Illinois Supreme Court Signals Heightened Standard for Discretionary Immunity
By Mark J. Kimzey
The Illinois Supreme Court recently issued an opinion that reaffirmed long-standing precedent holding that claims for injuries caused by dangerous conditions on public property are subject to the “discretionary immunity” defense under Sections 2-109 and 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (the “Act”), 745 ILCS 10/2-109, 2-201. However, in reversing the lower courts’ award of summary judgment in favor of the defendant-public entity, the Court highlighted the fact-specific application of this defense and emphasized that the burden is on the public entity to present sufficient evidence to demonstrate that it is entitled to immunity. This opinion signals a heightened evidentiary standard required of public entities who seek discretionary immunity, and serves as an admonishment regarding the critical importance of maintaining written policies and documentation regarding the discretionary functions of their employees.
In Monson v. the City of Danville, 2018 IL 122486, the plaintiff alleged that she tripped and fell on an uneven seam in a sidewalk located in downtown Danville, Illinois, causing her to sustain a fractured shoulder and other injuries. Prior to the date of the alleged fall, the City had completed a project to repair some, but not all, of the defects in its downtown sidewalks. As part of this project, City officials conducted a walk-through inspection of the sidewalks and determined, on a case-by-case basis, which areas to repair. In doing so, they considered a number of factors, including: available time and money for the project, conditions of the concrete, height of variations between slabs, and pedestrians’ normal path of travel. However, the City did not maintain a written policy regarding sidewalk repairs or specified height differentials between slabs that necessitated repair. Moreover, the officials did not document their assessments of any specific defects. Ultimately, the defect on which the plaintiff tripped was not among those repaired.
The plaintiff subsequently filed suit, asserting that the City failed to maintain the sidewalk in a reasonably safe condition. The City moved for summary judgment, arguing that it was entitled to discretionary immunity under Sections 2-109 and 2-201 of the Act, because the officials had exercised discretion in determining which portions of the sidewalk to repair. The trial court granted the City’s motion, and the appellate court affirmed. The Supreme Court, however, reversed and remanded the case for trial. It held that the evidence presented by the City was not sufficient to establish immunity. While the City presented evidence that the slab was included in a general inspection of its sidewalks, it failed to offer any facts regarding the officials’ assessment of the particular defect at issue in this case. Without such evidence, the Court found it impossible to determine whether the officials had actually assessed the defect and exercised discretion in deciding not to repair it, or whether the City Officials simply overlooked the particular sidewalk defect. The Court, therefore, held that the City failed to meet its burden of proof for summary judgment, and that a question of fact remained for the jury as to whether the City’s handling of the defect constituted an exercise of discretion.
In so holding, the Court noted that the facts of the case were markedly different than another recent case involving a sidewalk defect, Richter v. College of Du Page, 2012 IL App. (2d) 130095. In that case, the defendant-public entity presented evidence of its policy for handling sidewalk defects, which involved three actions: (1) placing orange cones to alert individuals to the deviation; (2) applying yellow paint to the deviation; and (3) physically altering the sidewalk, if necessary. The College’s manager of buildings and grounds testified that he made a “per-case” decision, or judgment call, depending on the height, timing, and location of the deviation. With respect to the particular deviation at issue in that case, he testified to placing orange cones and applying yellow paint at the site of the deviation at issue, and planning to physically repair the sidewalk after the ground had thawed. The Appellate Court upheld the trial court’s grant of summary judgment in favor of the defendant-public entity, holding that the manager’s handling of the sidewalk deviation clearly constituted an exercise of discretion and a determination of policy within the meaning of Section 2-201.
What does the Supreme Court’s opinion mean for local public entities? While the Court reaffirmed the principle that public entities in Illinois are entitled to immunity for the discretionary acts of their employees—including those relating to the condition of public property—its opinion indicates that it may no longer be sufficient for a public entity to simply establish that there was a general policy or program to inspect property for dangerous conditions and that a specific defect in the property was included in this general policy or program but was not repaired. Instead, public entities may now be required to bear the burden of providing direct evidence that an official made a “conscious decision” with regard to the specific condition that caused an alleged injury. As such, public entities must be proactive in ensuring that they maintain written policies regarding the discretionary functions of their employees and document specific decisions its officials make pursuant to those policies in order to avail themselves of the discretionary immunity.
Should you have questions regarding this ruling and how it affect your organization, or should you require assistance in reviewing policies and procedures or documentation practices or any local government legal issue, please contact Michael A. Airdo at [email protected] or 312-506-4480, or Mark J. Kimzey at [email protected] or 312-506-4461.