Nourse v. The City of Chicago
75 N.E.3d 397
| Ill. App. Ct. | 2017Background
- Rudy Nourse, an apprentice elevator serviceman, sued the City of Chicago and elevator inspector Fred Carter after being struck in an elevator pit during testing; his wife asserted a derivative loss-of-consortium claim.
- Plaintiffs alleged Carter (a City Bureau of Elevators inspector) ordered Rudy into the pit while testing the elevator pit switch, and Rudy’s supervisor unknowingly actuated the elevator, injuring Rudy.
- Carter died during the litigation; no estate was substituted or special administrator appointed within 90 days after his death was suggested of record.
- The City moved to dismiss under section 2-619.1 asserting statutory immunity under the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/2-105 and 10/2-207, which bar liability for negligent or inadequate inspections.
- The trial court dismissed the amended complaint with prejudice, relying principally on this court’s Hess decision; plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sections 2-105/2-207 bar this suit | Nourse: Carter’s order to enter the pit was unrelated to any inspection, so inspection immunities don’t apply | City: Carter was on the premises performing an elevator inspection/testing; the Act immunizes conduct during inspections | Held: Immunities apply; dismissal affirmed |
| Whether the immunities require an injury caused by an undetected hazardous condition on the property | Nourse: Immunity should apply only when injury stems from a property defect left undetected/unremedied by inspection | City: Statutory text covers injuries caused by making an inadequate inspection or failing to inspect generally; no such limitation | Held: Rejected plaintiff’s limitation; the plain language covers wrongful acts during inspections regardless of whether a property defect was the direct cause |
| Whether the City met burden to show the inspection purpose required by the statutes | Nourse: Complaint lacks allegations about the nature/purpose of the inspection | City: Complaint alleges Carter was a Bureau inspector testing the pit switch during modernization, implying safety/Code purpose | Held: The complaint’s allegations suffice to show Carter was inspecting/testing for safety/compliance; City met initial burden |
| Effect of Carter’s death and plaintiffs’ failure to substitute his estate | Nourse: (did not successfully substitute) | City: Plaintiff’s failure to substitute permits dismissal as to deceased defendant under section 2-1008(b) | Held: Independent alternative basis to affirm dismissal as to Carter due to failure to substitute an estate |
Key Cases Cited
- Hess v. Flores, 408 Ill. App. 3d 631 (affirming inspection immunities for various inspector acts during inspections)
- Ware v. City of Chicago, 375 Ill. App. 3d 574 (inspection immunity applies broadly to protect public entities)
- Pouk v. Village of Romeoville, 405 Ill. App. 3d 194 (courts must follow plain statutory language and not read in exceptions)
- Rascher v. City of Champaign, 262 Ill. App. 3d 592 (legislature need not enumerate every act within the inspection process to be covered by immunity)
- Epstein v. Chicago Board of Education, 178 Ill. 2d 370 (procedural burdens when asserting immunity defense under section 2-619)