by Maureen Anichini Lemon (Winter 2018)

The City of Danville’s effort to avoid a trial over the failure to repair a sidewalk defect fell flat in a recent decision by the Illinois Supreme Court in Monson v. City of Danville, 2018 IL 122486 (2018). The plaintiff, Barbara Monson, tripped and fell forward onto a sidewalk while walking from a shop to her car in the downtown business district of Danville, Illinois, in December 2012.  Monson sustained multiple injuries to her face, mouth, foot, shoulder, and arm.

According to Monson, the sidewalk was broken, sunken and uneven; the City failed to repair the sidewalk; and the City failed to warn pedestrians of the dangerous conditions on the sidewalk. Monson sued the City, alleging negligence, and willful and wanton conduct. She relied on Section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (“Act”), which requires a local public entity to maintain its property in a reasonably safe condition so that peoples using ordinary care are not harmed while using the property (745 ILCS 10/3-102 (a)).

The City filed a motion for summary judgment on the grounds that the City was immune from liability under Sections 2-109 and 2-201 of the Act. Section 2-109 of the Act immunizes a local public entity from liability for an injury resulting from an act or omission of an employee when the employee is not liable (745 ILCS 10/2-109). Section 2-201 immunizes a public employee serving in a position involving the determination of policy or the exercise of discretion from liability for an injury resulting from the employee’s act or omission in determining policy when the employee is acting in the exercise of such discretion (745 ILCS 10/2-201).

The trial court granted the City’s motion, and the appellate court affirmed that ruling. Monson appealed the case to the Illinois Supreme Court. The court reversed the lower court’s ruling and remanded the case back to the trial court for further proceedings. The court acknowledged that a negligence claim based on a municipality’s violation of the duty to maintain its property may be subject to discretionary immunity under Section 2-201 of the Act; however, whether the claim is subject to Section 2-201’s immunity protection depends on the facts of the case. The court did not believe that it had enough facts before it to rule in the City’s favor.

A municipal entity claiming immunity must prove its employee held a position involving the determination of policy or a position involving the exercise of discretion. The act or omission giving rise to the injuries must be both a determination of policy and an exercise of discretion. Discretionary decisions involve personal deliberation and judgment in deciding whether to perform a particular act, or how and in what manner that act should be performed.

According to the court, the burden to present sufficient evidence that the alleged acts or omissions were a conscious decision not to perform the repair and a determination of policy rested with the public entity claiming immunity. Here, the City of Danville failed to meet that burden.

The depositions of two City officials show that the City completed a project to repair downtown-area sidewalks between the fall of 2011 and the spring of 2012. One of the city officials walked through the identified areas of concern and marked certain sidewalks with highlighter paint. The second city official, Ahrens, conducted a separate walk-through and, after conferring with other City officials, made the final decision about which sections of sidewalk would be repaired or replaced. Ahrens testified that his decisions were made on a case-by-case basis, considering the condition of the concrete; the height between slabs of sidewalk; the normal path of pedestrian travel; the area’s intended use; proximity to buildings, light poles, and trees; and the available time and cost. No policy addressed these factors or dictated the decision regarding sidewalk repairs.

Ahrens signed an affidavit averring that, to the best of his knowledge and memory, the portions of sidewalk where Monson fell were either not prioritized to be replaced or such replacement could not fit within the allowable time and budget for the project. He used his discretion not to replace the portion of sidewalk in question. Aherns had no emails or documents relating to those sidewalk slabs.

The court refused to apply discretionary immunity to this case without actual evidence that the site was included in the overall evaluation of city sidewalks, that an assessment of the actual site was made, and that the City took specific factors into account in deciding not to repair that sidewalk. Otherwise, nearly every failure to maintain public property could be described as an exercise of discretion. The court remanded the case back to the trial court to determine if the City was aware of the sidewalk defect or whether it was simply overlooked. If the City assessed the actual site, the court would want to consider which factors were considered by the City in deciding not to repair the sidewalk.

The court distinguished the Monson case from the facts in another case involving a sidewalk defect, Richter v. College of DuPage, 2013 IL App (2d) 130095. In Richter, a student filed a lawsuit after being injured on an uneven sidewalk. The record showed that the College of DuPage buildings and grounds department manager had unfettered discretion over sidewalk deviations. The College policy included a three-level response to sidewalk deviations: (1) place orange cones to alert people to the deviation, (2) apply yellow paint, and (3) physically altering the sidewalk. The manager’s own policy was to ‘wait and see’ and make a per-case judgment call depending on the height, timing, and location of the defect. Prior to the plaintiff’s accident, the manager became aware of the uneven sidewalk. He placed orange cones and applied yellow paint to the site. The cones and paint were present when the plaintiff tripped and fell. The manager waited until after the final thaw of the year to physically repair the sidewalk.

The court concluded that the manager’s handling of the sidewalk deviation constituted a proper exercise of discretion and a determination of policy within the meaning of Section 2-201 of the Act. For these reasons, the College was absolutely immune from liability pursuant to Sections 2-109 and 2-201 of the Act.

The City of Danville still has an opportunity to prevail in this matter on remand. In addition to considering the discretionary immunity defense, the court directed the trial court to consider whether (1) the sidewalk defect was de minimis, whereby a reasonably prudent person would not foresee some danger to persons walking on it; and (2) the sidewalk defect was open and obvious.

In a lengthy concurrence opinion, Justice Thomas did not believe that Section 2-201’s general discretionary immunity should apply to a violation of Section 3-102 of the Act. He was concerned that Section 3-102’s duty to exercise ordinary care to maintain public property in a reasonably safe condition could be obliterated as follows: a municipal official could simply inspect and list everything that is defective and dangerous about the public property, and implement a “policy decision” not to repair the defect or danger.

Justice Thomas found the Richter decision distinguishable because the College manager affirmatively took measures to protect against the sidewalk defect with orange cones and yellow paint. Justice Thomas questioned the validity of the Richter decision if it was construed as holding that a public entity may have discretionary immunity where the public entity takes no reasonable action to repair or otherwise remedy an unsafe condition in a reasonable period of time. To the extent that this was the majority’s interpretation of Richter, Justice Thomas asserted that it was wrongly decided and should be overturned.

It is always best practice for a public entity to take reasonable action to repair a defect or danger on public property. While cost, time, or other constraints may make such action impractical; municipal decision-makers should document their evaluation of a defect, including the factors considered in deciding whether to repair a known defect. Under the Monson ruling, Sections 2-201 and 2-109 could protect the municipal decision-maker and, by extension, the municipality, from liability for what amounts to a policy decision based on such a discretionary analysis. If you have questions regarding the protections of the Act, please contact one of the Ottosen Britz attorneys.