IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

                                                 COUNTY DEPARTMENT, LAW DIVISION

 

LAVERGNE COLEMAN,                                                                    )

                                                                                                                )

                                                                Plaintiff,                                 )

v.                                                                                                             )              

                                                                                                                )

HOWARD HOEKSTRA, individually and as                                  )              

Agent for A & J CARTAGE, a Wisconsin                                      )              

Corporation, and/or as Agent for GNA                                            )              

TRUCKING, an Illinois Corporation and/or                                     )

as Agent for CITY OF CHICAGO, a                                                 )

Municipal Corporation, A & J CARTAGE,                                      )

GNA TRUCKING, CITY OF CHICAGO, and                                   )

ROBERT BELL,                                                                                    )

                                                                                                                )              

                                                                Defendants.                          )

                                                                                                                )              

                                                                                                                )                             

                                                                                                                )

ROBERT BELL,                                                                                    )

                                                                                                                )

                                                                Cross-Plaintiff,                      )

v.                                                                                                             )               No.:     02 L 3916

                                                                                                                )

HOWARD HOEKSTRA and A & J                                                  )

CARTAGE,                                                                                           )              

                                                                                                                )

                                                                Cross-Defendants.               )

                                                                                                                )                              

                                                                                                                )

HOWARD HOEKSTRA and A & J                                                  )

CARTAGE,                                                                                           )

                                                                                                                )

                                                                Cross-Plaintiff,                      )

v.                                                                                                             )

                                                                                                                )

ROBERT BELL,                                                                                    )

                                                                                                                )

                                                                Cross-Defendant.                 )

 

MOTION OF GNA TRUCKING, INC. AND THE CITY OF CHICAGO

FOR SUMMARY JUDGMENT

 

            NOW COME the Defendants, GNA TRUCKING, INC. and the CITY OF CHICAGO, by and through their attorney, LAW OFFICES OF LOWELL D. SNORF, III, and move this Honorable Court pursuant to 735 ILCS 5/2-1005(b) for summary judgment as to the following issues of Plaintiff’s Complaint at Law:

1.

ON JANUARY 15, 1999, GNA TRUCKING, INC. DID NOT DRIVE, OWN, OR CONTROL THE FRONT-END LOADER DRIVEN BY HOWARD

HOEKSTRA, BREACHED NO DUTY TO LAVERGNE

COLEMAN,  AND IS ENTITLED TO

SUMMARY JUDGMENT

                                                                             

2.

THE CITY OF CHICAGO IS IMMUNE FROM LIABILITY UNDER

745 ILCS 3-108(b) OF THE TORT IMMUNITY ACT AND IS

ENTITLED TO SUMMARY JUDGMENT

 

I.

BACKGROUND AND PROCEEDINGS TO DATE

                                                                                   

            On Friday, January 15, 1999, at 3:30 a.m., LAVERGNE COLEMAN owned and was a passenger in a 1996 Toyota automobile. Her car was driven by ROBERT BELL.  On January 15, 1999, at 3:30 a.m., while LAVERGNE COLEMAN was a passenger, ROBERT BELL was involved in a collision with HOWARD HOEKSTRA.  The accident occurred at the intersection of Elm and LaSalle Street in Chicago, Illinois.  HOWARD HOEKSTRA drove a Caterpillar 950 front-end loader owned by A & J CARTAGE, INC.  HOWARD HOEKSTRA was A & J CARTAGE, INC.’S employee.  As a result of the collision between LAVERGNE COLEMAN’S Toyota and HOWARD HOEKSTRA’S front-end loader, LAVERGNE COLEMAN claimed injuries.   

            Following  the January 15, 1999 accident, on November 19, 1999, LAVERGNE COLEMAN filed a one count complaint against HOWARD HOEKSTRA, A & J CARTAGE, INC., GNA TRUCKING, CITY OF CHICAGO, and ROBERT BELL (see Exhibit “1”). 

