                                     2017 IL App (1st) 160664
                                       Filed March 24, 2017

                                                                              SIXTH DIVISION

No. 1-16-0664

RUDY NOURSE and LAUREN NOURSE,                                )               Appeal from the
                                                              )               Circuit Court of
       Plaintiffs-Appellants,                                 )               Cook County.
                                                              )
v.                                                            )
                                                              )               No. 15 L 2620
THE CITY OF CHICAGO,                                          )
                                                              )
       Defendant-Appellee                                     )               Honorable
                                                              )               Eileen Mary Brewer,
(Fred Carter, Defendant).                                     )               Judge Presiding.

       JUSTICE ROCHFORD delivered the judgment of the court, with opinion
       Presiding Justice Hoffman and Justice Cunningham concurred in
       the judgment and opinion.

                                             OPINION

¶1     Plaintiff-appellant, Rudy Nourse, an apprentice elevator serviceman, and his spouse,

plaintiff-appellant, Lauren Nourse, brought this personal injury action against defendant­

appellee, City of Chicago (City), and defendant, Fred Carter, an elevator inspector employed by

the City’s Bureau of Elevators (Bureau). Plaintiffs alleged that Rudy was injured as a result of

Mr. Carter’s wrongful acts, or his failures to act, in his role as an inspector for the City. The suit

was dismissed, with prejudice, on the ground that it was barred by sections 2-105 and 2-207 of

the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS

10/2-105, 2-207 (West 2014)), which provide certain protections to public entities from liability

relating to inspections. For the following reasons, we affirm.

¶2                                     I. BACKGROUND

¶3     On March 13, 2015, Rudy and Lauren Nourse filed a complaint against the City and Mr.

Carter. According to the complaint, on March 20, 2014, Rudy and his supervisor, while

employed by Suburban Elevator Company, were working as “elevator servicemen” at the River
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North Apartments (the building) in Chicago. Mr. Carter, in his capacity as an inspector with the

City’s Bureau of Elevators (Bureau), was “performing an inspection of the elevators” at the

building. “[A]t all times,” Mr. Carter was allegedly “carrying out his responsibilities for [the

City’s] Bureau of Elevators.” Mr. Carter “ordered” Rudy to enter the pit of an elevator shaft

“prior to inspection and testing of said elevator’s pit switch and without first advising [his

supervisor] who was going to be operating the elevator during the course of said testing.” Rudy

entered the elevator pit, and his supervisor caused the elevator to descend and strike Rudy,

causing injuries. The three count complaint included willful and wanton and negligence claims

by Rudy against defendants, and a derivative claim against defendants by Lauren for loss of

consortium.

¶4      After the suit was commenced, Mr. Carter died on May 27, 2015. The City spread his

death of record on August 25, 2015. The record contains no indication that an estate was opened,

and plaintiffs did not move to substitute the estate or appoint a special administrator pursuant to

section 2-1008(b) of the Code of Civil Procedure (Code). 735 ILCS 5/2-1008(b) (West 2014).

¶5     On July 26, 2015, the City brought a combined motion to dismiss under section 2-619.1

of the Code. 735 ILCS 5/2-619.1 (West 2014). The City sought dismissal of the entire complaint,

in part, pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2014)), arguing that the

action was barred by sections 2-105 and 2-207 of the Act. In the briefs filed with respect to this

motion, the City maintained that the statutory immunity provisions applied because Rudy

claimed in response to the motion to dismiss that he was injured as a result of the improperly

performed inspection of an elevator, and that his injuries were the “ ‘result of a [City] inspector’s

specific conduct during the course of the inspection.’ ”




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¶6     On September 29, 2015, the circuit court granted the City’s motion to dismiss, without

prejudice, and granted plaintiffs leave to file an amended complaint.

¶7     Plaintiffs filed an amended complaint containing the same counts on October 28, 2015. In

the amended complaint, plaintiffs contended that on the day of the incident he and his supervisor

were at the building “performing elevator modernization” and Mr. Carter, an “elevator inspector”

working for the City, was there “in the course and scope of his employment” with the City.

“[P]rior to *** [Mr.] Carter performing any inspection of the elevators *** he ordered [Rudy] to

climb into *** an elevator pit.” Plaintiffs asserted that this order “was unrelated to and not part

of any inspection [Mr. Carter] intended to perform subsequent to giving the order to [Rudy].” In

accord with Mr. Carter’s order, Rudy climbed down into the elevator pit and his supervisor,

“without knowledge that [Rudy] was in the elevator shaft, powered up an elevator installed in the

same shaft, at which time said elevator descended into the shaft striking [Rudy].” Rudy was

allegedly injured as a result.

