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THIRD DIVISION

November 20, 2002

PRESIDING JUSTICE SOUTH delivered the opinion of the court:

This appeal arises from an order of the circuit court granting defendant Metropolitan Pierand Exposition Authority's (MPEA) motion for summary judgment. On January 7, 1999,International Memory Products (IMP) filed a second amended complaint against Graphic ArtsShow Company, Inc., MPEA and The Freeman Companies (Freeman). IMP alleged that on orabout August 30, 1997, IMP began constructing a booth at the "Print 97" show. IMP used theservices of Graphic Arts and Freeman, which agreed to move the necessary materials in and outof the McCormick Place showroom. As part of the agreement, IMP paid Graphic Arts $11,200for a one-week rental of its booth space.

Between September 3 and September 10, 1997, "Print 97," a trade show for businessesengaged in graphic arts, took place at McCormick Place in Chicago, Illinois. McCormick Placeis owned and operated by MPEA. IMP, an Illinois corporation engaged in the business ofproviding high-end custom solutions and system integrations in the computer industry, contractedto participate in the "Print 97" show. Graphic Arts, a corporation engaged in the promotion oftrade shows for graphic arts businesses, leased a large portion of exhibit space from MPEA forthe "Print 97" trade show. Freeman, a contractor, entered into an agreement with Graphic Arts tomanage the "Print 97" show.

IMP leased a booth at the "Print 97" show to display its product, the Silicon GraphicOctane Computer System, to the print industry. It prepared its booth for the exhibit on Sunday,August 31, 1997, and on Tuesday, September 2, 1997. The booth was set up near one of the"emergency exit doors" on the east end of McCormick Place. During that period of time, theemergency exit doors were kept open so as to permit equipment for the show to be brought intothe showroom.

In its negligence complaint, IMP alleged that during the show MPEA retained ultimatecontrol of the opening and closing of the massive emergency exit doors which permitted ingressand egress for all the exhibitors to transport their products, and that as a lessor of space fromMPEA's tenant, Graphic Arts, IMP was a business invitee to which MPEA owed a duty to protectits property from heavy winds entering through the emergency doors located near its booth. Thecomplaint further alleges that heavy winds damaged its exhibit to the extent that it could not bedisplayed in the trade show and destroyed a third of its booth. IMP argues that MPEA knew or,in the exercise of reasonable care, should have known of the propensity of heavy winds to enterthrough these emergency doors and that, as a result, MPEA was negligent for failing to protectIMP's property from the heavy winds coming through the emergency exit doors because it hadactual knowledge of the potentially dangerous condition of heavy winds entering into the showdue to prior incidents as a result of communications between MPEA employees and Freemanemployees. IMP asserts that MPEA's employees had been directly informed by IMP andFreeman employees that wind had blown down a portion of its booth prior to the start of theshow but that MPEA employees refused to close the doors.

During the course of discovery, nine depositions were taken.

Drew Massa, the manager of Freeman's risk management department, testified thatFreeman is a trade show and convention contractor and was the drayage contractor for the "Print1997" show. As a risk manager, Massa is typically on site for the major shows such as "Print97," and he would set up a temporary office on the show floor. While working at McCormickPlace, Massa has received complaints about damage to property due to the wind. He testifiedthat when he has walked around the site, he has seen booths blown down. However, he could notrecall whether he received any complaints on September 2, 1997, regarding wind damage, norcould he recall whether he spoke to Earl McGee of IMP concerning damage to his booth duringthe 1997 print show. He did not know whether anyone at MPEA was aware of heavy windsentering McCormick Place on September 2, 1997, or of the damage to IMP's booth. He nevercontacted anyone at MPEA regarding wind damage and was not aware of any requests to closethe doors due to heavy winds.

Massa further testified that the shows hire their own security during the move-in andmove-out phases and during the shows on the show floor. Freeman hired teamsters to work theshows. The electricians, however, were employed by MPEA, and the exhibitors would orderthem at an MPEA desk located on the show floor. The show decides who the service contractorswill be. However, Massa did not believe there were any contracts between MPEA and Freeman.