            Pars. 3 through 5 (a-e) of Plaintiff’s complaint allege:

 

3.                    That  at all times relevant, HOWARD HOEKSTRA was acting within the scope of his employment and acting as the agent, servant, and/or employee of GNA TRUCKING and CITY OF CHICAGO, and as a result, each is vicariously liable for Defendant, HOEKSTRA’s, actions.

 

4.                    That on said  date and at said  location the Defendants, HOWARD HOEKSTRA,  A& J CARTAGE, GNA TRUCKING, CITY OF CHICAGO, and ROBERT BELL, each owed the Plaintiff the duty to maintain and/or operate their vehicles with ordinary and reasonable care so as not to injure Plaintiff, LAVERGNE COLEMAN.

 

 

5.                    That  on said date and at said location, the Defendants, HOWARD HOEKSTRA, A & J CARTAGE, GNA TRUCKING, CITY OF CHICAGO, and ROBERT BELL, and each of them, breached said duty by committing one or more of the following acts or omissions:

               

 

    a.             Carelessly and negligently drove said vehicle at a greater rate of speed than was reasonable and proper for the conditions and circumstances of said roadway, contrary to and in violation of Chapter 95 ½, Section 11-601, of the Illinois Revised Statutes;

 

    b.             Carelessly and negligently failed to equip and provide said vehicle with adequate and proper brakes to stop or hold the movement of said vehicle, contrary to and in violation of Chapter 95 ½, Section 12-301, of the Illinois Revised Statutes;

 

    c.             Carelessly and negligently failed to keep said vehicle under sufficient and proper control;

 

    d.             Carelessly and negligently failed to keep a proper lookout for other vehicles upon said roadway; and

 

e.                    Were otherwise careless and negligent.

 

            HOWARD HOEKSTRA and A & J CARTAGE, INC. answered the Plaintiff’s complaint and  filed affirmative defenses and a contribution cross-claim against ROBERT BELL  (see Exhibit “2”).  GNA TRUCKING answered the complaint (see Exhibit “3”).  The CITY OF CHICAGO answered the Plaintiff’s complaint and filed additional affirmative defenses (see Exhibit “4”).  ROBERT BELL answered the complaint (see Exhibit “5”).  Plaintiff answered A & J CARTAGE, INC.’S and HOWARD HOEKSTRA’S affirmative defenses (see Exhibit “6”).  ROBERT BELL filed a contribution cross-claim against HOWARD HOEKSTRA and A & J CARTAGE, INC. (see Exhibit “7”). HOWARD HOEKSTRA and A & J CARTAGE, INC. answered ROBERT BELL’S contribution cross-claim (see Exhibit “8”).  ROBERT BELL answered A & J CARTAGE, INC.’S and HOWARD HOEKSTRA’S contribution cross-claim (see Exhibit “9”).             

II.

STATEMENT OF FACTS

 

            In January, 1999, following a large snow fall, the CITY OF CHICAGO (hereafter “CITY”)  contacted John Cannatello of GNA TRUCKING, INC. (hereafter “GNA”) requesting GNA provide a front-end  loader to remove snow from CITY streets (see Exhibit “10”, affidavit of John Cannatello).  GNA is a private trucking company that leased equipment to the CITY.  GNA signed a Heavy Machinery and Equipment Rental Contract with the CITY in effect on January 15, 1999  (Exhibit “10,” affidavit of John Cannatello).  Pursuant to Phase IV Snow Removal, the CITY needed a front-end loader to clear snow.  In Phase IV operations, the CITY hires private contractors to assist in snow removal from CITY streets (see Exhibit “11,” discovery deposition of CITY OF CHICAGO Streets and Sanitation general superintendent, Glen Bibbo, ps. 10, 11, 48-50); (see Exhibit “12,” discovery deposition of CITY OF CHICAGO Streets and Sanitation refuse collection coordinator, John Pognant, ps. 32-34).