¶8      Rudy alleged that Mr. Carter’s conduct was willful and wanton in that he had

“[d]eliberately and with knowledge disregarded and countermanded” the instruction of Rudy’s

supervisor that Rudy not go into the elevator pit during testing of the elevator’s pit switch;

“ordered [Rudy] to enter and remain in the elevator pit during testing of the elevator’s pit

switch”; did not inform Rudy that the elevator could be activated by another worker; and “failed

to ensure [the] pit was safe and clear during testing of the elevator’s pit switch.”

¶9     In his negligence count, Rudy alleged that Mr. Carter had carelessly and negligently

failed to tell Rudy’s supervisor that Mr. Carter had told Rudy to get into the elevator pit and

remain there “during the testing of the elevator’s pit switch”; “ensure [the elevator] pit was safe

and clear during testing of the elevator’s pit switch when [Mr. Carter] knew that the elevator


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would be activated during the course of testing of the pit switch”; or inform Rudy that the

elevator would be activated during testing. It was further alleged that Mr. Carter “disregarded

and countermanded previous instructions *** from [Rudy’s] supervisor to stay clear of the

elevator pit during testing of the pit switch” and “was otherwise careless and negligent in the

performance of elevator inspection duties and responsibilities.”

¶ 10   On November 16, 2015, the City filed a combined section 2-619.1 motion to dismiss the

amended complaint. Pursuant to section 2-619(a)(9) of the Code, the City again sought dismissal

of the suit, in its entirety, as being barred by sections 2-105 and 2-207 of the Act, because

plaintiffs were claiming Rudy was injured during the course of an inspection. In response,

plaintiffs argued the City’s motion to dismiss was misguided because the amended complaint

included allegations that “[Mr.] Carter had not yet begun his inspection” when he ordered Rudy

to enter the pit. Plaintiffs also disputed the City’s contention that sections 2-105 and 2-207

applied to their suit, because Rudy had not been injured by any defect in the elevator but rather

by the negligent or willful and wanton acts of Mr. Carter “that coincidentally occurred when he

went to the [building].” The City replied by noting that the amended complaint alleged that Rudy

was injured during a test of the elevator pit switch and that Mr. Carter was at the building in the

course of his employment as an elevator inspector. The City asserted that these allegations

demonstrated that the acts of Mr. Carter at issue were completed during and for the purpose of

conducting an elevator inspection.

¶ 11   On February 10, 2016, the circuit court, after a hearing, dismissed the amended

complaint, in its entirety and with prejudice, after finding that the action was barred by sections

2-105 and 2-207 of the Act. In so finding, the circuit court primarily relied on this court’s

decision in Hess v. Flores, 408 Ill. App. 3d 631 (2011). Plaintiffs have timely appealed.


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¶ 12                                  II. ANALYSIS

¶ 13   On appeal, plaintiffs contend that their amended complaint was improperly dismissed

with prejudice. While plaintiffs raise a number of issues on appeal, we find a discussion of the

applicability of sections 2-105 and 2-207 of the Act to be dispositive.

¶ 14   A section 2-619 motion admits the legal sufficiency of the complaint, but raises defects,

defenses, or other affirmative matters appearing on the face of the complaint or established by

external submissions, which defeat the action. 735 ILCS 5/2-619 (West 2014)); Jenkins v.

Concorde Acceptance Corp., 345 Ill. App. 3d 669, 674 (2003)). When deciding a section 2-619

motion, a court accepts all well-pled facts in the complaint as true and will grant the motion

when it appears no set of facts can be proved which would allow the plaintiff to recover. Wilson

v. Quinn, 2013 IL App (5th) 120337, ¶ 11. Thus, a court must construe the pleadings and

supporting documents in favor of the nonmoving party. Bjork v. O’Meara, 2013 IL 114044, ¶ 21

(citing Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 352 (2008)). However, the court

will not admit as true unsupported conclusions of law or conclusory allegations of fact. Aliano v.

Ferriss, 2013 IL App (1st) 120242, ¶ 20.

¶ 15   Our review of an order granting a section 2-619 motion is de novo. Wilson, 2013 IL App

(5th) 120337, ¶ 11. The circuit court’s judgment may, therefore, be affirmed for any reason, and

upon any ground warranted. Riley Acquisitions, Inc. v. Drexler, 408 Ill. App. 3d 397, 404 (2011).

In addition, issues involving the interpretation of the Act are also reviewed de novo. Village of

Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 489 (2001) (citing Henrich v.

