March FIRST DIVISION

10, 2003

									mMarch 10, 2003

No. 1-02-0546

PAMELA O'CONNOR,					)	Appeal from the

								)	Circuit Court of

	Plaintiff-Appellant,					)	Cook County.

								)	

v.								)	

								)	

THE COUNTY OF COOK, a Municipal Corporation,	)	The Honorable

								)	David R. Donnersberger,

	Defendant-Appellee.					)	Judge Presiding.

	JUSTICE GORDON delivered the opinion of the court:

	Plaintiff-appellant Pamela O'Connor (plaintiff) appeals from the trial court's orders granting summary judgment to defendant-appellee County of Cook (defendant) and denying her

motion to reconsider.  Plaintiff asks that we reverse and vacate these orders, and remand for

further proceedings on the merits of her cause.  For the following reasons, we affirm.

BACKGROUND

	The following facts are taken from depositions included in the record on appeal.  On

March 8, 1999, plaintiff, who is a Chicago police officer, arrived at the criminal court building at

26th Street and California Avenue in Chicago where she was scheduled to testify in a court case. 

She parked her car on the top floor of the parking garage located across the street from the court

building.  As she approached the elevator enclosure to exit the garage, she climbed over a mound

of snow that had been plowed and piled near the door to the enclosure.  In so doing, she slipped

and fell.  Plaintiff broke her ankle and was taken to the hospital, where she eventually underwent two surgeries.

	Plaintiff filed a complaint at law against the City of Chicago, the City of Chicago Building

Commission and defendant, alleging that all three entities were negligent in failing to maintain the

parking garage in a reasonably safe condition.  The City of Chicago and the City of Chicago

Building Commission filed separate motions to dismiss under section 2-619 of the Code of Civil

Procedure (735 ILCS 5/2-619 (West 1998)) (Code), both asserting that they did not own,

maintain or control the parking garage.  By agreed order, the court granted the City of Chicago's

motion, and plaintiff voluntarily dismissed the City of Chicago Building Commission from this

action.  The case against defendant continued, and in its amended answer to plaintiff's complaint,

defendant admitted that it owns and operates the parking garage.

	In his deposition, Lawrence Wozniak testified that he is the head building custodian of the

criminal court building and that he is employed by the Cook County sheriff (Sheriff).  He averred

that his responsibilities include the supervision of snow removal by his custodial staff from the

entire court "complex."  He described the complex as encompassing the court building, the nearby

administrative building, the parking lots and the parking garage across the street.  Corroborating

this was the deposition testimony of Joseph Martin and Floyd Crumpton, members of the

custodial staff.  Martin testified that he is employed by the Sheriff's office under Wozniak, his

supervisor.  Martin described that his responsibilities as a custodian include snow removal, and

that he is the head of the crew of custodians responsible for this task.  Martin stated that while his

crew removes snow from the criminal court building, the parking lot and the first floor of the

parking garage across the street, he is one of two custodians in charge of driving the snow plow

truck which removes snow from the top floor of the parking garage.  Crumpton testified that he too is employed by the Sheriff's office.  He averred that he is the other custodian in charge of

driving the snow plow.  Crumpton testified that as an employee of the Sheriff's office, he is

responsible for plowing the "complex" at the criminal court building, which he described as

including the top floor of the parking garage across the street.

	Defendant filed a motion for summary judgment pursuant to section 2-1005 of the Code

(735 ILCS 5/2-1005) (West 1998)), contending in part that it was not the proper defendant in this

cause of action because, although it owns the parking garage, snow removal is the responsibility

of the Sheriff and defendant is not responsible for the actions of the Sheriff's employees.  On

September 6, 2001, the trial court issued its memorandum and order granting defendant's motion. 

