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  • Writer's pictureSteve Judge


This month’s column discusses the recent Third District Appellate Court order in Gantzert and Homerding v. Mazon Township Road District, 2021 IL App (3d) 200469*, ruling that the trial court erred when it dismissed Plaintiffs’ complaint by finding Plaintiffs’ claims barred under Section 2- 201 Discretionary Immunity of the Tort Immunity Act.


Defendant’s Reliance upon the Pleasant Hill Cemetery Association v. Morefield Case


This was a case that we previously discussed last year. In Pleasant Hill Cemetery Association v. Morefield, 2013 IL App (4th) 120645,  the Court ruled the Arrowsmith Township Highway Commissioner was fully protected from liability by Section 2-201 Discretionary Immunity where the Highway Commissioner, in his discretion in his unique position as Highway Commissioner, deepened the 3200 East Road drainage ditch and installed three new larger culverts instead of one old culvert to prevent water from running over the roadway and shoulders and washing them out, endangering the traveling public.


The Arrowsmith Highway Commissioner submitted his affidavit in support of his motion to dismiss showing that he made a policy decision to: (1) deepen the 3200 East Road drainage ditch; and (2) exercised his discretion or best judgment in carrying out his policy decisions.


The Pleasant Hill Cemetery Association, owner of land adjacent to 3200 East Road, and a tenant farmer of the Association, sued the Highway Commissioner claiming his improvements to 3200 East Road caused flooding of their land.


The Appellate Court affirmed the trial court’s dismissal of the Complaint based upon Section 2-201 discretionary or judgment call immunity, reasoning as follows:


Plaintiffs seem to be arguing that the Tort Immunity Act

immunizes public employees only insomuch as they make lawful

choices. The trouble with that argument is that it makes the Tort

Immunity Act pointless. A tort is, by definition, contrary to law –

it is a civil wrong, a breach of a legal duty, for which the law

affords a remedy tort liability, the Tort Immunity Act necessarily immunizes the public employee from liability for choosing the "unlawful way,'

provided that the public employee's conduct is not willful and wanton.


Recognizing that if a public employee makes a bad call in exercising his discretion or best

judgment, § 2-201 discretionary immunity protects him, the Appellate Court reasoned referring

to the Act:


Section 2-201 (745 ILCS 10/2-201 (West 2010)), for example,

specifically immunizes an abuse of discretion. The statute says:

'Except 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.'. . . It follows that, if a

public employee has abused his or her discretion, the public

employee necessarily has breached the reasonable-person standard of tort law.


Third District Appellate Court in Gantzert Found the Pleasant Hill Case Did

Not Apply Due to Two Primary Questions of Fact


1)  Whether the Road Commissioner Exercised Discretionary Immunity for Certain Drainage Ditch Work


The Appellate Court held that the Road Commissioner’s affidavit established that the Road Commissioner exercised discretionary immunity as to replacing the culvert in 2010. However, the Appellate Court found that there was a question of fact as to whether the Road Commissioner exercised discretionary immunity as to drainage ditch work performed in 2013.


Under the 2-619 motion to dismiss standard the Appellate Court stated:


“The affirmative matter asserted by a defendant must be apparent on the face of the complaint; otherwise, the motion must be supported by affidavits or certain other evidentiary materials.” Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997); Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993).


“The facts necessary to sustain defendants’ immunity defense are not apparent on the face of the complaint, nor were they supported by affidavit or other evidentiary materials of record.”


2) Whether Motor Fuel Tax Funds Were Used


If Motor Fuel Tax Funds were used to perform the drainage ditch work the Road Commissioner was required to comply with IDOT and MFT regulations, submitting the proposed project to IDOT for review. No record was established showing that the Road Commissioner took such action, and no record was established that the Road Commissioner did not use Motor Fuel Tax Funds to perform the drainage ditch work.


The Appellate Court stated that:


 “Although Pleasant Hill is factually similar, that decision never considered whether defendant’s conduct violated IDOT regulations and the use of MFT funds. It is legally distinguishable on this basis.”


Clarifying the Three Proofs Necessary for Discretionary Immunity


1)         No law, statute, code, rule or regulation mandates exactly how to perform a certain act – If a statute, code, rule or regulation does apply, such as IDOT and MFT regulations, the Road Commissioner should maintain a clear record of compliance or a clear record that MFT Funds were not used.


2)         Actions must involve a policy decision, balancing competing interests and making a judgment-call as to what will best serve the competing interests – In this instance the Road commissioner determined that it was a matter of public safety that the water be directed under the road rather that flowing over the top and washing out the shoulders, creating a hazardous condition.


3)         No legal mandate exists to perform duties in a prescribed manner and is a judgment-call by the individual performing the action – Road Commissioner should maintain a clear record of the exercise of discretion as to all aspects of the work, not just a particular portion of the work at a particular time.

Caselaw Going Forward


The Appellate Court will continue to analyze and further distinguish cases that Townships rely upon for dismissals in the early stages of litigation. It is important to maintain clear records of decisions made by Township employees, particularly when discretionary immunity under 2-201 is utilized, to avoid potential questions of fact.




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