Lonell Fletcher, a security officer for MPEA working in the control room, was present atMcCormick Place on September 2, 1997. His shift was from 10 p.m. on September 2 to 6 a.m.on September 3, and he was responsible for dispatching calls coming in on the telephone linesand for monitoring the security cameras and the computer security system. He did not knowabout the damage to plaintiff's booth until his supervisor informed him about having hisdiscovery deposition taken.

Fletcher testified that there was a procedure to be followed before opening or closing anemergency door. The emergency door would be raised up if a teamster called the control roomand requested that the door be raised so that the exhibitors could move their materials in and outof the showroom. Fletcher would then dispatch one of the MPEA security officers to go down tothe floor. Once the security officer went down to the show floor, he would go to the door thatneeded to be opened and check with the show security to let security know that they had receiveda request from a teamster that an emergency door needed to be opened. The show security arehired by show management, not the MPEA, and they run the show floor. Show security canactually request that MPEA security not come onto the show floor for any reason, and MPEAsecurity do not maintain a post on the floor. Once the show security approve, the MPEA securitycan then come onto the show floor and put a key into the door and electronically open it. If forany reason show security say that the door should not be opened, the request to open it will notbe honored. Only MPEA can actually insert the key to open and close the door. Show securityand the teamsters work in tandem. If show security make a call to have a door closed, they haveto check with the teamsters to make sure that they do not need to bring freight through that door. If the teamsters make a call to open the door, they must check with show security so that securitycan man the door for security purposes. Fletcher testified that there was always at least onerequest per show that the doors be closed due to the wind.

After reviewing the daily activity log for September 2, 1997, Fletcher stated that as of7 a.m. all of the perimeter doors were opened, but there was no indication that they were everclosed during the duration of the day.

Fletcher testified that in his experience over the 10 years he has been working as asecurity officer there has never been a request made by a teamster to open or close the doors thatwas not honored. There have been requests from nonteamsters that were not honored but couldhave been had the requests been made through the proper channels. There are an average ofapproximately five calls per show from nonteamsters to open or close the doors. The reasons forthe requests are due primarily to the weather being too cold or too hot. Fletcher did not recallever receiving a direct call from an exhibitor requesting that the doors be closed due to a heavywind. In his 10 years of experience, he has never opened or closed the doors without a requestfrom a teamster or show security except on the last day of the move-out at midnight when thefloor is being cleared.

Thomas O'Keefe, an MPEA electrician, testified that on September 2 he was responsiblefor installing electrical power for the booths at "Print 97." He discussed the wind entering through the emergency doors with many of the exhibitors on that day. He did recall, however, abooth being knocked over sometime between 9 p.m. and midnight. He heard a loud noise andwent into the booth and unplugged the lights so that they would not start a fire. There was noone in the booth when he entered it. The emergency door near the IMP booth had been opened,but he did not open or close the emergency door because it was keyed by security personnel onlyand that was not his job.

Earl McGhee, a sales associate with IMP, assembled the booth on September 2. He wasalso in charge of making connectivity and software installations to the system, as well asmanning the booth. He first noticed the drafts of wind coming toward the IMP booth during hisfirst day of setup, which was August 31, 1997. The back wall to the booth blew over on that day. He informed an electrician named "Lou," who had on a uniform, that it was "awfully windy" andasked him if he could close the door. Both John Duffy and Ray Cortesi, other IMP salesassociates, were present at the time. McGhee testified that the electrician just ignored him. Hedid not ask him again on that day. Duffy also went over and talked with the manager of theelectricians on that day about the wind, but McGhee was not present during this conversation.

On September 2, McGhee noticed the wind when he arrived at McCormick Place and thatthe door closest to his booth was open. The first thing he noticed was that the IMP booth wallhad blown over again. He spoke with "Lou" again about the wind in Duffy's presence atapproximately 10 a.m., but Lou did not respond to him. He spoke with him again atapproximately 12 noon, and this time "Lou" told him that he needed to talk to someone in thetrade show office. McGhee never pursued the matter any further because his primaryresponsibility was to set up the booth. He never mentioned the wind problems to anyone at thesecurity booth.

McGhee left McCormick Place on that day at about 3 or 4 p.m. and returned that eveningat about 9:30 p.m. When he came back to the IMP booth, the back wall of the booth was notperpendicular but on an angle. As he began fixing the back wall to make it perpendicular again,a tower located on the eastern side of the booth blew over with an SGI octane, speakers andmonitors attached to it. The door directly adjacent to the eastern portion of the booth was open. He does not remember any equipment being brought in or out of the door at that time.

