Robinson v. Wash. Twp., Corp.
| Decision Date | 29 August 2012 |
| Docket Number | No. 3–11–0177.,3–11–0177. |
| Citation | 976 N.E.2d 610,364 Ill.Dec. 332,2012 IL App (3d) 110177 |
| Parties | Ricky ROBINSON, Jr., a Minor, by Beverly Bourne, His Mother and Next Friend, Plaintiff–Appellant, v. WASHINGTON TOWNSHIP, a Municipal Corporation, Defendant–Appellee (Angela Mancha and Frank Martinez, Plaintiffs). |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
David N. Baum, Kristy M. Gonowon (argued), Gonsky, Baum & Whittaker, Ltd., Chicago, for appellant.
Troy A. Lundquist (argued), Anastasia L. Hess, Langhenry, Gillen & Lundquiest, LLC, Joliet, for appellee.
[364 Ill.Dec. 333]¶ 1 Plaintiff, Ricky Robinson, Jr., a minor, appeals from an order of the circuit court dismissing his complaint against defendant, Washington Township, a municipal corporation, for injuries he sustained when the automobile in which he was riding hit a pothole and crashed. The trial court found defendant immune from liability pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1–101 et seq. (West 2008)). On appeal, plaintiff argues that the court erred in granting defendant's motion to dismiss because defendant had a duty to repair the roadway in a reasonably safe manner once it began the work. We reverse and remand for further proceedings.
¶ 2 On April 23, 2008, Ricky was a passenger in a motor vehicle driven by his father, Ricky Robinson, Sr. As Robinson Sr. was driving southward on Stony Island Road in Washington Township, he hit a pothole, ran over road construction debris and lost control of the vehicle. The car rolled over and landed on its roof. Ricky sustained blunt head trauma and a puncture wound to his back.
¶ 3 Ricky's mother filed suit on his behalf, claiming that the township had a duty to exercise ordinary care and caution while completing the roadway repairs. The township moved to dismiss, arguing that it was immune from liability under sections 2–109 and 2–201 of the Tort Immunity Act because filing potholes was a discretionary function. See 745 ILCS 10/2–109, 2–201 (West 2008). The trial court agreed and granted the township's motion without prejudice.
¶ 4 In response, plaintiff filed an amended complaint, claiming that defendant's repair of the roadway amounted to careless and negligent conduct. The complaint alleged that the road bed had sand and dirt piled in humps and ruts, had potholes and debris, and had an uneven and undulating surface. Plaintiff claimed that defendant:
“(a) After having started repairs, failed to provide a road free of hazardous defects when the Defendant knew or should have known of the existence of the hazardous conditions of the road.
(b) After having started repairs, failed to maintain a road in a reasonably safe condition when the Defendant knew or should have known of the existence of the hazardous conditions of the road.
(c) After having started repairs, failed to properly inspect the road for hazardous defects when the Defendant knew or should have known of the existence of the hazardous conditions of the road.
(d) After having started repairs, failed to warn motorists by the use of properly located legible signs of the existence of uneven and undulating surface when the Defendant knew or should have known of the existence of the hazardous conditions of the road.
(e) After having started repairs, failed to warn motorists by the use of properly located legible signs of the existence of the potholes and pitted surface when the Defendant knew or should have known of the existence of the hazardous conditions of the road.
* * *
(h) After having started repairs, failed to provide and use suitable temporary covers over potholes, pits and uneven surfaces when the Defendant knew of should have known of the existence of the hazardous conditions of the road.
(i) After having started repairs, failed to finish the repair of the hazardous conditions of the road when the Defendant knew or should have known of the existence of the hazardous conditions of the road.”
¶ 5 The township again moved to dismiss. Following a hearing, the trial court found that the township's acts were discretionary and therefore immune from liability. The court granted the township's motion without prejudice. Plaintiff chose to stand on his complaint, and the trial court entered an order dismissing the cause in its entirety.
¶ 7 In reviewing a motion to dismiss, we accept as true all well-pled facts and all reasonable inferences that may be drawn from those facts and construe the allegations in the complaint in the light most favorable to the plaintiff. Marshall v. Burger King Corp., 222 Ill.2d 422, 305 Ill.Dec. 897, 856 N.E.2d 1048 (2006). Under a dismissal pursuant to section 2–615 or section 2–619 of the Code of Civil Procedure (735 ILCS 5/2–615, 2–619 (West 2008)), our standard of review is de novo. In re Application of the County Treasurer, 2012 IL App (1st) 101976, 359 Ill.Dec. 87, 966 N.E.2d 408.