The court compared section 3-6017 of the Counties Code (55 ILCS 5/3-6017 (West 1998)),

which charges the Sheriff with the "custody and care of the courthouse and jail," to section 5-

1106 (55 ILCS 5/5-1106 (West 1998)), which charges defendant with keeping "in repair, a

suitable courthouse, jail and other necessary county buildings," and determined that snow removal

constitutes "custody and care."  Relying on People ex rel. Walsh v. Board of Commissioners of Cook County, 397 Ill. 293 (1947), and Moy v. County of Cook, 244 Ill. App. 3d 1034 (1993), the court concluded that snow removal "does not fall within the scope" of defendant's responsibilities

but, rather, those of the Sheriff, and accordingly, defendant was not a proper party to this cause of

action.  

	Plaintiff filed a motion to reconsider the court's order granting summary judgment in favor

of defendant.  The trial court denied this motion on February 6, 2002.    

ANALYSIS

	Plaintiff seeks the reversal and vacation of both the trial court's order granting summary judgment in favor of defendant and its order denying her motion to reconsider.  We review her

contentions as to each order separately, beginning with the grant of summary judgment.

	Defendant filed its motion for summary judgment pursuant to section 2-1005 of the Code. 

Under that section, summary judgment is to be granted "without delay if the pleadings,

depositions, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law."  735 ILCS 5/2-1005 (West 2000); accord Morris v. Margulis, 197 Ill. 2d 28, 35 (2001); see also In re Estate of Hoover, 155 Ill. 2d 402, 410-11 (1993) (court is to construe the pleadings, affidavits, depositions and admissions strictly against moving party and liberally in

favor of opponent of summary judgment motion).  While summary judgment has been called a

"drastic measure," it is an appropriate tool to employ in the expeditious disposition of a lawsuit in

which " 'the right of the moving party is clear and free from doubt.' "  Morris, 197 Ill. 2d at 35, quoting Purtill v. Hess, 111 Ill. 2d 229, 240 (1986).  We review the grant of summary judgment under a de novo standard.  See Morris, 197 Ill. 2d at 35.  We also note for purposes of this appeal that this cause involves statutory construction and interpretation.  These are questions of law and,

just as the grant of summary judgment, are subject to de novo review on appeal.  See Choi v. Industrial Comm'n, 182 Ill. 2d 387, 392 (1998).  

	The arguments presented on appeal by both parties bring into contention two statutory

provisions pertaining to the maintenance of the county courthouse and jail, namely, section 3-

6017 dealing with duties of the Sheriff and section 5-1106 dealing with the duties of the county. 

We include the text of these provisions here at the outset.  Section 3-6017 states:

			"Sheriff custodian of courthouse and jail.  He or she shall have the custody  		and care of the courthouse and jail of his or her county, except as otherwise 

		provided."  55 ILCS 5/3-6017 (West 1998).

Section 5-1106 states, in relevant part:

			"County offices, equipment and expenditures.  It shall be the duty of the 

		county board of each county: 

			*** To erect *** and keep in repair, a suitable court house, jail and other 

		necessary county buildings."  55 ILCS 5/5-1106 (West 1998).

Plaintiff contends that the trial court erred in granting summary judgment to defendant because

under the provisions of section 5-1106, defendant county is the proper party to her cause of

action.  Plaintiff argues that, based on a comparison of the plain language of these statutory

sections, it is clear that the Sheriff's custodial duties do not extend to the parking garage where

she was injured.  Plaintiff asserts that it is defendant that is responsible for maintaining the garage

based on the language of section 5-1106 and its admission in its answer to her complaint that it

owns and operates the garage.  Thus, plaintiff concludes that she appropriately named defendant

as the proper party in her cause.  We disagree and find that the trial court's grant of summary

judgment was proper.

	Under Walsh, upon which the trial court relied, it is clear that the Sheriff, and not defendant county, would have exclusive custodial control over the courthouse and jail premises. 