Libertyville High School, 186 Ill. 2d 381, 386 (1998)).


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¶ 16    “A municipality’s assertion that it is immune from suit is an appropriate subject of a

motion under section 2-619.” American Family Mutual Insurance Co. v. Tyler, 2016 IL App

(1st) 153502, ¶ 9 (citing Smith v. Waukegan Park District, 231 Ill. 2d 111, 115 (2008), and

Brooks v. Daley, 2015 IL App (1st) 140392, ¶ 14). To obtain a dismissal on the grounds of

immunity, the affirmative defense “must be apparent on the face of the complaint or supported

by affidavits or certain other evidentiary materials.” Epstein v. Chicago Board of Education, 178

Ill. 2d 370, 383 (1997) (citing Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d

112, 116 (1993)). Once the defendant meets this initial burden, “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.’ ” Id. (quoting Kedzie,

156 Ill. 2d at 116). The plaintiff may meet this shifted burden by presenting “ ‘affidavits or other

proof.’ ” Id. (quoting 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.’ ” Id. (quoting Kedzie,

156 Ill. 2d at 116).

¶ 17    The Act serves “ ‘to protect local public entities and public employees from liability

resulting from the operation of government.’ ” Hess, 408 Ill. App. 3d at 646 (quoting Ware v.

City of Chicago, 375 Ill. App. 3d 574, 577-78 (2007)). As with any statutory construction issue,

“[w]hen interpreting a provision of the [Act], ‘our primary goal is to ascertain and give effect to

the intention of the legislature.’ ” Id. (quoting Barnett v. Zion Park District, 171 Ill. 2d 378, 388

(1996)). “When an immunity provision ‘is clear and unambiguous, we are not at liberty to depart

from the plain language and meaning of the statute by reading into it exceptions, limitations or




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conditions that the legislature did not express.’ ” Id. (quoting DeSmet v. County of Rock Island,

219 Ill. 2d 497, 510 (2006)).



¶ 18	   Section 2-105 of the Act provides:

        “A local public entity is not liable for injury caused by its failure to make an inspection,

        or by reason of making an inadequate or negligent inspection, of any property, other than

        its own, to determine whether the property complies with or violates any enactment or

        contains or constitutes a hazard to health or safety.” 745 ILCS 10/2-105 (West 2014).

¶ 19	   Section 2-207 contains the same protections for employees of public entities, stating:

        “A public employee is not liable for an injury caused by his failure to make an inspection,

        or by reason of making an inadequate or negligent inspection, of any property, other than

        that of the local public entity employing him, for the purpose of determining whether the

        property complies with or violates any enactment or contains or constitutes a hazard to

        health or safety.” 745 ILCS 10/2-207 (West 2014).

This court has held that these provisions provide blanket immunity, for public entities and their

employees, against both negligent and wilful and wanton conduct. Hess, 408 Ill. App. 3d at 646

(“where a statutory immunity provision unambiguously does not contain an exception for willful

and wanton conduct, the courts should not read such an exception into the provision”); Ware,

375 Ill. App. 3d at 583.

¶ 20    Here the City moved to dismiss the suit, in part, on the ground that it was immune from

liability under sections 2-105 and 2-207 of the Act. Based on the allegations in the amended

complaint, the City argued that plaintiffs were seeking to hold the City liable for Mr. Carter’s

conduct during his inspection of the elevators at the building. The City did not submit


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evidentiary proof in support of its motion below. 1 Therefore, we must determine whether, based

on the face of the amended complaint, the action was properly dismissed based on the asserted

affirmative defense of immunity under the Act.

¶ 21    The amended complaint alleged that Mr. Carter was present at the building and on duty

as an inspector with the Bureau when Rudy was injured. Mr. Carter was present at the building

to inspect and test the elevator’s pit switch. Plaintiffs maintain that Mr. Carter, in his role as an

inspector for the City, ordered Rudy to enter the elevator pit and that Rudy was injured when his

supervisor lowered the elevator into the pit during the testing. Sections 2-105 and 2-207 would

thus appear to clearly protect the City from suit for Mr. Carter’s conduct during the inspection of

the elevators.

¶ 22    Nevertheless, plaintiffs argued below that the amended complaint alleged that Mr.

Carter’s order, which directed Rudy to enter the pit, was made prior to and was unrelated to the

inspection of the elevators and, therefore, the immunity provisions have no relevance to their

action. Plaintiffs have not made this argument on appeal and, therefore the argument is forfeited.

Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 55. Furthermore, the

allegations of the amended complaint supporting such a contention are conclusory and

unsupported by specific facts, and plaintiffs did not thereafter provide any evidentiary support

for these allegations when responding to the motion to dismiss. A court considering a section 2­

619 motion does not accept conclusions of law or fact that are not supported by allegations of

fact. Kedzie, 156 Ill. 2d at 127.




        1
         In the appendix to its appellee’s brief, the City attached documents in support of its arguments that were
not presented before the circuit court and were therefore not included in the record on appeal. We will not consider
those documents in our review. Jackson v. South Holland Dodge, Inc., 197 Ill. 2d 39, 55 (2001) (documents not
submitted to the circuit court and not properly a part of the record on appeal cannot be considered on appeal).

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¶ 23   Instead, on appeal, plaintiffs argue that it is not enough that the acts of Mr. Carter

occurred in connection with an “inspection” for the City to be immune from suit under sections

2-105 and 2-207. According to plaintiffs, for the immunity provisions to apply, a plaintiff must

have been injured by a specific condition on the property that violated applicable code

provisions, but was not detected or corrected as part of an inspection process. We disagree.

¶ 24   The plain language of sections 2-105 and 2-207 does not limit the immunities provided

therein to only occasions where an injury occurs as the result of a defect on the premises that was

not corrected or discovered due to an inadequate or negligent inspection or a failure to inspect.

As we indicated above, “where the language of the immunity is clear and unambiguous, we may

not read into it exceptions, limitations or conditions not expressly described by the plain

language of the immunity.” Pouk v. Village of Romeoville, 405 Ill. App. 3d 194, 197 (2010)

(citing Ware, 375 Ill. App. 3d at 581-82).

¶ 25   We certainly agree with plaintiffs that the cases cited by the City, including the Hess

decision upon which the circuit court primarily relied, involved injuries caused by hazardous

conditions on the property. However, these cases do not require sections 2-105 and 2-207 to be

interpreted such that a public entity is immune for wrongful conduct during an inspection only

where an unsafe condition on the premises was a cause of the alleged injury. Again, such an

interpretation would be contrary to the plain language of sections 2-105 and 2-207, as those

provisions do not explicitly contain such a limitation. Moreover, interpreting sections 2-105 and

2-207 in such a manner simply because prior cases involved fact patterns somewhat different

from the one presented here would run afoul of the notion that “courts are not authorized to make

exceptions to the Act that would nevertheless permit the imposition of liability” and “[i]n

instances where the Act applies, a court may not negate immunity by applying a judicially


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created rule.” First Midwest Trust Co. v. Britton, 322 Ill. App. 3d 922, 931-32 (2001).

¶ 26   Further, the Hess decision itself serves to support our conclusion that the inspection

immunities apply to bar plaintiffs’ action. The plaintiff in Hess was injured when she fell from a

second floor staircase at a building that had been subject to multiple inspections by the City,

which in turn had resulted in judicial proceedings for code violations. During the inspections, the

City had found the building’s staircase to be dangerous and hazardous, and the owner and

manager of the building began repairs to the staircase. Subsequent inspections by the City

showed that the repairs were not being completed in a proper manner. The plaintiff fell where a

portion of the handrail had been removed and replaced with yellow caution tape during the

course of repairs. The plaintiff alleged that the City acted in a wilful and wanton manner by

failing to adequately inspect the building, failing to properly train its inspectors, engaging in a

practice of hiring unqualified inspectors, failing to block access to or remove the hazardous

conditions of the staircase, failing to inform the judge who was hearing the code violation suit of

the dangers of the staircase, and requiring the owner to place yellow caution tape on the porch in

place of the handrail. Hess, 408 Ill. App. 3d at 632-33.

¶ 27   This court affirmed the order of the circuit court granting summary judgment for the City

on the basis that sections 2-105 and 2-207 applied to each of the wrongful acts of the City

relating to the inspection. We explained that “all of plaintiff’s assertions of wrongdoing were

allegedly committed by City inspectors while at the *** building for the purposes of conducting

inspections *** [and] we do not believe that the legislature was required to delineate every

conceivable act that is a part of the inspection process and specifically immunize each one.”

(Emphasis in original.) Id. at 649 (citing Rascher v. City of Champaign, 262 Ill. App. 3d 592,

596 (1994)).


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¶ 28    Similarly, plaintiffs here seek to impose liability on the City for Mr. Carter’s wrongful

conduct while present at the building for an inspection of the elevators. Once again, we conclude

that the legislature was not required to delineate within the immunity provisions contained in

sections 2-105 and 2-207 every conceivable act which may be involved in the inspection process.

