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Property repair found to be discretionary

Chicago Daily Law Bulletin January 29, 2014

By Colin H. Dunn

Premise Liability Lawyer, Colin H. Dunn – Aviation Accident Attorney

Dunn is an partner at Clifford Law Offices who concentrates in personal injury and aviation law and handles complex and mass tort litigation.

A public entity is liable in tort to the same extent as a private party unless one of the various immunity provisions in the Local Governmental and Governmental Employees Tort Immunity Act says otherwise. Trtanj v. City of Granite City, 379 Ill.App.3d 795, 802–03 (2008).

So, like any landowner, municipalities have a duty to keep and maintain their property in a reasonably safe condition. 745 ILCS 10/3–102(a) (West 2010).

But that duty is a bit narrower for your city than it is for your neighbor. For instance, Section 3-102(b) says a local public entity does not have constructive notice of an injury-causing condition if it operates a reasonably adequate inspection system. Sylvester v. Chicago Park Dist., 179 Ill. 2d 500, 504 (1997).

Municipalities also have immunity for injuries caused by negligent but discretionary decisions. 745 ILCS 10/2-201 (West 2010) ("[e]xcept as otherwise provided by statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused").

How that discretionary immunity affects cases that implicate a municipality's duty to keep its property in reasonably safe condition is somewhat unsettled.

The Illinois Supreme Court has repeatedly found that whether a municipality engages in a program of public improvement is a discretionary matter, but the manner in which the municipality implements the program is not. See Snyder v. Curran Township, 167 Ill.2d 466, 474–75 (1995), and Baran v. City of Chicago Heights, 43 Ill.2d 177, 180–81 (1969); see also In re Chicago Flood Litigation, 176 Ill.2d 179, 194 (1997), and Greene v. City of Chicago, 73 Ill.2d 100, 108 (1978).

Some courts have read these cases as indicating that discretionary immunity should not extend to a municipality's actions when carrying out a program of maintenance and repair. See e.g., Trtanj, 379 Ill. App. 3d at 806; Gutstein v. City of Evanston, 402 Ill. App. 3d 610, 627 (2010).

These courts have rejected a reading of Section 2-201 that would essentially "grant discretionary immunity to every act performed by a public employee"; otherwise, "[e]very failure to maintain property could be described as an exercise of discretion." See Gutstein, 402 Ill. App. 3d at 627.

So the decision over whether, when or how to repair a defect pursuant to the municipality's repair policy has been characterized as a "ministerial," as opposed to a "discretionary," act. See Hanley v. City of Chicago, 343 Ill. App. 3d 49, 56-57 (2003) (recognizing that to maintain property is to keep it in a state of repair and a repair is generally considered a ministerial act for which a defendant may be liable if negligently performed); see also Morrissey v. City of Chicago, 334 Ill.App.3d 251, 256 (2002); Kennell v. Clayton Township, 239 Ill.App.3d 634, 639 (1992).

Recently, the 2nd District Appellate Court departed from those cases. See Richter v. Coll. of Du Page, 2013 IL App (2d) 130095. The plaintiff, Blanche Richter, sued the College of DuPage after falling on an uneven sidewalk.

There was evidence that the college knew of the defect and had taken steps to remedy it by putting cones around the area and painting the defect yellow; the plaintiff challenged how the college dealt with the defect. The college argued its handling of the sidewalk deviation was a discretionary act under Section 2–201.

Rejecting the plaintiff's argument that the college's duty to keep sidewalks in a reasonably safe condition is a ministerial function rather than a discretionary function, the 2nd District found that the college was immune under Section 2–201.

The college had no written policy as to how sidewalk deviations were to be remedied. Instead, the foreman of the college's buildings and grounds department had "unfettered" discretion to decide how to handle it. His (unwritten) policy was to place cones as soon as the college found out about a deviation and paint it yellow so that people could see it during the winter.

Then, in the spring, when the college could repair the sidewalks, he would exercise discretion as to whether to fix them, how to fix them and when to fix them. This, according to the court, qualified as a "policy determination" under Section 2–201.

The court found it important that there was no law dictating if/when/how the sidewalk should be fixed. Richter, 2013 IL App (2d) 130095, ¶ 46 ("The case at bar stands in contrast to cases in which mandatory compliance with certain regulations or statutes rendered the acts ministerial. Whereas [the college foreman] possessed absolute discretion to resolve each sidewalk issue, cases in which the public entity was not entitled to discretionary immunity lacked that type of employee discretion").

Because the college foreman had "engaged in both the determination of policy and the exercise of discretion in handling this sidewalk deviation," the court found the college was protected by discretionary immunity under Section 2–201.

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