In Walsh, the sheriff sought to prevent the county board from usurping his power to select and appoint a janitorial staff to care for and perform services in those areas "in and about the county

courthouse and the county criminal court building," "such as engineers' services, operating

elevators, sweeping floors, washing windows, and other similar janitorial duties."  Walsh, 397 Ill. at 294.  In deciding who bore responsibility for the care of these areas and the performance of

these duties, our supreme court conducted a historical review of case law and statutes to compare

the powers and duties of the sheriff and the county.  The court reflected that it had long been established that the sheriff is charged with those custodial duties affecting the county courthouse

and jail.  See Walsh, 397 Ill. at 296-97.  These duties had been part of the sheriff's powers assigned to him at common law and codified by early statute using the same words now used in

section 3-6017.  See Walsh, 397 Ill. at 296-97 (referring to section 14 of "An Act to revise the law in relation to sheriffs" (Ill. Rev. Stat. 1945, ch. 125, par. 14), which tracks the same language

of current section 3-6017).  From this, the Walsh court concluded that custodial duties affecting the courthouse were the exclusive province of the sheriff, including the power to hire a janitorial

staff to assist him in these duties.  See Walsh, 397 Ill. at 300.  

	This conclusion is further supported by the Walsh court's references to Dahnke v. People, 168 Ill. 102 (1897), and Hardin v. County of Sangamon, 71 Ill. App. 103 (1896).  The Walsh court noted that Dahnke and Hardin resolved any apparent conflict in those statutes that were the precursors to sections 3-6017 and 5-1106, as both those cases held that any such conflict between the authority of the county and that of the sheriff to exercise custodial power over the courthouse

and grounds was to be resolved in favor of the sheriff.  See Dahnke, 168 Ill. at 111-12, 114 (" '[a]s real estate, the county board controls the title, and keeps the building and its furniture in

repair.  As a court house, the sheriff *** guards and cares for it' "); Hardin, 71 Ill. App. at 114, quoting Dahnke v. People, 57 Ill. App. 619, 626 (1895) (the custodial powers of the county flow only from its ownership rights over the property, but those of the sheriff to care for the property

arise from his inherent powers at common law and his traditional role " 'as the attendant upon the court and as the court's executive officer' "; this view "harmonizes the two provisions *** giving

to the county and to the sheriff, respectively, the care and custody of this property, and allows

each its due effect"); accord County of McDonough v. Thomas, 84 Ill. App. 408, 412 (1899) (sheriff has the power and duty to care for the buildings and grounds, and "there is nothing ***

showing a legislative intent to curtail the common law powers of the sheriff as custodian of the

court house and jail").    

	Plaintiff, however, contends that Walsh limits the sheriff's custodial authority to those county buildings involved in that case, namely, the county courthouse and the criminal court

building which are specifically designated in section 3-6017, but does not extend to any parking

facility that exists as a separate structure.  See Walsh, 397 Ill. at 304.  Contrary to plaintiff's interpretation of Walsh, that case reflects a broader and more extensive scope of custodial control to be exercised by the sheriff, encompassing not only the courthouse and jail, but also the grounds

surrounding and belonging to these physical buildings.  For example, the Walsh court specifically described the sheriff's "janitorial duties" as the performance of services "in and about the county courthouse and the county criminal court building," thus indicating that the surrounding grounds

of those buildings are encompassed under the scope of the sheriff's custodial duties.  (Emphasis

added.)  Walsh, 397 Ill. at 294.  Also indicative of that court's broader interpretation of the scope of the sheriff's custodial duties is its reliance on County of McDonough, which affirmed the exclusive power of the sheriff to employ someone to perform the "usual duties of a janitor *** for

the court house and grounds," including "to keep said court house properly cleaned, attend to the

heating plant, keep the lawn mowed, [and] ice and snow cleaned from the walks."  County of McDonough, 84 Ill. App. at 409; see also Moy v. County of Cook, 244 Ill. App. 3d 1034, 1038- 39 (1993).    

