are separate and distinct. One must first determine whether a duty exists before looking to the Tort Immunity Act to decide whether an entity is liable for breach of that duty. The Tort Immunity Act does not itself impose new duties on a public entity.
Here, the Court found that no common law duty was imposed on the City to protect the individual plaintiffs from the porch collapse. In order to address the remaining certified questions, the court assumed a duty existed and considered the plaintiffs’ willful and wanton claims stating that section 2-202 of the Tort Immunity Act does exempt public employees from immunity for willful and wanton conduct when a duty exists, however, no public employee was named as a defendant, and section 2-202 is silent with respect to public entities, such as the defendant City, and is inapplicable to the case at hand.
Assuming section 2-202 was applicable, under the facts of this case, the plaintiffs would be hard pressed to show that the conduct of the inspectors was willful and wanton as defined by the Tort Immunity Act, and, the plaintiffs could not establish that they were under the immediate and direct control of the City or a public employee at the time of the porch collapse as set forth in DeSmet. To suggest that the control element was satisfied when the City inspected the porch, knew it was not safe, and failed to act is too broad an interpretation on the control element established by DeSmet, and would potentially subject the City to liability for every porch within the city limits, thereby rendering the exception meaningless.
The court also held that the plaintiffs’ claims in the present case were barred by provisions of the Tort Immunity Act that specifically apply to the issues in this case and exempt a public entity and its employees from injury for making an inadequate or negligent inspection or for failing to enforce any law, such as the Building Code in this case. The court again applied DeSmet, and relied on the clear language of the immunity provisions at issue, deferring to legislative intent and the legislature’s authority to create, extend, or limit immunity. The appellate court found that since the specific applicable provisions of the Tort Immunity Act provided no explicit exception to immunity for willful and wanton conduct, then the legislature clearly intended to provide unqualified immunity under those provisions. Therefore, even if the City owed the plaintiffs a duty, their claims were barred by the Tort Immunity Act.
The effect of this decision provides the City and public employee unqualified immunity from liability for failing to enforce or execute a law, or for failing to properly inspect property other than the City’s. In other words, the City and its employees will not be held liable for injuries sustained on private property whether or not the property is in compliance with City law, thereby ensuring that public funds are not dissipated by private damages. The decision also reinforces the long standing position that the courts will not refine, limit, or expand any rights, duties, or immunities which are solely within the legislature’s authority when the language of a statute is unambiguous and the legislative intent is clear.
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Jennifer Mayhew, an associate in our Chicago office, concentrates her practice in litigation defense with an emphasis on auto, personal injury and insurance fraud investigation, as well as trademark litigation. Ms. Mayhew began her career as a law clerk focusing on trademark and copyright law for a boutique intellectual property firm. Prior to joining Querrey & Harrow, she also gained experience in insurance defense.
Ms. Mayhew has successfully tried more than 30 cases to verdict and has participated in more than 100 arbitrations in her legal career. Since joining Querrey & Harrow in 2004, she has tried 20 personal injury cases to full verdict. Each verdict was either a “not guilty” or substantially below the plaintiff’s demand.
