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THIRD DIVISION
May 9, 2001

No. 1-00-1285

JUSTICE WOLFSON delivered the opinion of the court:

Plaintiff Kenneth Moorehead was injured when he slipped andfell while working as a laborer on a tunnel construction site. Plaintiff filed this action, alleging his injuries were caused bythe negligence of the Metropolitan Water Reclamation District ofChicago (Metropolitan), the owner of the project, and TunnelElectric Construction Company (Tunnel Electric), the company thatprovided lighting for the project. Metropolitan and TunnelElectric filed third party complaints against Perini/ICA/O&GJoint Venture (Perini), the General Contractor on the project andplaintiff's employer.

Metropolitan filed a motion for summary judgment. The trialcourt found the Tort Immunity Act (745 ILCS 10/1-101 et. seq.)barred plaintiff's suit against Metropolitan and granted thesummary judgment motion. Plaintiff appeals, contendingMetropolitan breached its duty to provide a safe work place. Plaintiff also contends Metropolitan breached its duty to provideadequate lighting in his work area. We affirm.

FACTS

Plaintiff began working for Perini in 1994. Metropolitanhired Perini to act as a General Contractor on its "Tunnel andReservoir Plan." Perini hired Tunnel Electric as a subcontractorto provide lighting for the project.

On June 18, 1996, plaintiff was working in one of the "deeptunnels" 180 feet below the ground. Plaintiff's job at the sitewas to make sure material got in and out of the tunnel shafts.

Though Tunnel Electric usually lit the area with a quartzlight and a string of lights, the lights were not working thatday. The area where plaintiff was working was in total darkness.

Plaintiff fell while he was unloading a flat bed trailer inthe tunnel. During his deposition, plaintiff testified he wascarrying materials from the trailer to an area further down thetunnel using the "monorail" system installed by Perini totransport materials. On his way back to the trailer, plaintifftried to avoid a platform that he knew was often covered withgrease and hydraulic fluid. Plaintiff could not see because itwas "pitch black." He was guiding himself along the wall of thetunnel when his right foot slid out from under him. Plaintifffell and landed on his buttocks and back.

Plaintiff filed this suit several months later. In hisFirst Amended Complaint, plaintiff alleged Metropolitan:

"a. Carelessly and negligently failed to provideadequate lighting;

b. Carelessly and negligently allowed work to continuewhen it was aware that the normal artificial lightingsystem was inoperable;

c. Failed to provide temporary lighting;

d. Failed to provide emergency lighting;

e. Failed to provide hand held flashlights and/orlanterns;

f. Failed to pump water seepage from the walkingsurfaces of the tunnel;

g. Failed to remove oil from the floor of the work sitearea;

h. Failed to place the flatbed trailer in a place withadequate lighting;

i. Failed to place the flatbed trailer in a place wherethe walking surface was free of water and oil;

j. Failed to provide a safe place to work;

k. Failed to repair the electrical lighting system inthe tunnel area."

Metropolitan filed a summary judgment motion. In themotion, Metropolitan claimed its only role in the tunnelconstruction was supervisory. Metropolitan argued section 3-108of the Tort Immunity Act immunized it from liability based upon anegligent failure to supervise. 745 ILCS 10/3-108 (West 1998). The trial court granted the motion.

DECISION

Duty to Provide Safe Work Place

Plaintiff contends the trial court erred in dismissing hisallegations that Metropolitan breached its duty to provide a safework place. While plaintiff concedes Perini was primarilyresponsible for safety at the work site, he contends Metropolitanretained control over safety issues. Metropolitan contends it isabsolutely immune from liability under section 3-108 of the TortImmunity Act (Act). 745 ILCS 10/3-108 (West 1998).

Review of the trial court's ruling on a motion for summaryjudgment is de novo. Lajato v. AT&T, Inc., 283 Ill. App. 3d 126,135, 669 N.E.2d 645 (1996). Summary judgment is proper when thepleadings, depositions, and affidavits on file, construed in thelight most favorable to the nonmoving party, establish there isno genuine issue of material fact and the moving party isentitled to judgment as a matter of law. Lajato, 283 Ill. App.3d at 135. Interpretation of the Tort Immunity Act is a questionof law appropriate for summary judgment. Dixon v. Chicago Boardof Education, 304 Ill. App. 3d 744, 747, 710 N.E.2d 112 (1999).

Section 3-108 of the Act immunizes public entities frominjury caused by the failure to supervise activities on publicproperty:

"(a) Except as otherwise provided in this Act, neithera local public entity nor a public employee whoundertakes to supervise an activity on or the use ofany public property is liable for an injury unless thelocal public entity or public employee is guilty ofwillful and wanton conduct in its supervisionproximately causing such injury.

(b) Except as otherwise provided in this Act, neither alocal public entity nor a public employee is liable foran injury caused by a failure to supervise an activityon or the use of any public property unless theemployee or the local public entity has a duty toprovide supervision imposed by common law, statute,ordinance, code or regulation and the local publicentity or public employee is guilty of willful andwanton conduct in its failure to provide supervisionproximately causing such injury." 745 ILCS 10/3-108(West 1998).