	Based on the foregoing, it is clear to us that, contrary to plaintiff's contention here, the Sheriff's custodial duties involve more than simply the bricks and mortar of the county courthouse

itself.  Rather, they extend to a duty of custodial care over those areas "in and about" the

courthouse, including its "grounds," which would also encompass structures that subserve the

needs of the courthouse and jail.  See Walsh, 397 Ill. at 294; County of McDonough, 84 Ill. App. at 409.  This interpretation is consistent with the de facto responsibilities that were unquestionably assumed by the Sheriff's office in the instant case.  The record presented undisputed testimony

that the Sheriff assumed responsibility for the custody and care of the parking garage located

across the street from the criminal court building, which is the same complex encompassed in the

Walsh decision.  Wozniak, Martin and Crumpton each testified in their respective depositions that they are custodians employed by the Sheriff, not by defendant, and that they exercise their duties

under the authority of the Sheriff's office.  Likewise, each testified that one of their responsibilities

as custodians is the removal of snow from the top floor of the parking garage.  In addition, head-

custodian Wozniak and Crumpton testified that the Sheriff requires them to remove snow from

the entire court "complex," which they both specifically described as including not only the

courthouse and the jail, but also the nearby court administrative building, the parking lots and the

parking garage.

	Furthermore, there is undisputed testimony in the record that the internal staff of the

parking garage was comprised of employees of the Sheriff and not of defendant county, and that

the garage was maintained specifically for use in connection with the courthouse.  Crumpton

testified that the parking garage subserves the needs of those who have business with the court, including "different officers like State's Attorneys or public defender[s], and [their] drivers." 

Wozniak corroborated this.  Moreover, when posed with the question of what procedure is to be

followed were someone injured on the top floor of the parking garage or were a safety hazard to

exist there, Wozniak explained that such an incident is to be reported to the Sheriff's office. 

Wozniak further testified that he as head custodian employed by the Sheriff, rather than any

employee of defendant, would then assume control over the situation, including filing an incident

report and employing his staff to correct the problem.  Thus, the evidence in the record is

undisputed that it was the Sheriff exclusively who in fact exercised custodial responsibility over

the maintenance and care of this facility as part of the court complex.  This undisputed evidence is

fully consistent with and supportive of the interpretation that the Sheriff's custodial care of the

courthouse and jail as dictated in section 3-6017 includes its custodial care of the parking garage

as an appurtenance that serves the needs of those buildings and all who enter them.  

	Having found that custodial responsibility for snow removal from the parking garage

resides exclusively with the Sheriff, there is little question that defendant county will not thereby

bear any vicarious liability for the acts and omissions of the Sheriff and his staff.  See Moy, 244 Ill. App. 2d at 1038-39.  In Moy, the court held that because there is no employment relationship between the sheriff and the county since the sheriff is an elected official, the county could not be

held vicariously liable for the custodial duties of the sheriff even though the county owns the

property upon which the sheriff performs his custodial duties.  See Moy, 244 Ill. App. 3d at 1038- 39 (sheriff is independent official and as there is no agency relationship between county and

sheriff, county could not be held liable for custodial incident at county jail); accord Biggerstaff v. Moran, 284 Ill. App. 3d 196, 199 (1996) (county "has no authority to control the sheriff's office"); Wade v. County of Pike, 104 Ill. App. 2d 426, 429 (1969) ("custody and care" given to sheriff under section 3-6017 gives him custodial capacity, not the county).

	Plaintiff relies heavily on County of DeKalb v. Smith, 213 Ill. App. 3d 775 (1991), for the proposition that because defendant is not required under statute to provide a parking garage for

those using the courthouse and jail, the garage cannot be considered a necessary adjunct to the

courthouse and jail and, thus, the Sheriff's custodial duties cannot extend to the garage.  DeKalb, however, does not stand for this proposition and is distinguishable from the instant case.  DeKalb was a condemnation case in which the county sought to exercise its powers of eminent domain

over parcels of land owned by private citizens in order to build a parking lot for the county

courthouse complex, which included the courthouse, public safety building and administration

building.  The issue was whether the county had the authority to condemn the property under its

statutory powers, including section 5-1106.  See DeKalb, 213 Ill. App. 3d at 777.  The court held that the county did not have the power to condemn under the particular facts of that case because the taking of the property to construct a parking lot was not necessary.  However, contrary to

plaintiff's contention, the holding in DeKalb is inapplicable to the instant case.  

