Illinois Appellate Court Case Recognizes Limitations to Tort Immunity Act in Construction Context

The Local Governmental and Governmental Employees Tort Immunity Act (the “Act”) limits the liability of public bodies for claims of negligence, including in cases based on the performance of discretionary functions. A recent Illinois Appellate Court decision applicable to public schools, Andrews v. Metropolitan Water Reclamation District of Greater Chicago, clarified two circumstances in which the Act will not protect a public body from a lawsuit based on the personal injury on public property. First, the court made clear that public bodies may be liable for injuries caused by willful and wanton misconduct relating to dangerous conditions or activities on public property even if there have been no prior similar injuries. Second, the court held that discretionary immunity cannot apply if the public body is not aware of the dangerous condition on its property that was alleged to have caused personal harm. The case is an important reminder to school business officials of the importance of carefully supervising potentially dangerous activities on public property, especially in the construction context. In cases where supervisory duties are contracted out to a construction manager or general contractor, it is imperative to include strong insurance and indemnification provisions inapplicable construction contracts. 

Andrews, a cement finisher employed by commercial construction and contracting company, was seriously injured when he fell off a ladder while working on a Water Reclamation District construction project. Andrews and a coworker had to step from one ladder to the other to reach the bottom of a 29-foot tank. On the day in question, there had been heavy rain and the site was muddy. Andrews slipped and fell into the tank, suffering what the court described as “career-ending” head injuries.

Andrews’ wife filed suit, claiming that the Water Reclamation District failed to comply with safety provisions in rules and regulations that governed work at the project. The Water Reclamation District argued that the case should be dismissed. It claimed that it could not have engaged in willful and wanton construction negligence because it was not aware of any prior injuries resulting from the allegedly unsafe ladder configuration, and so was protected from a lawsuit by the Act. The District also argued that it was entitled to discretionary immunity under the Act because the supervisor acted with discretionary authority and was making policy determinations with respect to the site’s safety.

The Appellate Court held that the lawsuit could go forward. First, a public body can engage in willful and wanton conduct even if it is not aware of prior injuries. Willful and wanton misconduct may be established by showing that activity was “obviously dangerous” or that there were particular dangers associated with the activity. Second, the discretionary authority provision of the Tort Immunity Act did not protect the District’s failure to address the dangerous ladder configuration, because the District supervisor was not aware of how the ladders were configured. The court reasoned that the supervisor could not have exercised discretion or determined policy about the configuration if he was not even aware of it. The court distinguished ignorance of a dangerous condition on public property from the knowledge of a condition and a decision to not address it, explaining that “[j]ust because a party has a right to exercise discretion does not mean that it did exercise discretion.”