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SIXTH DIVISION
December 14, 2001

No. 1-01-0307

JUSTICE O'BRIEN delivered the opinion of the court:

Plaintiffs, James and Mary Gusich, appeal the order of the circuit court granting summaryjudgment for defendants, Metropolitan Pier & Exposition Authority and Windy City Maintenance, onplaintiffs' negligence action. On appeal, plaintiffs argue that questions of material fact exist, precludingsummary judgment. We reverse the order granting summary judgment for Windy City Maintenanceand remand for further proceedings, and we affirm the order granting summary judgment forMetropolitan Pier & Exposition Authority.

On August 15, 1996, plaintiff James Gusich (plaintiff) was employed by Lewellen and BestDisplays, Incorporated, to set up, dismantle, and recrate convention exhibits at the 1996 Hardware Showat McCormick Place. While loading plexiglass into crates on a loading dock at McCormick Place,plaintiff allegedly stepped on a soda can, slipped, and fell off the dock, injuring himself.

Plaintiffs filed a negligence action against defendant Metropolitan Pier & Exposition Authority,the owner and operator of McCormick Place, and against codefendant Windy City Maintenance, whichhad contracted with Metropolitan Pier & Exposition Authority to inspect and clean the loading dock. Plaintiffs alleged that defendants were negligent in failing to properly clean the debris on the loadingdock. The circuit court granted summary judgment for both defendants, finding that Metropolitan Pier& Exposition Authority was immune under the Local Governmental and Governmental Employees TortImmunity Act (Tort Immunity Act) (745 ILCS 10/1-101 (West 1996)) and that Windy City Maintenancehad neither actual nor constructive notice of the soda can that allegedly caused plaintiff to fall. Plaintiffsfiles this timely appeal.

Summary judgment is appropriate when, viewed in the light most favorable to the nonmovingparty, the pleadings, depositions, and admissions on file reveal that no genuine issues of material factexist and that the moving party is entitled to judgment as a matter of law. Ragan v. Columbia MutualInsurance Co., 183 Ill. 2d 342, 349 (1998). The standard of review in cases involving summary judgmentis de novo. Ragan, 183 Ill. 2d at 349.

First, we address the circuit court's grant of summary judgment for defendant Metropolitan Pier& Exposition Authority (Metropolitan). The circuit court concluded that Metropolitan acted in a strictlysupervisory capacity with respect to the cleanup, as the evidence showed that Metropolitan's role was todirect the Windy City Maintenance cleaning crews how and where to clean. Accordingly, the circuitcourt granted summary judgment for Metropolitan pursuant to section 3-108 of the Tort Immunity Act,which provides that neither a local public entity nor a public employee is liable for an injury caused bynegligent supervision of an activity on or the use of any public property. See 745 ILCS 10/3-108 (West1996); Henrich v. Libertyville High School, 289 Ill. App. 3d 809, 813 (1997), aff'd, 186 Ill. 2d 381 (1998).

Plaintiffs do not dispute that Metropolitan is a local public entity or that the site of the accident,the loading dock at McCormick Place, is public property. Rather, plaintiffs argue that Metropolitanacted in something other than a supervisory capacity. Specifically, plaintiffs argue that Metropolitanordered Windy City Maintenance on August 15 not to clean the loading docks but to clean thebathrooms instead. Plaintiffs argue that by giving such an order, Metropolitan acted not as a supervisorbut as one that has "complete control" of the work being done on the premises and, thus, section 3-108does not immunize Metropolitan from liability.

Plaintiffs waived review of this issue by failing to cite any authority in support of their argument. 188 Ill. 2d Rs. 341(e)(7), (f). However, waiver is a limitation on the parties, not the reviewing court. American Federation of State, County & Municipal Employees, Council 31 v. County of Cook, 145 Ill.2d 475, 480(1991). We choose to address the issue on its merits.

