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1-01-0488

JUSTICE REID delivered the opinion of the court:

Following the dismissal of count III of the fourth amended complaint sounding innegligence and count III of the fifth amended complaint sounding in breach of contract, and thedenial of a motion to amend the pleadings to include a claim of unconstitutionality, Mary McCoyfiled this appeal. This case involves the injury and resulting drowning death of Arthur JamesMatthews.

Arthur Matthews was a longshoreman working for Ceres Terminals, Inc. (Ceres), at theIroquois Landing in the Port of Chicago. Ceres, for decades prior to the incident, had a contractwith the Illinois International Port District (Port District) to provide stevedoring and longshoring(also referred to as "terminalling") for ships coming into the port. A stevedore is one who isemployed in the loading or unloading of ships. The contract provides that, since there was notransfer of property to Ceres, the Port District retained overall control and possession of theproperty at the Iroquois Landing. It also specifically stated that it was the duty of the PortDistrict to "provide and maintain in good order and repair for the use intended the dock, wharfand open land."

On September 25, 1998, as part of his employment, Matthews was assisting in theuntying of a docked vessel. While working, Matthews fell into the Calumet River where hedrowned.

Photographs taken by the Occupational Safety and Health Agency (OSHA) showed thatthe concrete area on which Matthews was required to work was crumbled and dilapidated. According to testimony of the executive director of the Port District, the dock had not beenrepaired in at least 15 years prior to the injury.

The Port District operates its business on the bodies of water, including the CalumetRiver, surrounding the Port of Chicago. It also provides boat tours, arguably as a way ofsoliciting shipping business. The Port District, pursuant to statute, is responsible for themaintenance of the facilities on the properties near the water. It also collects fees for use of theport facilities and can supply fresh water to the shipping vessels that dock while doing business.

Mary McCoy, on Matthews' behalf, sued the Port District for negligence, claiming that itfailed to maintain the property in question, specifically the sea/dock wall from where Matthewsfell. The trial court dismissed the action on the basis that the Port District was immune fromliability pursuant to section 3-110 of the Local Governmental and Governmental Employees TortImmunity Act (Tort Immunity Act) (745 ILCS 10/3-110 (West 1998)).

A third amended complaint was filed on September 24, 1999. The only count in the thirdamended complaint was based on a theory of negligence. The Port District responded to the thirdamended complaint with a motion to dismiss pursuant to section 2-619 of the Illinois Code ofCivil Procedure. 735 ILCS 5/2-619 (West 1998). Again, the Port District argued that it wasimmune from liability under the Tort Immunity Act. 745 ILCS 10/1-101 et seq. (West 1998). The Port District argued its statutory immunity prevented it from being found liable forMatthews' death because it did not own, supervise, maintain, operate, manage or control LakeMichigan, where McCoy claimed in the third amended complaint that the drowning occurred.

On December 21, 1999, McCoy filed a fourth amended complaint. This time thecomplaint alleged a theory of negligence that was essentially the same as the third amendedcomplaint, with the exception that the plaintiff now claimed the Port District owned the dockadjacent to the Calumet River and that Matthews died in the Calumet River and not LakeMichigan. The trial court dismissed the fourth amended complaint on January 28, 2000, for thesame reasons it dismissed the previous complaint. A motion to reconsider and an amendedmotion to reconsider were subsequently filed. In those motions, McCoy also argued for leave toplead that section 3-110 was unconstitutional. The trial court granted leave to file the portion ofthe proposed fifth amended complaint that alleged the breach of contract claim. McCoy was alsogranted leave to include the previously dismissed negligence count, which remained subject tothe court's dismissal on January 28, 2000, and McCoy's then-pending amended motion toreconsider. McCoy's motion to add a count for injunctive/declaratory relief and motion toamend the dismissed negligence count were continued to September 8, 2000, the date of thehearing on that amended motion to reconsider.

On September 8, 2000, the trial court denied the amended motion to reconsider anddismissed the negligence count against the Port District. The trial court also denied leave toamend the fifth amended complaint to include the count claiming section 3-110 isunconstitutional.

On September 29, 2000, the Port District filed a motion to dismiss the breach of contractclaim against it in the fifth amended complaint pursuant to section 2-615 of the Illinois Code ofCivil Procedure. 735 ILCS 5/2-615 (West 2000). The basis of this motion was that there wereno specific provisions in the license agreement between the Port District and Ceres identifyingMcCoy or Matthews as a third-party beneficiary to the contract between them. The trial courtdismissed the breach of contract claim for the reasons presented by the Port District. To thatorder, the trial court added language of appealability from Illinois Supreme Court Rule 304(a). 155 Ill. 2d R. 304(a). For the following reasons, we affirm the decision of the trial court.

