case presents a truly fascinating legal issue and one that has not been explored by case law up until this point in time now we have a situation here where the trial just wound below and then anthony in all those cases it kind of followed the line and all those cases and put in the little box and it's been ruled that the city either has no duty or is a new this case is entirely different from any of those and that's what i want to stress more than anything else this is not a case it's like those other cases which involve the failure to act or a failure on the part of the to do its job this is a case where a worker went out a building inspector went out and took affirmative acts jaan is authority i did not go to housing court it's not what you think you're supposed to do went out to a construct to a site where court was in the process of being built where the handbills were off and at that point you know laterally without authority stop construction and maintenance worker was up there they were in the process of cutting the he did not have a court he did not have all rights you know and that is it's testified to in the record that the building inspectors would frequently go out and do that they would tell people you have to stop work but they knew they had no authority to do it just the cash four to do it and that what they did made the situation worse and on top of it we have a situation where other city inspectors were on don't come back and at that point in time after mr rosen threatened with  situation there and they are responsible for those permit of acts that create a danger you know this is not a situation where it's a failure to provide services that's what the that's what the public duty rules about you know that is what you know situation where the police don't get the situation time hard time doesn't get to a situation in time they can't be helped by a bill for failure to provide service because he didn't get there in time we don't have that situation here we have a situation where it's specter gets out there and he actually makes the situation worse now if he had gone out there there'd be no white bill going to slightly cases underwear  aren't they weren't they actually being conscientious and performing their jobs that's right judge without respect i think with the way out there i don't think they were being consciously maybe going out there to be conscientious but what they did once they got there was the furthest thing from conscientious they didn't they didn't follow up properly maybe they didn't want to maybe they just want to shortcut it and wanted to come in and decide can i want to put on a conservation here i don't want to go down housing court i'm just going to do what i think is best and when they're doing that they're not following your authority they're responsible for those actions in the city as they're my way or when the time other than the one inspector w them to stop work and the next inspector how much time it can be too long or i think i'm not exactly sure but i think it's a proxy a month give or take a little bit time enough to get a  in the duty that you know you have a general duty of you care to avoid harming other individuals and that's that's true from the discipline employees as well in the sense that officers getting harassed it's the same thing here this is an affirmative  that comes up as the public duty role as an exception to the public duty if you do have a failure and this is not a failure but if you do have a failure you can still slash passive inaction in this case with a special duty we said the cali case there's either two ways you can recover and this is this is mixing all across the board i apologize  if the plaintiff's injuries are caused by record well this has you know it was became much ifs or serious injuries was never really able to develop that and she's never asked that but we have a testimony the dangerous condition and i'm using the term initiated there so we don't need that because we have to follow the facts we played well for a while but for the duty purposes steps off of there this is not this is not the second part that their move from under to five sas is inadequate or negligent inspections the legislature specifically you know and i understand understand exactly what john are saying and i think that if they want to give blanket immunity to building inspectors they could have said something simple like in the execution of their duties like you do with the police provisions it's not you know like in executing their duties it's a much broader like with some of the immunity statutes it's not that here it's specifically inadequate or negligence faction in the you know that mary case that's the youth center case talked a little bit about that those differences there when the when indication that it's not an absolute provision what we have here is a provision that specifically only applies to the failure absolute or negligent or inadequate inspection and this was not one of those it's such an you know i'm arguing that they should be ready conjunction now maybe i maybe i missed phrased it earlier but what i'm saying is if you read them together it's not the two are true by itself creates a willful want exception and gives us something that we don't care when i'm not saying but we have a cause of action just to go to is there that's not what i'm saying what i'm saying is once you get by to day one of five   i'm doing it as two different hurdles we have to go in where what they did is they couldn't get they went in there and said hey listen you don't have to have to one of five or two or seven we got to go to two rove comes up and he flushes all this out he gives us the affirmative bass the tape the city ordering us the threats of jail all this that changes this from me where situation is something totally different into visuals a duty to protect them against an inspector's alleged willful and wanton conduct and that is that there is no distinction in where that's based upon affirmative acts or  failure to act and in fact that idea of affirmative action versus failure to act has been rejected by priests which just pretty much labels it semantics and by a visit which is a miss has a duty there was