Appeals court: Metro Water District can't use state law to escape lawsuit from worker who fell 29 feet into tank

By Jonathan Bilyk | Nov 6, 2018

By puroticorico [CC BY-SA 2.0 (], via Wikimedia Commons

A state appeals court has refused to flush a lawsuit against the organization responsible for treating Cook County’s sewage, which was brought by a worker who was hurt in a fall from a ladder into a mostly empty treatment tank, as the judges said the Metropolitan Water Reclamation District of Greater Chicago can’t use immunity often granted under state law to escape the lawsuit, when it had earlier declared its officials didn’t know about the condition that led to the worker’s injuries.

On Nov. 5, a three-justice panel of the Illinois First District Appellate Court in Chicago overturned the ruling of Cook County Judge William E. Gomolinski, who had earlier granted judgment to the Metropolitan Water Reclamation District in the personal injury lawsuit brought by plaintiff Jeffrey Andrews and his family.

The opinion was authored by Justice John C. Griffin, with justices Mary L. Mikva and Daniel J. Pierce concurring with the decision.

“Here, the act or omission from which plaintiff’s injury is alleged to have resulted is defendant allowing the workers to repeatedly use an unsafe ladder configuration,” Justice Griffin wrote. “Defendant claims it knew nothing about the utilization of that method. Thus, defendant has not met its evidentiary burden of showing that it exercised discretion when allowing the workers to use the putatively unsafe method.

“Just because a party has a right to exercise discretion does not mean that it did exercise discretion.”

Andrews and his family had filed suit in Cook County Circuit Court in 2012. According to the complaint, Andrews worked for a contractor, identified as the F.H. Paschen, S.N. Nielson/IHC Construction Joint Venture, and which was hired by the MWRD to construct “primary settling tanks and grit removal facilities” at MWRD’s treatment facilities.

As part of that project, workers were required to descend into the tanks to apply sealants. However, the depth of the tanks required workers to descend a portion of the distance into the tanks using a ladder specially made and installed by the construction crews. Then, they stepped onto a fiberglass ladder to complete the descent.

The court documents noted the arrangement lacked a “horizontal access platform” to facilitate the transfer step from the first installed ladder to the second one that had been placed into the tank.

While the workers had successfully completed the maneuver previously, the decision noted in his final tank descent, Andrews slipped while stepping from one ladder to the other, and fell 29 feet on top of a coworker, suffering “broken bones and severe, career-ending head injuries.”

After Andrews filed suit, Judge Gomolinski shut the case against the MWRD down before trial, siding with the MWRD which had argued for dismissal and summary judgment by asserting both that it had no knowledge of the ladder configuration and that it should be immune from such a lawsuit under Illinois law, which can grant immunity to public bodies and public officials “exercising discretion” in carrying out official duties or setting public policy.

On appeal, however, the First District justices found both positions lacking.

The justices said Illinois law and case law doesn’t require plaintiffs to necessarily prove the MWRD had any kind of prior knowledge of the allegedly dangerous ladder maneuver.

Nor, the justices said, could the MWRD also simultaneously claim the MWRD employee overseeing the project was setting policy or otherwise exercising discretion in allowing the ladder configuration, when that same employee asserted he had no knowledge of the allegedly dangerous condition and maneuver.

“Here, we have a defendant claiming ignorance of the condition giving rise to the injury altogether,” the justices said.

The issues of the case could be best worked out before a jury, at trial, the justices said.

The Andrews family is represented in the case by attorneys with the firm of Corboy & Demetrio P.C., of Chicago.

The MWRD and other defendants are represented by the firm of Brady Connolly & Masuda P.C., of Chicago.

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Organizations in this Story

Brady Connolly & Masuda Pc Circuit Court of Cook County Corboy & Demetrio, PC Illinois First District Appellate Court Metropolitan Water Reclamation District of Greater Chicago

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