The trial court dismissed the relevant portions of the complaints at issue pursuant tosections 2-615 and 2-619 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-615, 2-619(West 2000). A section 2-615 motion to dismiss challenges the legal sufficiency of a complaint. Haddick v. Valor Insurance, 198 Ill. 2d 409, 413-14 (2001). "Upon review, all well-pleadedfacts in the complaint are taken as true. Facts apparent from the face of the pleadings, includingthe exhibits attached thereto, may be considered." Haddick, 198 Ill. 2d at 414, citingWeatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 186 Ill. 2d 472, 491-92 (1999). Thepurpose of a motion to dismiss under section 2-619 is to provide litigants with a method fordisposing of issues of law and easily proved issues of fact at the beginning of a case, reservingdisputed questions of fact for a trial, if necessary. Doyle v. Holy Cross Hospital, 186 Ill. 2d 104,109 (1999), citing Zedella v. Gibson, 165 Ill. 2d 181, 185 (1995). The question on appeal froman order granting dismissal under section 2-619 is "'whether the existence of a genuine issue ofmaterial fact should have precluded the dismissal or, absent such an issue of fact, whetherdismissal is proper as a matter of law.'" Doyle, 186 Ill. 2d at 109-10, quoting Kedzie & 103rdCurrency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17 (1993). Our review of a trial courtorder granting a motion to dismiss is de novo. Beetle v. Wal-Mart Associates, Inc., 326 Ill. App.3d 528, 531 (2001), citing Greb v. Forest Preserve District, 323 Ill. App. 3d 461, 463 (2001).

McCoy argues that section 3-110 of the Tort Immunity Act should not apply where thePort District performs some maintenance, control, supervision and management of the CalumetRiver, and that the negligence action should not have been dismissed based on immunity. McCoy argues that the Port District is a local public entity. While it is not the "owner" of theCalumet River where Matthews died, the Port District plays a role in the maintenance, control,supervision and management of the river by conducting business on the river and through itsresponsibility for the sea walls that contain the river. McCoy claims it is hard to imagine that thePort District could claim to have no such functions regarding the waters of the Port of Chicago. She argues that, if the entity has some maintenance, control, supervision and management of thewaterway, then the immunity does not apply. The amount of maintenance, control, supervisionand management is not an element of interpreting the statute. She also argues that while theIllinois International Port District Act (70 ILCS 1810/1 et seq (West 2000)) does not defineharbors, the term has been defined in other Illinois statutes to refer only to the water area and notthe adjacent lands. McCoy directs our attention to that portion of the Lake Calumet Harbor Act(615 ILCS 65/2 (West 2000)) she argues is applicable.

The Port District responds that it does not own, supervise, maintain, operate, manage orcontrol the Calumet River where the drowning took place. As a municipal corporation, the PortDistrict is entitled to certain immunities and defenses under the Tort Immunity Act (745 ILCS10/1-101 et seq. (West 2000)). The Port District seeks to promote its business, collect a fee, orprovide drinking water for ships, and this in no way demonstrates that the Port District maintains,controls, supervises or manages the Calumet River. Maintaining a wall does not constitutemaintenance of the river. The rights extended by the Illinois International Port District Actprovide the Port District with the ability to do certain things with respect to land-based facilities,such as own, construct, develop, improve, and maintain these facilities. The Port District alsoargues that Lake Calumet Harbor is distinct from the Calumet River, such that the Lake CalumetHarbor Act does not apply. The Port District further argues that the plain language of 3-110 isbrief, clear and unambiguous. The immunity applies to this decedent and these facts.

The trial court found that the Port District was immune from liability for its allegednegligence pursuant to statute. 745 ILCS 10/3-110 (West 2000). We agree. The issues raised inthis case are issues of statutory construction. The primary rule of statutory construction is toascertain and give effect to the intent of the legislature. Beetle, 326 Ill. App. 3d at 531-32, citingPeople v. Owens, 323 Ill. App. 3d 222, 228 (2001). The best indication of legislative intent is thestatutory language, given its plain and ordinary meaning. Lauer v. American Family LifeInsurance Co., 199 Ill. 2d 384, 388 (2002), citing Illinois Graphics Co. v. Nickum, 159 Ill. 2d469, 479 (1994). "'Generally, courts give a great deal of deference to an agency's interpretationof a statute which it is charged with administering [citations]. However, an agency'sinterpretation is not binding and will be rejected if erroneous [citations].'" Taylor v. CookCounty Sheriff's Merit Board, 316 Ill. App. 3d 574, 579 (2000), quoting Denton v. Civil ServicesComm'n, 277 Ill. App. 3d 770, 774 (1996).

The Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 2000)), in relevant part,discusses the rights, duties and immunity of the Port District in detail. Section 3-110 of the TortImmunity Act provides:

"Neither a local public entity nor a public employee is liable forany injury occurring on, in, or adjacent to any waterway, lake,pond, river or stream not owned, supervised, maintained, operated,managed or controlled by the local public entity." 745 ILCS10/3-110 (West 2000).

The Illinois International Port District Act provides, in relevant part, as follows:

"It shall be the duty of the Port District:

(h) To perform any other act or function which may tend toor be useful toward development and improvement of harbors, seaports, and port-related facilities and services and to increaseforeign and domestic commerce through the harbors and portswithin the City of Chicago." 70 ILCS 1810/4 (h) (West 2000).

The plain language of section 3-110 of the Tort Immunity Act is unambiguous. If thelocal public entity or public employee does not own, supervise, maintain, operate, manage orcontrol the waterway, lake, pond, river or stream, there is no liability for any injury occurring on,in, or adjacent to that waterway. Because the Port District is a creation of statutes, rules andregulations, its operational parameters are both defined and limited by those statutes, rules andregulations. It is there that we must look for guidance. The Illinois International Port DistrictAct defines the Port District's duties as follows:

"