	The DeKalb court's determination as to whether the construction of a new parking lot for the courthouse was necessary was made in a condemnation context.  The court reviewed the

relationship between the county's powers under section 5-1106 (55 ILCS 5/5-1106 (West 1992))

to "erect *** and keep in repair[] a suitable court house, jail and other necessary county

buildings" and section 5-11005 (55 ILCS 5/5-1005 (West 1992)), which involved the county's

power to purchase and hold real estate.  The requirement of "necessary" in a condemnation

context under the language of section 5-1106 for a county to properly effect a taking, as presented in DeKalb, is not applicable to the Sheriff's custodial responsibilities under section 3- 6017.  In fact, section 3-6017, which controls these duties of the Sheriff, does not deploy the

word "necessary."  Rather, consistent with the reasoning used by our supreme court in Walsh, we are free to look to the general nature and interrelationship between the grounds and various

edifices maintained in the county courthouse and jail house complex to determine the context of

the Sheriff's custodial duties.  See Walsh, 397 Ill. at 294, 300; see also Dahnke, 168 Ill. at 114; Hardin, 71 Ill. App. at 114; County of McDonough, 84 Ill. App. at 409.  Where, as here, the parking garage is maintained as a facility to serve the needs of the courthouse and jail, it can be

properly viewed as an adjunct to those facilities, and, consequently, fully within the scope of the

Sheriff's custodial duties.  See Walsh, 397 Ill. at 294, 300; County of McDonough, 84 Ill. App. at 409.  In that respect, we note that even the court in DeKalb recognized parking facilities as part of the court complex which subserves the county courthouse.  See DeKalb, 213 Ill. App. 3d at 780 ("[w]e do not disagree that parking seems to be a reasonable adjunct to *** existing county

buildings").  Accordingly, we find that the trial court's initial grant of summary judgment in favor

of defendant was proper.    

	Finally, plaintiff contends that we should remand this matter to the trial court for the

procedural reason that the court erred by refusing to consider her tender of the opinion in DeKalb for the first time in her motion to reconsider.  Plaintiff contends that the trial court "applied an erroneous standard in evaluating" her motion when it stated that DeKalb was "not new case law and does not constitute a proper basis for reconsideration."    

	The purpose of a motion to reconsider is " 'to bring to the court's attention newly

discovered evidence ***, changes in the law or errors in the court's previous application of existing law.' "  Sacramento Crushing Corp. v. Correct/All Sewer, Inc., 318 Ill. App. 3d 571, 577 (2000), quoting Korogluyan v. Chicago Title & Trust Co., 213 Ill. App. 3d 622, 627 (1991).  We review the trial court's application of law to the facts presented before it on a de novo basis.  See Sacramento Crushing Corp., 318 Ill. App. 3d at 577; Korogluyan, 213 Ill. App. 3d at 627.  

	We find no error on the part of the trial court in denying plaintiff's motion to reconsider.  It is clear from the trial court's memorandum in support of its order that it did in fact review

plaintiff's arguments with respect to DeKalb, as it stated that it was considering the motion "on the merits."  In so doing, the court examined DeKalb and its application to the instant set of facts, and concluded that DeKalb simply does not assist plaintiff in her argument that defendant is responsible for the parking garage with respect to those custodial duties charged to the Sheriff

under statute.  Thus, contrary to plaintiff's assertion, the court did not deny her motion based on

its belief that her presentation of DeKalb was an improper basis for reconsideration.  Rather, it concluded that DeKalb did not apply to the instant case.  Moreover, any question concerning the trial court's willingness to consider the belated submission of the DeKalb case in plaintiff's motion for reconsideration would, in any event, be of no consequence based upon our conclusion that

DeKalb is distinguishable from the case at hand and would not change our result.  Therefore, we find no error here in the court's denial of her motion to reconsider its prior order granting

summary judgment to defendant.

CONCLUSION

	For the foregoing reasons, we affirm the judgment of the circuit court.

	Affirmed.

	McNulty and O'Malley, J.J., concur.