McGhee testified further that he went to the booth where he spoke to "Lou" earlier thatday and told him that "the booth just blew over." "Lou" said that he wanted to take pictures anddisconnect the electricity. McGhee wrapped up the damaged parts in bubble plastic, and securitytook the parts to storage until the show was over. During the show, the doors adjacent to thebooth were closed. There was also a booth east of the IMP booth that had been blown down thatafternoon as well, and its exhibitors were yelling and screaming at "Lou."

McGhee testified that the person named "Lou" really could have been Drew Massa, sincethat name did seem very familiar. He could not remember if the person he spoke to really wasnamed "Lou."

John Duffy, an IMP sales representative, testified that he was present during the "Print97" show setup but was not present at the time of the incident. He was responsible for where thebooths were going to be located. IMP contracted with Freeman to move in its booth and all ofthe products that would be a part of its booth. Duffy contracted with Graphic Arts for the space. Duffy initially had no problems with the location of the IMP booth. However, on Saturday,August 30, when they were setting up the booth, the carpenters had problems setting up the boothdue to the wind. On Sunday, August 31, the wind was blowing against the booth. He did asksomeone generally, maybe a "forklift driver or someone like that," if he could lower the door, buthe does not recall for whom this person worked.

On Tuesday, September 2, when Duffy came in at approximately 2:30 p.m., the wind wasblowing hard against the booth. He went to the electricians' office and asked if someone couldlower the door. The gentleman told him that there was nothing he could do about it, but that heshould go and talk to one of the teamsters. Duffy spoke with the shop steward, who told him thathe could not lower the door but that if the booth got knocked over, they would put it up again.

Duffy spoke to a fork lift operator/teamster about the wind again at approximately 6:30p.m. The teamster directed him to another gentleman, who told him that if the booth blew overhe would help him put it back up again but he could not lower the door. At that time they werestill moving things onto the showroom floor through the door. Other than the forklift operator,the shop steward and the electrician, Duffy did not ask anyone else to close the door. When heleft for the evening the emergency door was still open. He never had any problems with the windduring other shows at McCormick Place, but the booth had never been located in the area nearthe emergency door. After the show was over, the booth was dismantled by the teamsters fromFreeman.

Roger Meyer, a security officer with MPEA in charge of control operations, was workingon September 2 at the "Print 97" show from 2 p.m. to 10 p.m. Since he has been working as acontrol operator, he has received complaints about the wind. When he got a complaint, he wouldcontact the show manager, who would decide whether or not they could lower the doors. Ifsecurity personnel could not reach a show manager, they would not lower the doors on their own. Meyer testified that although they are not supposed to lower the doors without the approval of ashow manager, he would lower the doors when he was on the squad if a show manager could notbe located and would continue to try to contact one to let him know what he had done. In hisopinion, the security personnel did have a certain amount of discretion to close the doors incertain situations when the wind was causing damage to a booth. He did not know of anyoneelse who had ever closed the doors without the approval of a show manager, and he had onlydone it twice in his 12 years as a security officer for the MPEA.

Finally, Meyer testified that if he ever received a request to lower a door due to possiblewind damage, he would never ignore it. Based upon the "log sheet" for September 2, after thedoor was opened in the morning, there was never a request made to lower it during his shift.

Madonna Doyle, an MPEA electrician, testified that she was present on the evening ofSeptember 2. She received complaints from people on the showroom floor about it being cold,but she did not recall getting complaints about the wind or about booths being blown down dueto the wind.

Herman Jackson, an MPEA security supervisor for 13 years in the north building,testified that his responsibilities included setting up the work assignments for the officers,reviewing the daily logbook assignments, and monitoring the officers on their assignments. Asof September 2, 1997, he was not aware of any requests to close the doors at the north buildingduring a show due to high winds. MPEA security never open or close the doors unless they havebeen given authorization to do so by the teamsters, and their only responsibility is to activate theswitch. Jackson testified that each show provides its own security.