Resolution of this issue requires us to construe section 3-108. The construction of a statute is aquestion of law for which we conduct de novo review. People v. Robinson, 172 Ill. 2d 452, 457 (1996). The cardinal rule of statutory construction is to ascertain and give effect to the true intent of thelegislature. Robinson, 172 Ill. 2d at 457. The best evidence of legislative intent is the language used inthe statute itself, which must be given its plain and ordinary meaning. People v. Tucker, 167 Ill. 2d 431,435 (1995).

Section 3-108 immunizes local public entities that negligently "supervise" activity on publicproperty. 745 ILCS 10/3-108 (West 1996). The plain and ordinary meaning of "supervise" is to "overseewith the powers of direction and decision the implementation of one's own or another's intentions." Webster's Third New International Dictionary 2296 (1986). The undisputed facts show that on August15 Metropolitan oversaw Windy City Maintenance's work and directed the Windy City Maintenancecleaning crews as to where to clean. Metropolitan's actions on August 15 fall within the plain andordinary meaning of "supervise"; accordingly, section 3-108 immunizes Metropolitan from liability asa matter of law.

Our holding is supported by Moorehead v. Metropolitan Water Reclamation District, 322 Ill.App. 3d 635 (2001). In Moorehead, the plaintiff was injured when he slipped and fell while working asa laborer for Perini/ICA/O&G Joint Venture (Perini), the general contractor on a tunnel constructionsite. Moorehead, 322 Ill. App. 3d at 636. The plaintiff filed an action alleging in part that his injurieswere caused by Metropolitan Water Reclamation District of Chicago (the District), the owner of theproject. Moorehead, 322 Ill. App. 3d at 636. The trial court granted the District's motion for summaryjudgment based on section 3-108. Moorehead, 322 Ill. App. 3d at 637. On appeal, the plaintiff arguedthat section 3-108 did not apply because the District retained "some control" over the work site. Moorehead, 322 Ill. App. 3d at 638. The plaintiff pointed to the provision of the contract between Periniand the District that requires Perini to prepare a "Site Safety Plan" and make it available to the District'schief engineer. Plaintiff also referred to provisions in the contract requiring Perini to submit designplans to the District's engineer in some instances and a provision requiring Perini to comply with theDistrict's safety rules. Moorehead, 322 Ill. App. 3d at 638. Plaintiff argued that by actively participatingin the project, the District acted in more than a supervisory capacity and therefore section 3-108 did notapply. Moorehead, 322 Ill. App. 3d at 639.

The appellate court rejected the argument that a "supervisory" role does not allow for any activeparticipation. Moorehead, 322 Ill. App. 3d at 639. The court noted that for purposes of section 3-108,the term "supervision" includes coordination, direction, oversight, implementation, management,superintendence, and regulation. Moorehead, 322 Ill. App. 3d at 639. The court held that the "amountof control retained by [the District] under the contract is the essence of a supervisory relationship--[theDistrict] retained the right to oversee the project and the safety measures instituted by Perini." Moorehead, 322 Ill. App. 3d at 639. The court affirmed the grant of summary judgment for the District. Moorehead, 322 Ill. App. 3d at 640-41.

Similarly, here the amount of control retained by Metropolitan is the essence of a supervisoryrelationship--Metropolitan retained the right to oversee and direct the cleanup of McCormick Place. Accordingly, section 3-108 bars plaintiffs' cause of action. We affirm the circuit court's grant of summaryjudgment for Metropolitan.

The circuit court also granted summary judgment for Metropolitan pursuant to section 3-106of the Tort Immunity Act (745 ILCS 10/3-106 (West 1996)). As a result of our disposition of this case,we need not address the applicability of section 3-106.

Next, we address the circuit court's grant of summary judgment for Windy City Maintenanceon plaintiffs' negligence claim. To assert a claim for negligence, plaintiffs must plead and prove thatWindy City Maintenance breached a duty of care owed to plaintiffs and that the breach of dutyproximately caused plaintiffs' injuries. Grove v. City of Park Ridge, 240 Ill. App. 3d 659, 661 (1992).