¶ 29    In sum, sections 2-105 and 2-207 specifically provide protections relating to inspections

undertaken by a public entity and its employees. It would be inconsistent with these protections

if public entities and employees were subject to liability for their conduct in achieving and

carrying out such inspections. It would also be inconsistent with the overall purpose of the Act,

which is “ ‘to protect local public entities and public employees from liability resulting from the

operation of government.’ ” Hess, 408 Ill. App. 3d at 646 (quoting Ware, 375 Ill. App. 3d at 577­

78).

¶ 30    Finally, we note that plaintiffs also argue on appeal that, for the immunities provided in

sections 2-105 and 2-207 to apply, the inspection at issue must involve a determination of

whether a property “complies with or violates any enactment or contains or constitutes a hazard

to health or safety.” 745 ILCS 10/2-105 (West 2014); 745 ILCS 10/2-207 (West 2014). Plaintiffs

assert that the amended complaint demonstrates only that Mr. Carter was at the building for an

inspection, but does not contain allegations about the nature of that inspection. Thus, plaintiffs

contend that the City did not meet its burden of showing that the immunities applied to bar their

suit.

¶ 31    In response, the City maintains that this argument was not presented to the circuit court

and, therefore, it is forfeited. See U.S. Bank National Ass’n v. Prabhakaran, 2013 IL App (1st)

111224, ¶ 24 (any arguments not raised before the circuit court are forfeited and cannot be raised

for the first time on appeal). However, because our review of the dismissal entered in this matter


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is de novo, and the initial burden was on the City to show that the immunities provided in

sections 2-105 and 2-207 served as an affirmative defense, we will consider this argument.

¶ 32   The amended complaint specifically alleged that Mr. Carter was employed by the Bureau

to conduct inspections of elevators and that he was present at the building in that capacity. Mr.

Carter was also present at the building while repair or modernization of the elevators was being

completed by Rudy and his supervisor. At the time plaintiff was injured, Mr. Carter was

conducting a test of the elevator pit switch. These allegations, on their face, support the City’s

contention that Mr. Carter’s inspection, which included testing a particular part of an elevator,

was being done to determine whether the elevator system at the building presented a violation or

posed a safety hazard to those persons who would be using or maintaining the elevators. The

City thus met its initial burden of establishing that the immunity provisions of section 2-105 and

2-207 applied.

¶ 33   In response, plaintiffs presented no evidentiary support to refute a conclusion that Mr.

Carter’s inspection was done for the purpose of determining whether the elevators posed a safety

hazard. With plaintiffs having failed to carry the shifted burden of going forward, the City’s

motion was properly granted and the cause of action was properly dismissed. Epstein, 178 Ill. 2d

at 383. We therefore conclude that the circuit court properly found that sections 2-105 and 2-207

of the Act protected the City from liability and affirm the dismissal of plaintiffs’ amended

complaint, in its entirety, and with prejudice.

¶ 34   In so ruling, we note again that Mr. Carter died on May 27, 2015, the City spread his

death of record on August 25, 2015, the record contains no indication that an estate was opened,

and plaintiffs did not move to substitute an estate as a defendant or appoint a special

administrator pursuant to section 2-1008(b) of the Code. 735 ILCS 5/2-1008(b) (West 2014).


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Nevertheless, while the motion to dismiss was brought solely on behalf of the City, the motion

itself sought dismissal of the entire complaint and specifically asserted the protections for

governmental employees contained in section 2-207. In its oral ruling, the circuit court made it

clear that, in addition to dismissing the claims against the City, it also found that section 2-207

also barred any possible claims against the remaining named defendant, Mr. Carter.

¶ 35   To the extent that there is any possible doubt as to the status of plaintiffs’ claims against

the by-then deceased Mr. Carter at the time the circuit court dismissed this matter in its entirety,

we note again that the circuit court’s dismissal order may be affirmed for any reason, and upon

any ground warranted. Drexler, 408 Ill. App. 3d at 404. Section 2-1008(b) of the Code

specifically provides that “[i]f a motion to substitute is not filed within 90 days after the death is

suggested of record, the action may be dismissed as to the deceased party.” 735 ILCS 5/2­

1008(b) (West 2014). On appeal, this court is permitted by Illinois Supreme Court Rule

366(a)(5) (eff. Feb. 1, 1994) to “enter any judgment and make any order that ought to have been

given or made.” Plaintiffs’ failure to attempt to substitute a proper party below thus provides an

alternative basis to affirm the dismissal of their claims against Mr. Carter.

¶ 36                                   III. CONCLUSION

¶ 37   For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 38   Affirmed.




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