¶ 8 Unless an immunity provision applies, municipalities and other local public entities are liable in tort to the same extent as private parties. Murray v. Chicago Youth Center, 224 Ill.2d 213, 309 Ill.Dec. 310, 864 N.E.2d 176 (2007). Sections 2–109 and 2–201 of the Tort Immunity Act grant immunity to public entities for discretionary functions. Section 2–109 states that “[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 2008). Section 2–201 further provides that “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 2008).
¶ 9 Section 2–201 immunizes liability for negligence and wilful and wanton misconduct and is to be strictly construed against the public entity seeking immunity. Hanley v. City of Chicago, 343 Ill.App.3d 49, 277 Ill.Dec. 140, 795 N.E.2d 808 (2003). Moreover, the burden is on the municipality to prove that it is entitled to immunity. Van Meter v. Darien Park District, 207 Ill.2d 359, 278 Ill.Dec. 555, 799 N.E.2d 273 (2003).
¶ 10 Under section 2–201, immunity applies if the township can demonstrate that the act of repairing the roadway was a determination of policy and an exercise of discretion, rather than ministerial. See Morrissey v. City of Chicago, 334 Ill.App.3d 251, 267 Ill.Dec. 587, 777 N.E.2d 390 (2002). Policy decisions are “ ‘those decisions which require the municipality to balance competing interests and to make a judgment call as to what solution will best serve each of those interests.’ ” Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill.2d 335, 342, 230 Ill.Dec. 11, 692 N.E.2d 1177 (1998) (quoting West v. Kirkham, 147 Ill.2d 1, 11, 167 Ill.Dec. 974, 588 N.E.2d 1104 (1992)). Discretionary acts involve the exercise of personal judgment in deciding whether to perform a certain act or in what manner the act should be conducted. Wrobel v. City of Chicago, 318 Ill.App.3d 390, 252 Ill.Dec. 151, 742 N.E.2d 401 (2000). In contrast, ministerial acts “are those which a person performs on a given state of facts in a prescribed manner, in obedience to the mandate of legal authority, and without reference to the official's discretion as to the propriety of the act.” Snyder v. Curran Township, 167 Ill.2d 466, 474, 212 Ill.Dec. 643, 657 N.E.2d 988 (1995).
¶ 11 A public entity or municipal corporation exercises discretion when it selects and adopts a plan in the making of public improvements. Greene v. City of Chicago, 73 Ill.2d 100, 22 Ill.Dec. 507, 382 N.E.2d 1205 (1978). However, once the public entity is carrying out the plan, it acts ministerially and is “bound to see that the work is done in a reasonably safe and skillful manner.” (Internal quotation marks omitted.) Greene, 73 Ill.2d at 108, 22 Ill.Dec. 507, 382 N.E.2d 1205; see also In re Chicago Flood Litigation, 176 Ill.2d 179, 194, 223 Ill.Dec. 532, 680 N.E.2d 265 (1997) (). A municipality's act of repair is generally considered a ministerial act for which it may be liable if negligently performed. See Gutstein v. City of Evanston, 402 Ill.App.3d 610, 341 Ill.Dec. 26, 929 N.E.2d 680 (2010); Hanley, 343 Ill.App.3d at 56–57, 277 Ill.Dec. 140, 795 N.E.2d 808.
¶ 12 Plaintiff argues that defendant is not immune from liability under the Tort Immunity Act because the activities of repairing the roadway were ministerial in nature and the township had a duty to perform them in a reasonably safe manner. We agree. Plaintiff's complaint alleges that, after the township began repairing the roadway, the township failed to provide a road free of hazards and to maintain the road in a reasonably safe condition. Once a municipality makes the discretionary decision to begin repairing a roadway, the acts of filing holes and removing debris are ministerial. See Greene, 73 Ill.2d at 108, 22 Ill.Dec. 507, 382 N.E.2d 1205;Morrissey, 334 Ill.App.3d at 256, 267 Ill.Dec. 587, 777 N.E.2d 390. Discretionary immunity does not extend to the township's implementation of its plan of maintenance and repair. The township was required to complete the repairs in a reasonably safe manner, and the Tort Immunity Act does not immunize it from liability.
¶ 13 Furthermore, when the legislature passed the Tort Immunity Act, it codified the common law duty to exercise ordinary care to maintain property under section 3–102(a). 745 ILCS 10/3–102(a) (West 2008). It also imposed liability for the use of property that is not reasonably safe in section 3–103(a). 745 ILCS 10/3–103(a) (West 2008). These statutory exceptions to immunity reinforce our conclusion that making repairs are ministerial, not discretionary, acts.
¶ 14...
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