            Upon receipt of the CITY’s telephone call, GNA did not have the front-end loader requested by the CITY (Exhibit “10,” affidavit of John Cannatello).  Instead, GNA spoke with either James Jalovic, the owner of A & J CARTAGE, INC., and/or  HOWARD HOEKSTRA,  an employee  of  A & J CARTAGE, INC., asking if A & J CARTAGE, INC. wanted the work.  (id.)  A & J CARTAGE, INC. was a trucking company that hauled waste and did snow removal.  HOWARD HOEKSTRA was a manager and driver for A & J CARTAGE, INC.  A & J CARTAGE, INC. had a front-end loader necessary to assist in CITY snow removal (see Exhibit “13,” discovery deposition of HOWARD HOEKSTRA, ps. 10-15, 52; Exhibit “14,” discovery deposition at James Jalovic, ps. 6-7; Exhibit “10”, affidavit of John Cannatello).

            A & J CARTAGE, INC. agreed to do the snow removal work (Exhibit “14” ps. 12-13).  HOWARD HOEKSTRA picked up the front-end loader (see Exhibit “13,” discovery deposition of HOWARD HOEKSTRA, p. 13).   The front-end loader was a Caterpillar 950B wheeled loader owned by A & J CARTAGE, INC. (see Exhibit “13,” discovery deposition of HOWARD HOEKSTRA, ps. 8, 13; Exhibit “2,” Par. 2; Exhibit “8,” Par. 2).  HOWARD HOEKSTRA then drove the wheeled loader downtown reporting to LaSalle and Ohio Street.  HOEKSTRA was told to remove snow from CITY curbs and parkways (see Exhibit “13,” discovery deposition of HOWARD HOEKSTRA, ps. 16-18).  At 3:30 a.m., while backing from a snow pile, HOWARD HOEKSTRA had a minor collision with ROBERT BELL who was driving LAVERGNE COLEMAN’S Toyota (see Exhibit “13,” discovery deposition of HOWARD HOEKSTRA, ps. 33-35).  On the date of the collision, HOWARD HOEKSTRA drove the front-end loader owned by A & J CARTAGE, and he was on the course of his employment with A & J CARTAGE, INC. (Exhibit “13,” discovery deposition of HOWARD HOEKSTRA, p. 8).  No one from GNA was at the scene, nor were there employees from GNA or the CITY driving the wheeled loader (see Exhibit “13,”discovery deposition of HOWARD HOEKSTRA,  ps. 47-50).  At no time was HOWARD HOEKSTRA a CITY employee, and A & J CARTAGE was hired by GNA, not the CITY.  Payment for the snow removal job came from GNA and not the CITY (id).  HOWARD HOEKSTRA identified the Phase IV Snow Removal, CITY OF CHICAGO, Department of Street and Sanitation, Daily Activity Hired Equipment reports, identifying his front-end loader (see Group Exhibit “13,” discovery deposition of HOWARD HOEKSTRA deposition, ps. 50, 51).  At the time he was backing his truck, no CITY employee told him where to drive. (id.) 

ARGUMENT

1.

ON JANUARY 15, 1999, GNA TRUCKING, INC. DID NOT DRIVE, OWN, OR CONTROL THE FRONT-END LOADER DRIVEN BY HOWARD

HOEKSTRA, BREACHED NO DUTY TO LAVERGNE

COLEMAN,  AND IS ENTITLED TO

SUMMARY JUDGMENT

            In order to hold GNA responsible for the accident between HOWARD HOEKSTRA and ROBERT BELL, the Plaintiff must establish GNA owed a duty to LAVERGNE COLEMAN and breached the duty owed to LAVERGNE COLEMAN.  Similarly, it must be established GNA’S actions or inactions were a proximate cause of the accident between HOWARD HOEKSTRA and ROBERT BELL and LAVERGNE COLEMAN’S alleged injuries.

