Appellate Court Rules No Issue of Material Fact Regarding Municipality’s Immunity from LiabilityAuthor: Kristin G. Good
Recently, the 4th District Appellate Court, in Monson v. City of Danville, 2017 Il App (4th) 160593, upheld a trial court’s granting of summary judgment, finding that no issue of material fact existed, regarding whether a local government employee was immune from liability against negligence and willful and wanton conduct claims filed by a pedestrian who tripped and fell on a concrete sidewalk. The Court held that under the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/2-109 and 2-201, the government employee, and therefore the municipality, was immune from liability because the employee engaged in a discretionary act, executing policy regarding improving sidewalk conditions and enhancing the downtown area, when he decided not to repair the portion of the sidewalk on which the pedestrian tripped and fell. Discretionary acts “are those which are unique to the particular public office and involve the exercise of judgment.” Ministerial acts “are those . . . performed in a prescribed manner, in obedience to the mandate of legal authority, without regard to the exercise of discretion as to the propriety of the acts being done.” Citing Kennel v. Clayton Township, 239 Ill. App. 3d 634 (4th Dist. 1992).
The Court further stated that whether the municipality had notice of the deviation was not the relevant issue, and noted that even if the government official had inspected the defect and decided to do nothing, he would still be immune from liability because he would have engaged in a discretionary function (even if the official’s determination could later be determined to be negligent). This ruling is consistent with a 2nd District case, Richter v. College of DuPage, where that court found that no issue of material fact existed where a government employee, and thus the municipality, was immune from liability because the employee’s actions in determining which sidewalk repairs to make were discretionary functions and policy determinations, and not ministerial functions. Richter v. College of DuPage, 2013 IL App (2d) 130095.