Plaintiffs allege that Windy City Maintenance was contractually bound to provide daily cleanupof McCormick Place, including the loading dock. Plaintiffs further alleges that in violation of itscontract, Windy City Maintenance negligently failed to clean the debris on the McCormick Place loadingdock on the day of plaintiff's fall.

Windy City Maintenance argues that summary judgment was properly entered in its favorbecause plaintiffs presented no evidence of any debris in the area where plaintiff fell. We disagree, asplaintiff testified in his deposition that he fell on debris (specifically, a soda can) on the loading dock. Plaintiff testified in pertinent part as follows:

"Q. Now, you said that you tripped or stepped onto the pop can and then fell off thedock, correct?

A. Yes.

Q. Can you describe in terms of-was it-which foot stepped onto the pop can?

A. My left.

Q. And did your left foot then slip forward on the pop can or did you trip over the popcan?

A. Can slipped and I slipped with the can.

Q. Okay. So you and the can both went off the edge?

A. Yes.

* * *

Q. Did you point out to anyone *** the pop can that you slipped on?

A. Yes, I did.

Q. Okay. Who did you point it out to?

A. They asked what happened. I slipped on that pop can over there. The can wentflying out when it happened. I told the guy with the camera and that. The can was laying [sic]on the ground.

Q. Okay. This was the guy who said he was from McCormick Place that you told thatto right after you fell?

A. Whoever the guy was that came out there.

Q. And he said-

A. He asked what happened. I said I slipped on that damn pop can."

Further, plaintiff's supervisor, Ronald Broadbent, testified that he saw debris, including cans and bottles,on the loading dock the day before, and the day of, plaintiff's fall. Specifically, Broadbent testified asfollows:

"Q. And did [plaintiff] tell you anything about how he fell?

A. He said that he had tripped on a pop can also.

Q. Did you have an opportunity to see a pop can?

A. There was a lot of garbage on the ground at that point in time.

Q. All right.

A. There was [sic] cans, there was [sic] bottles, there was paper, boards. I mean there wasa bunch of stuff on the ground.

* * *

Q. And when you say in that area, the general vicinity of this dock area that's shown inthe photos?

A. Yes.

* * *

Q. All right. And for the week before this incident, was there this similar type of garbagearound the dock area?

A. There was-yeah, there was-there was garbage around that area prior to the show. ***

Q. Was the garbage that you-that was noticeable on the day of [plaintiff's] fall, was itthere all that day?

A. From what I could tell, yes.

Q. How about the day before?

A. That's probably when it was created, because that-the day before that was the down,the first day the show broke, and product and everything else was being packed that night. Theempties were going back into the building. And usually that does create a lot of garbage andstuff in the aisles and all over the loading docks and areas.

Q. When you say empties, you mean crates?

A. Crates, yes.

Q. Okay.

A. Empty crates.

Q. Now, specifically with regard to cans and bottles, were those types of debris aroundthe day before?

A. Yes."

Taken together, and viewed in the light most favorable to the plaintiff (the nonmovant),plaintiff's and Broadbent's testimony raises questions of material fact as to: (1) whether Windy CityMaintenance had or should have had notice of the garbage and debris during its daily cleanup of theloading dock; (2) whether Windy City Maintenance breached its duty of care by failing to clean awaysaid garbage and debris; and (3) whether Windy City Maintenance's breach of duty proximately causedplaintiff to slip and fall.

Windy City Maintenance argues that it is not liable in negligence because it was ordered byMetropolitan to clean the bathrooms instead of the loading dock on August 15. However, questions ofmaterial fact exist regarding: (1) whether the debris at issue was present on the loading dock prior toAugust 15 and, thus, whether the debris should have been cleaned prior to plaintiff's fall; and (2)whether, under the contract, Windy City Maintenance was obligated to clean the loading dock onAugust 15 notwithstanding the directive concerning the cleaning of the bathrooms. Accordingly, wereverse the order granting summary judgment for Windy City Maintenance on plaintiffs' negligencecomplaint and remand for further proceedings.

Affirmed in part and reversed in part; cause remanded.

BUCKLEY AND O'MARA FROSSARD, JJ.'s concur.