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Understanding Discretionary Decisions and the Tort Immunity Act in Gravel Patch Repair Work

Writer's picture: Steve JudgeSteve Judge

This featured column discusses the Third District Appellate Court decision in Page v. Village of Coal City, 2022 IL App (3d) 190320-U, affirming the circuit court’s ruling granting summary judgment in favor of the Village of Coal City arising from a motorcycle accident on a 4-foot by 42-foot patch of gravel on the roadway.


Plaintiff was traveling southbound on her motorcycle when she approached a section of the roadway with allegedly loose gravel present. Plaintiff alleged that due to the level change from the adjacent roadway to the loose gravel, she lost control and was thrown from her motorcycle. Plaintiff claimed that defendant was negligent for the following reasons:


  1. removing a significant patch of the roadway;

  2. carelessly and negligently planning and designing North 5th Avenue at or near East 3rd Street;

  3. permitting a 4-foot by 42-foot section of the roadway to remain unpaved; and

  4. failing to repair or replace the missing pavement that had been replaced by gravel. Id.


Defendant denied plaintiff’s allegations and filed the following affirmative defenses claiming comparative negligence and alleging that plaintiff:


  1. failed to watch where she was driving;

  2. failed to use the paved section of the lane, which comprised more than half of the lane;

  3. failed to keep a safe and proper lookout;

  4. failed to observe a condition that was open and obvious or could reasonably be expected to be discovered by plaintiff;

  5. failed to use protective riding gear, including a helmet; and

  6. operated her motorcycle while impaired and under the influence of opiates.

 

THE DECISION TO PERFORM ROADWAY REPAIRS WAS A DISCRETIONARY DECISION BY THE DIRECTOR OF PUBLIC WORKS


Under 745 ILCS 10/ 2-109, “[a] local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable.” 745 ILCS 10/ 2-109 (West 2004). Additionally, Section 2-201 of the Tort Immunity Act provides, “[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.” 745 ILCS 10/2-201 (West 2016). Sections 2-109 and 2-201 of the Tort Immunity Act together shield a municipality from liability for discretionary acts or omission by its employees. Andrews, 2019 IL 124283, ¶ 26. Discretionary immunity for public officials stems from the idea that public officials should be allowed to exercise their judgment in making decisions without fear that a good-faith mistake might subject them to liability.


A public entity is entitled to immunity for discretionary acts of employees when they involve the determination of policy or the exercise of discretion and the employee engaged in both the determination of policy and the exercise of discretion when performing the act. Discretionary acts involve e the exercise of personal deliberation and judgment in deciding how and in what way the act should be carried out.


On the other hand, ministerial acts are performed in a prescribed manner and the negligent performance of ministerial acts is not protected under the Tort Immunity Act. Monson v. City of Danville, 2018 IL 122486, ¶ 30. Ministerial acts must be carried out in a reasonably safe and skillful manner. In re Chicago Flood Litigation, 176 Ill. 2d 179, 194 (1997).


The Director of Public Works exercised discretion in determining the portion of roadway to be excavated and filled with gravel for eventual paving.  Page, 2022 IL App (3d) 190320-U. All paving was performed by an outside contractor annually. This was a conscious decision by the Director of Public Works as it was the most cost-efficient to have all paving performed at once, on an annual basis. The Director made the conscious decision to leave the 4-foot by 42-foot portion of the roadway prepared with gravel for eventual paving as opposed to leaving it in its original state of disrepair due to water damage. The Director testified that the area in question had “alligatored” and was lifting, creating a hazard.


The Appellate Court cited the Andrews and Doyle cases in its opinion. See Andrews, ¶ 34 (“a municipal defendant asserting immunity under section 2-201 must present evidence of a ‘conscious decision’ by its employee pertaining to the conduct alleged to have caused the plaintiff's injuries”). Additionally, since defendant’s determination involved the availability of funds and resources of the public entity, it further demonstrates that defendant engaged in a policy determination. See Doyle, 2018 IL App (1st) 170357, ¶ 45 (“deciding how best to spend limited resources is a policy determination”). Page, 2022 IL App (3d) 190320-U.


PLAINTIFF ARGUED THAT THE PUBLIC WORKS DEPARTMENT’S ROADCREW PERFORMED MINISTERIAL RATHER THAN DISCRETIONARY ACTS


While the Director of Public Works clearly exercised discretion in determining the scope of the work to be performed on particular portions of the roadway, Plaintiff argued that the roadcrew adhered to a “set process” in preparing the area for paving. According to Plaintiff, such work was ministerial rather than discretionary. The Appellate Court agreed that no evidence was presented indicating that the roadcrew exercised discretion in excavating, graveling and compacting the gravel. Such evidence is defendant’s burden to prove discretionary immunity. See Van Meter, 207 Ill. 2d at 370 (2003); cf. Wrobel v. City of Chicago, 318 Ill. App. 3d 390, 396 (2000) (finding the acts complained of by plaintiff were not ministerial where workers had discretion in determining how much asphalt and moisture to remove from the pothole and the amount removed was left to “the personal judgment of the workers”).


However, the Appellate Court did not find it necessary to determine whether the work was discretionary or ministerial, as there was no evidence that the work had failed to be completed in a “reasonably safe and skillful manner”. Id. The photographs taken days after the incident did not depict any evidence that the gravel area was below street grade, and Plaintiff did not provide any testimony as to the events leading up to her accident. Plaintiff failed to testify as to where she was looking at the time of the accident, and the sole witness testified that she was not sure what caused Plaintiff to crash. The Director of Public Works testified that that the gravel was compacted to be just as hard as the surrounding pavement and was not loose gravel. There was no testimony indicating that the area was not reasonably safe at the time of the accident, and unsupported conclusions or speculation is insufficient to create an issue of material fact.


Accordingly, defendant was entitled to summary judgment pursuant to discretionary immunity under 2-109 and 2-201 of the Tort Immunity Act. The Appellate Court affirmed the judgment of the circuit court.

 

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