            Plaintiff alleges in her complaint HOWARD HOEKSTRA was the agent or employee of GNA and the CITY (Exhibit “1,” Par. 2).  GNA received a request from the CITY for a front-end loader (Exhibit “10”, affidavit of John Cannatello).  GNA did not have a front-end loader. (id.)   The assignment was accepted instead by A & J CARTAGE, INC. (Exhibit “13,” discovery deposition of HOWARD HOEKSTRA, ps. 10-15, 52).  A & J CARTAGE, INC. was to provide equipment/labor to facilitate snow removal (Exhibit “13,” discovery deposition of HOWARD HOEKSTRA, p. 10).  HOWARD HOEKSTRA was told to report to LaSalle and Ohio Street (Exhibit “13,” discovery deposition of HOWARD HOEKSTRA, p. 14).  HOWARD HOEKSTRA  arrived at 7:00 p.m. on January 14, 1999 (Exhibit “13,” discovery deposition of HOWARD HOEKSTRA, p. 15).  HOWARD HOEKSTRA was told by the Department of Streets and Sanitation to clear snow. 

            GNA is a separate corporation from A & J CARTAGE, INC. (Exhibit “10”, affidavit of John Cannatello).  On the loss date, the front-end loader driven by HOWARD HOEKSTRA was owned by A & J CARTAGE, INC.  HOWARD HOEKSTRA was a skilled operator of construction equipment (Exhibit “14,” deposition of James Jalovic, p. 12; Exhibit “13,” discovery deposition of HOWARD HOEKSTRA, ps. 58, 59).  No one from GNA was at Elm and LaSalle Street when HOWARD HOEKSTRA had the accident with ROBERT BELL  (Exhibit “13,” discovery deposition of HOWARD HOEKSTRA, ps. 42, 47).  GNA did not control how HOWARD HOEKSTRA was to clear snow (Exhibit “10,” affidavit of John Cannatello; Exhibit “13” discovery deposition of HOWARD HOEKSTRA, p. 48).  HOWARD HOEKSTRA’S plowing activities were left up to HOWARD HOEKSTRA (Exhibit “13,” discovery deposition of HOWARD HOEKSTRA, ps. 58-59).  Neither A & J CARTAGE, INC. nor HOWARD HOEKSTRA were employees of GNA.  A & J CARTAGE, INC. provided the tools, equipment, and maintenance of the front-end loader at the loss site.  Tax withholding on HOWARD HOEKSTRA’S paycheck came through A & J CARTAGE, INC. and not GNA (Exhibit “13,” discovery deposition of HOWARD HOEKSTRA, p. 50).   Neither HOWARD HOEKSTRA or A & J CARTAGE, INC. were CITY employees.  A & J CARTAGE, INC.’S assignment was designated as part of the CITY  heavy equipment rental agreement, lasting three days (see Group Exhibit “3,” hired equipment report; Exhibit “13,” discovery deposition of HOWARD HOEKSTRA, p. 51).  There were no GNA emblems on the truck, and HOWARD HOEKSTRA was not using GNA or CITY tools (Exhibit “13,” discovery deposition of HOWARD HOEKSTRA, ps. 47, 48).  No one from GNA told HOWARD HOEKSTRA where to plow, how to plow, or how to drive A & J CARTAGE, INC.’S front-end loader.  This was left up to the discretion of HOWARD HOEKSTRA (Exhibit “13,” discovery deposition of HOWARD HOEKSTRA, p. 48, Exhibit “10”, affidavit of John Cannatello).  No one from GNA had anything to do with the minor collision between HOWARD HOEKSTRA and ROBERT BELL. 

            It is incumbent upon LAVERGNE COLEMAN to factually establish GNA was responsible for the accident between ROBERT BELL and HOWARD HOEKSTRA.  The Plaintiff has not factually established that GNA exercised control over the way HOWARD HOEKSTRA drove A & J CARTAGE, INC.’S front-end loader or that GNA had any involvement with the accident between ROBERT BELL and HOWARD HOEKSTRA.  The Plaintiff has not established any causal connection between GNA and the accident occurring between HOWARD HOEKSTRA and ROBERT BELL. 