Patrick Nolan, a teamster, testified that he normally worked at McCormick Place. Eachtime someone wants to have a show at McCormick Place, he has to contract with the teamsters tomove all of his materials in and out of the showroom area. Although he has never seen the windcoming in through the emergency doors knock over exhibits, he knows it has happened. Theteamsters cannot prevent MPEA security from opening the doors, and there are no labor laws thatwould permit only the teamsters to authorize the opening and closing of the doors. The normalprocedure is that since MPEA security are not on the floor, they would receive a request to openor close the doors from people working on the floor.

Although the teamsters have a contract with MPEA, they do not work for them. Theywork primarily for the outside trade show contractors, and in this particular case, they wereworking for Freeman.

James Nelson, the corporate loss prevention manager for MPEA, testified by way ofaffidavit that MPEA did not, nor did any of its employees, decide when the loading dock doorswould be opened or closed. Those decisions were left up to the show and its contractors. MPEAsecurity would turn a key and open or close the doors on the instructions of the showrepresentative.

After all of the discovery depositions were taken, MPEA filed a motion for summaryjudgment arguing that it cannot be held liable for the damage to plaintiff's property because it isprotected under section 3-105 of the Local Governmental and Governmental Employees TortImmunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 1998)). In addition,MPEA argued that there was no duty to plaintiff because MPEA was merely a licensor and didnot participate in putting on the "Print 97" show, nor did it assume a duty to protect plaintiff fromthe wind. Finally, MPEA argued that even if there was duty to plaintiff, it is protected undersection 3-108 of the Tort Immunity Act for any improper or negligent supervision of activities ofthe contractor of the trade show. The court granted the motion, stating that MPEA did not owe aduty to plaintiff.

Plaintiff raises one issue for our consideration: whether the trial court erred in grantingsummary judgment in favor of MPEA based upon the allegations in plaintiff's second amendedcomplaint and the facts established during discovery.

Summary judgment may be granted only when "the pleadings, depositions, andadmissions on file, together with the affidavits, if any, show that there is no genuine issue as toany material fact and that the moving party is entitled to a judgment as a matter of law." 735ILCS 5/2-1005(c) (West 2000).

"In a cause of action alleging negligence, the plaintiff must establish the existence of aduty, a breach of that duty, and an injury proximately resulting from the breach of that duty."Parsons v. Carbondale Township, 217 Ill. App. 3d 637, 643, 577 N.E.2d 779, 783 (1991). In theabsence of a showing from which the court could infer the existence of a duty, no recovery by theplaintiff is possible as a matter of law and summary judgment in favor of the defendant is proper. Rowe v. State Bank of Lombard, 125 Ill. 2d 203, 215, 531 N.E.2d 1358 (1988). Whether underthe facts of a case there is a relationship between the parties requiring that a legal obligation beimposed upon one for the benefit of another is a question of law to be determined by the court. Rowe, 125 Ill. 2d at 215; Pelham v. Griesheimer, 92 Ill. 2d 13, 18-19, 440 N.E.2d 96 (1982);Barnes v. Washington, 56 Ill. 2d 22, 26, 305 N.E.2d 535 (1973).

Plaintiff maintains that the trial court erred as a matter of law when it held that MPEA didnot owe it a duty of care. Since the MPEA is a public entity, whether it owes plaintiff a duty ofcare is governed by the Tort Immunity Act. 745 ILCS 10/1-101 et seq. (West 1998); see Gusichv. Metropolitan Pier and Exposition Authority, 326 Ill. App. 3d 1030 (2001) (the MetropolitanPier and Exposition Authority is immune under the Tort Immunity Act).

Whether a duty of care exists is a question of law to be determined by the court and thusmay be determined on a motion for summary judgment. Pelham v. Griesheimer, 92 Ill. 2d 13,18-19, 440 N.E.2d 96 (1982); Wojdyla v. City of Park Ridge, 148 Ill. 2d 417, 421, 592 N.E.2d1098 (1992).

In Illinois, a governmental entity was originally immune from tort liability under thedoctrine of sovereign immunity. However, Illinois abolished sovereign immunity in 1959. Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11, 163 N.E.2d 89 (1959). In1970, the Illinois Constitution also abolished the doctrine of sovereign immunity, except as thelegislature may provide by statute (Ill. Const. 1970, art. XIII,