no special duty to her and she was not within the city's control at the time of the accident she and also the city was not uniquely aware of the danger posed by a stairway that had he gets attacked by somebody else and even in that situation there was no special duty has either to the argument is that the city engaged in a voluntary undertaking by issuing a stop work order and the placement of caution tape that the only proceedings in housing court proceedings in which the inspectors have noted i'm trying to the court's attention are you saying that the inspector did have the authority to stop work oh as to the authorities let me make a few points about that first of all this particular agent this particular inspector had authority even if we concede he didn't this particular person didn't the testimony of the defendant is the city the city has authority the testimony is that in the following days two other inspectors came out to the property and basically approved of the stop work order and that's what the testimony on the record is about as well if that that inspectors from the division that the first inspector came from don't have authority to issue a stop work order but they can go back to the office teller supervisors and then the proper people can come out and do it and the other point you're saying that's what happened here yes we are th to issue a stop work order and force it and we certainly think that's what happened here we don't know about particular individuals and their particular thirty we do know there's no question that the city can issue a stop or order as part of enforcement of the housing code that the city comes out and they stop work but they don't say you can't put up any other caution devices that's up to the private property owner is the private property owner who has created the situation here is the private property o handrails were already down the property owner could have and should have been the first instance gone out and got the permit he did it the responsibility for what happens here lies with the property owners who are supposed to be complying with the law not with the city of chicago who comes out and says stop what you're doing you're not complying with the law and to the extent we order off and take up that doesn't make anything worse than a situation without  came in and said you know i have a building permit state of illinois stop working and they did so and then the scuffling sub subsequently fell on someone's head isn't that an affirmative action that he said he would have taken which resulted in the hazard to one of the citizens and within the city be responsible for that the city would not be responsible because the city is not responsible for the fact that someone has  which inspected the have the authority to do in the first place you've already said that they had they didn't have the authority to stop the work but it stopped work at a point where there was no porch really and then someone got hurt the city has the authority to stop the work they inspected the but the city does and the city came out with two other people and the city is the defendants and the fact of the matter is miss has was not injured for two months until two months later the property owner could have was supposed to have gone out and gotten a permit to resume work and that didn't happen in a city hal chicago which frowns upon the idea that you can use semantics to make this a for these types of arguments of affirmative versus failure to enforce action to get around the scope of immunity is now two one zero five and they are absolute immunity there are other cases like brasher which hold that the determination of whether something is a hazard this is part of the inspection process and that's what happened here what happened here was part of the instruction process and two one of five and two to us having our squarely a political on the other points that the snakes there is more specific communities have an over more general meaning these and this is a more specific response mentioned to you at all at all it's totally an immunity decision and the portion that cites where does so with approval but does say to those cases in which we are applying us and we would argue that where does not apply to this case the conduct at issue and where we were talking about like the you know the failure to to catch certain violations the wrongful approval of certain blueprints things of that nature nothing that had to do with going out and of the nature we talk about here with respect to the well for one thing we have the testimony of mr price who is the former head of the city inspector and he testified on equivocally no authority to stop issue to issue stop work orders and they have it created taking out wearing the yellow and affirmative action it's not well i don't think i certainly think that if i were here i'd be in the power to use you know i would be much happier to have the case be have front of us because that's there we have a lot more from live action there you know the approval of a blueprint that would certainly could fall into the negligent aspect of it were the an adequate aspect of it and not just simply a failure but with all the actions we have here that qualifies as well for  i think one of the interesting cases is that anthony case and it's not interesting it's easy to be too one and that's not interesting because of the counts that were pursued but by one count that wasn't pursued and in that case you had you know history  where the cases say i would say that if you know if i found a case more analogous or so struck point i certainly would soldier on is about that being said i didn't find any saying the other way you know if i would've found a case saying hey there's this private public distinction we would need to be here why waste all our time and it's just not there and i think that it's easier in the case of a landowner when the city's a landowner actually doing things to see the duty clearer and more outright but this is this is like more similar to the the police officer who runs into another car or a city worker who sues out and accidentally runs into a pedestrian we have affirmative access that creates the create the injury