            WHEREFORE, as there is no triable issue of fact sustaining the allegations within Plaintiff’s complaint against GNA, GNA respectfully requests this Honorable Court enter a summary judgment in favor of GNA TRUCKING, INC. 

ARGUMENT

2.

THE CITY OF CHICAGO IS IMMUNE FROM LIABILITY UNDER

745 ILCS 3-108(b) OF THE TORT IMMUNITY ACT AND IS

ENTITLED TO SUMMARY JUDGMENT

 

            Pars. 3 through 5 (a-e) of Plaintiff’s complaint allege various Defendants, including the CITY, were negligent in equipping and driving the A & J CARTAGE, INC. front-end loader (Exhibit “1”).  The front-end loader driven by HOWARD HOEKSTRA was not owned, equipped, or driven by the CITY (Exhibit “13,” discovery deposition of HOWARD HOEKSTRA, ps. 50-52).  The CITY did not hire HOWARD HOEKSTRA or A & J CARTAGE, INC (Exhibit “13,” discovery deposition of HOWARD HOEKSTRA, p. 48).  The A & J CARTAGE, INC. front-end loader did not bear CITY placards (id).  The CITY did not provide tools, equipment, or perform maintenance on A & J CARTAGE, INC.’S front-end loader (Exhibit “13,” discovery deposition of HOWARD HOEKSTRA, ps. 47-51).  The CITY did not have an equipment lease agreement with A & J CARTAGE, INC.  By all accounts, HOWARD HOEKSTRA was a capable and professional heavy equipment operator operating as an independent contractor (Exhibit “11,” discovery deposition of CITY OF CHICAGO Streets and Sanitation general superintendent, Glen Bibbo; Exhibit “12” deposition of John Pognant; (Exhibit “13,” discovery deposition of HOWARD HOEKSTRA, p.13; Exhibit “14,” discovery deposition at James Jalovic, p. 12).[1]

            Considering these facts, Plaintiff’s complaint allegations against the CITY amount to charges the CITY failed to supervise HOWARD HOEKSTRA’S snow removal activities at LaSalle and Elm Street.  However, under 745 ILCS 10/3-108, the CITY is immune from liability for failure to supervise any activity on public property, including snow removal.

            745 ILCS 10/3-108 states:

 

(a) Except as otherwise provided in this Act, neither a local public entity nor a public employee who undertakes to supervise an activity on or the use of any public property is liable for an injury unless the local public entity or public employee is guilty of willful and wanton conduct in its supervision proximately causing such injury.

 

 (b) Except as otherwise provided in this Act, neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property unless the employee or the local public entity has a duty to provide supervision imposed by common law, statute, ordinance, code or regulation and the local public entity or public employee is guilty of willful and wanton conduct in its failure to provide supervision proximately causing such injury.”

 

            In Barnes v. Chicago Housing Authority, 326 Ill.App.3d 710, 761 N.E.2d 283, (1st Dist., 2002), John Barnes visited his family at a CHA LeClaire Courts housing complex.  LeClaire Courts Resident Management Corporation (LCRMC) managed the public housing complex.  While on the LeClaire premises the Barnes were assaulted by gang members.   The Barnes sued LCRMC and the CHA.  Among other allegations, Plaintiff alleged CHA improperly supervised LCRMC.  The CHA moved to dismiss under 735 ILCS 2-619 asserting immunity under Sections 2-104, 2-201, 3-108 and 4-102 of the Tort Immunity Act. 745 ILCS 10/2-104, 2-201, 3-108 and 4-102.  In affirming the dismissal of Plaintiff’s third amended complaint, the court examined the CHA’s claimed immunity under 745 ILCS 10/3-108 and found the CHA was immune from allegations of negligence and willful and wanton  misconduct for failure to supervise LCRMC.  Here, as in Barnes, the relationship between the CITY and A & J CARTAGE was supervisory.  The CITY was not driving A & J CARTAGE, INC.’S front-end loader, only supervising snow removal operations. See also: In re Chicago Flood Litigation, 176 Ill.2d 179, 680 N.E.2d 271, 272 (Ill., 1997) [finding that the City of Chicago enjoyed section 3-108(a) immunity from liability for alleged failure to supervise a contractor hired to replace wooden pilings along the Chicago River].[2]