Plaintiff does not allege willful and wanton conductanywhere in the complaint. Instead, plaintiff claims thissection of the Act does not bar his suit against Metropolitanbecause Metropolitan retained "some control" over safety on thework site. Plaintiff points to the provision of the contractbetween Perini and Metropolitan which requires Perini to preparea "Site Safety Plan" and make it available to Metropolitan'sChief Engineer. Plaintiff also refers to provisions in thecontract requiring Perini to submit design plans toMetropolitan's Engineer in some instances and a provisionrequiring Perini to comply with Metropolitan's safety rules.

Plaintiff's contentions are not supported by the contract asa whole. The contract specifically says:

"Safety

(22) [Perini] shall be responsible for the safety of[its] employees, the Water Reclamation District'spersonnel and all other personnel at the site of thework. [Perini] shall be solely responsible for theadequacy and safety of all construction methods and thesafe prosecution of the work.

[Perini] shall have a written Site Safety Plan preparedby a Safety Professional, shall have a SafetyProfessional or his trained Safety Representative(s) onthe job at all times while work is in progress, shallhave a documented Safety Training Program and shallhave a Safety Work Method Check List System.

[Perini] shall stop work whenever a work procedure or acondition at a work site is deemed unsafe by the SafetyProfessional or his trained Safety Representative."

While the contract between Perini and Metropolitan requiresPerini to submit the name of its Safety Professional toMetropolitan for approval and lists requirements for the SafetyProfessional's qualifications, the terms of the contract indicatePerini is solely responsible for executing safety precautions onthe site. The minimal amount of control retained by Metropolitanunder the contract is the essence of a supervisory relationship - - Metropolitan retained the right to oversee the project and thesafety measures instituted by Perini.

Plaintiff also argues that Metropolitan's activeparticipation in "quality assurance" inspections shows that itsrole extended beyond merely supervisory. Plaintiff refers to thefollowing portions of the deposition testimony of Ray Brais,Perini's superintendent:

Q. Would those be the people that would deal withHarza for the most part?

A. Yes and no. I mean, Harza would deal with thesuperintendents and with me on technical aspects of thejob.

Q. Did you have any contact with anybody from theDistrict?

A. On a daily basis, yes.

Q. Who was that?

A. Site inspectors was - well, the lead over there wasBill Shepke. Then we had different inspectors.

Q. What type of things were they inspecting?

A. The District themselves was inspecting mostly theconcrete work. So cleanup work, concrete workfinishing. Finishes. All that quality assurance typeinspection.

Q. Did the District have anybody who came out onsafety issues?

A. I don't remember anybody being assigned to it, butthey would talk about it as bringing up certain issuesif they thought they were important.

And, earlier in his deposition:

Q. Would they do things like surveying?

A. No. Inspection, and they would decide certainaspects of rock molding, certain technical items thatneeded to be put in at the discretion of the owner,that type of thing.

Plaintiff seems to be arguing that a party's role will be deemed"supervisory" under the Act only if the party did not activelyparticipate in any aspect of the project.

In Longfellow v. Corey, 286 Ill. App. 3d 366, 368, 675N.E.2d 1386 (1997), the appellate court rejected the argumentthat a "supervisory" role does not allow for any activeparticipation. The Longfellow court found, for purposes of theTort Immunity Act, the term "supervision" includes coordination,direction, oversight, implementation, management,superintendence, and regulation. Longfellow, 286 Ill. App. 3d at370. The Longfellow court said:

"Because supervision often involves some level ofactive participation, it would be illogical to provideimmunity to a public employee for passively overseeingan activity, yet withhold immunity the moment such anemployee undertakes any active role in an activity thatemployee is supervising." Longfellow, 286 Ill. App. 3dat 370.

We find that the minimal amount of control retained byMetropolitan over safety issues and quality assurance does notexceed the bounds of a supervisory role for purposes of section3-108. Metropolitan's only active participation in the projectfocused on overseeing Perini's work and enforcing the terms ofthe contract. A party cannot be said to have exceeded asupervisory role simply because it acted to assure itself thatthe terms of its contract were being met.

Duty to Provide Lighting

Plaintiff also contends the trial court erred in dismissingthe allegations that Metropolitan failed to provide adequatelighting. Again, while plaintiff recognizes Perini and TunnelElectric were primarily responsible for lighting at the site, heclaims Metropolitan retained enough control over lighting to beheld liable.

Plaintiff relies on a provision of the contract that states,"[A]ny parts of the [electrical] equipment that become damaged ordangerous shall be immediately removed from service and repairedor replaced as directed by [Metropolitan's] engineer without anyadditional cost to [Metropolitan]."

When viewed in the context of the contract as a whole, theprovision referred to by plaintiff does not support hiscontention. The contract specifically states, "[Perini] shallprovide and maintain all temporary electrical power, lighting andwater services during all construction." Perini recognized thisobligation and hired Tunnel Electric as a lighting subcontractor.

The contractual provision referred to by plaintiff simplyshows Metropolitan retained control over the decision whether tohave damaged equipment repaired or to have it replaced. Again,this decision is supervisory in nature. Longfellow, 286 Ill.App. 3d at 370.

CONCLUSION

A review of the record shows Metropolitan's only role in thetunnel construction was supervisory. Section 3-108 providesimmunity to any injuries arising out of Metropolitan's negligentfailure to supervise the tunnel project. 745 ILCS 10/3-108 (West1998); Epstein v. Chicago Board of Education, 178 Ill. 2d 370,376, 687 N.E.2d 1042 (1997). The trial court's ruling grantingMetropolitan's summary judgment motion is affirmed.

CERDA, and BURKE, JJ., concur.