            The opinion of Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 687 N.E.2d 1042, 1045-1048 (Ill., 1997) also holds 745 ILCS 10/3-108(a) immunity protects the CITY from liability for injuries caused by failure to supervise any activity on public property.  In Epstein v. Chicago Board of Education (id.), LeRoy Epstein sued the Chicago Board of Education and a contractor to recover Structural Work Act Damages.  The complaint alleged the Board was in charge of Plaintiff’s construction work.  The Board moved to dismiss arguing 745 ILCS 10/3-108(a) Tort Immunity precluded Plaintiff’s action, as Plaintiff’s allegations amounted to charges the Board failed to supervise construction activities.  In affirming the Appellate Court’s judgment the Supreme Court wrote:

“Section 3-108(a) by its plain terms immunizes a local governmental unit's failure to supervise “an activity” on public property. This language clearly applies to the failure to supervise any “activity” on public property, as it does not limit, in any manner, the types of activities which are included.”  Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 687 N.E.2d 1042, 1045 (Ill., 1997).

 

Here, any actions taken by the CITY in its alleged failure to supervise HOWARD HOEKSTRA and A & J CARTAGE, INC. were purely supervisory.  Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 687 N.E.2d 1042, 1045-1048 (Ill., 1997); Gusich v. Metropolitan Pier and Exposition, 326 Ill. App. 3d 1030, 762 N.E.2d 34, 36 (1st Dist., 2001).  A review of the pleadings, depositions, and other matters before this  Court shows the CITY’S only role for the January 15, 1999 snow removal was supervisory.  745 ILCS 10/3-108(a) provides immunity to any injuries sustained by LAVERGNE COLEMAN  out of the CITY’S failure to supervise or monitor HOWARD HOEKSTRA’S snow plow activities.

            WHEREFORE, as there is no triable issue of fact sustaining the allegations of Plaintiff’s complaint against the Defendant, CITY OF CHICAGO, and Defendant respectfully requests this Honorable Court enter a summary judgment in its favor and against the Plaintiff.    

                       

           

                                   

Lowell D. Snorf, III                                                                              Respectfully Submitted,

LAW OFFICES OF LOWELL D. SNORF, III

77 West Washington Street

Suite 703

Chicago, IL  60602                                                                                                                   

Telephone: (312) 726-8961                                                                  Lowell D. Snorf, III

ATT #71148


[1]

Accordingly, the CITY is further not responsible for the acts of non employees/independent contractors under 745 ILCS 10/1-202  (Exhibit “11,”  discovery deposition of CITY OF CHICAGO Streets and Sanitation general superintendent, Glen Bibbo, ps. 47-50; Exhibit “12,” discovery deposition of CITY OF CHICAGO Streets and Sanitation refuse collection coordinator, John Pognant, ps. 32-34; Exhibit “13,” HOWARD HOEKSTRA deposition, p. 59; Exhibit “14,” discovery deposition at James Jalovic,  p.12).

[2]As stated in Spangenberg v. Verner, 321 Ill. App 3d 429, 747 N.E2d 359, 361 (5th Dist., 2001); the word “supervise” under 745 ILCS 10/3-108(a) includes coordination, direction, over-sight, implementation, management, superintendence and regulation 745 ILCS 1-/3-108(a).  See also: Gusich v. Metropolitan Pier and Exposition, 326 Ill. App. 3d 1030, 762 N.E.2d 34, 36 (1st Dist., 2001) [holding: Metropolitan Pier and Exposition Authority’s overseeing contractor’s cleaning and inspecting of loading dock entitled Metropolitan Pier and Exposition Authority immunity under 745 ILCS 10/3-108].