Digitally signed by Reporter of Decisions Illinois Official Reports Reason: I attest to the accuracy and integrity of this document Supreme Court Date: 2019.02.04 10:48:22 -06'00'

Monson v. City of Danville, 2018 IL 122486 Caption in Supreme BARBARA MONSON, Appellant, v. THE CITY OF DANVILLE, Court: Appellee. Docket No. 122486 Filed August 2, 2018 Rehearing denied September 24, 2018 Decision Under Appeal from the Appellate Court for the Fourth District; heard in that Review court on appeal from the Circuit Court of Vermilion County, the Hon. Nancy S. Fahey, Judge, presiding. Judgment Reversed. Cause remanded with directions. Counsel on Miranda L. Soucie, of Spiros Law, P.C., of Danville, for appellant. Appeal Jennifer L. Turiello, of Peterson, Johnson & Murray-Chicago, LLC, and Scott D. McKenna and Scott B. Dolezal, of Best, Vanderlaan & Harrington, both of Chicago, for appellee. Stephen Blecha, of Coplan & Crane, Ltd., of Oak Park, for amicus curiae Illinois Trial Lawyers Association. Daniel G. Hasenstab, of Brown & James, P.C., of Belleville, for amicus curiae Illinois Association of Defense Trial Counsel. Gregory C. Ray, of Craig & Craig, LLC, of Mattoon, for amicus curiae Township Officials of Illinois Risk Management Association. Justices JUSTICE BURKE delivered the judgment of the court, with opinion. Chief Justice Karmeier and Justices Garman and Neville concurred in the judgment and opinion. Justice Thomas specially concurred, with opinion, joined by Justices Kilbride and Theis. Justices Thomas, Kilbride, and Theis dissented upon denial of rehearing, without opinion. OPINION ¶1 At issue in this appeal is whether sections 2-109 and 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/2-109, 2-201 (West 2012)), apply to a city’s failure to repair a sidewalk defect. The plaintiff in this case filed suit against the City of Danville (City) to recover for her injuries from tripping and falling on an uneven seam in a sidewalk. The City moved for summary judgment under sections 2-109 and 2-201 of the Act on the grounds that its employees exercised discretion in determining which portions of the sidewalk were in need of repair or replacement. The circuit court of Vermilion County granted the motion and entered summary judgment for the City. The appellate court affirmed. 2017 IL App (4th) 160593. For the reasons that follow, we reverse the lower courts’ judgments and remand the cause to the circuit court for further proceedings. ¶2 BACKGROUND ¶3 On the afternoon of December 7, 2012, plaintiff, Barbara Monson, was shopping in the downtown business district of Danville, Illinois. She parked her car on the street near the intersection of North and Vermilion Streets and walked to a nearby pawn shop. According to plaintiff’s deposition testimony, it had rained earlier in the day, causing approximately one inch of water to pool on low areas of the sidewalk. After visiting the pawn shop, plaintiff began walking back to her car. Plaintiff testified she felt her foot hit a piece of concrete, which caused her to trip and fall forward onto the sidewalk. She sustained multiple injuries as a result of her fall. ¶4 The record contains the deposition testimony of Shelly Larson, the superintendent of downtown services at the time of the incident, and Doug Ahrens, the director of the public works department. They testified that a project to inspect and repair sidewalks in the downtown area was begun in the fall of 2011 and completed in March 2012. Larson did an

122487

initial walk-through and identified areas of concern by marking them with highlighter paint. Ahrens conducted his own walk-through and, after conferring with Larson and other City employees, made the final decisions about which sections of sidewalk would be repaired, replaced, or removed altogether. ¶5 Ahrens testified he made the determinations on a case-by-case basis, considering the condition of the concrete; the height of the variations between slabs of sidewalk; the normal path of travel for pedestrians; the intended use of the area; proximity to buildings, light poles, and trees; and the available time and cost. There was no written policy addressing these factors, nor was there a policy that any deviation of a certain size, i.e., more than two inches, necessitated replacement. Ahrens testified he could not recall inspecting or measuring the particular slabs of concrete where plaintiff fell, nor did he recall making a decision not to repair those specific slabs. He stated, however, that the area would have fallen within the parameters of the project. When asked whether he considered that section of the sidewalk for potential repair, Ahrens stated, “I believe we did consider the slab of concrete because we looked at every slab of concrete.” ¶6 Ahrens also signed an affidavit averring, to the best of his knowledge and memory, that the portions of the sidewalk where plaintiff fell “were either not prioritized to be in need of replacement at that time or such replacement could not fit with the allowable time and budget for that project ***. Therefore, in or around the Fall of 2011, I used my discretion as Public Works Director not to replace that portion of the sidewalk.” ¶7 Plaintiff filed a complaint against the City alleging negligence and willful and wanton conduct. The complaint alleged the City breached its duty to maintain its premises in a reasonably safe condition by (i) failing to provide a safe means of ingress and egress on the sidewalk by allowing a portion thereof to become sunken, broken, worn, uneven, and/or unsafe; (ii) allowing an unreasonably dangerous condition to exist; (iii) allowing the sidewalk to remain in a dangerous condition despite having actual and/or constructive knowledge of the dangerous condition; (iv) failing to correct or repair the sidewalk; (v) permitting a portion of the sidewalk to become and remain in a dangerous condition, thereby presenting a hazard to those persons it reasonably anticipated would use the sidewalk; (vi) failing to adequately warn pedestrians of the dangerous condition; and (vii) failing to maintain its property in a reasonably safe condition. As a result of the City’s acts or omissions, plaintiff alleged she sustained serious and permanent injuries to her face, mouth, foot, shoulder, and arm. ¶8 The City filed a motion requesting summary judgment on the ground that it was immune from liability pursuant to sections 2-109 and 2-201 of the Act (745 ILCS 10/2-109, 2-201 (West 2012)). The City also argued plaintiff’s claim was not actionable because the alleged sidewalk defect was de minimis and the condition was open and obvious. The trial court granted the motion and entered summary judgment in favor of the City solely based on tort immunity. The court did not consider the City’s alternative arguments. ¶9 On appeal, plaintiff argued section 3-102(a) of the Act (id. § 3-102(a)), which codifies a municipality’s duty at common law to maintain its property in a reasonably safe condition, supersedes the discretionary immunity under section 2-201 of the Act. The appellate court rejected that argument and affirmed the trial court’s entry of summary judgment. 2017 IL App (4th) 160593, ¶ 35. The court held section 3-102(a) does not supersede the immunity in section

122488

2-201. Id. ¶ 30. The court further held the City adequately established its immunity from liability pursuant to sections 2-109 and 2-201 of the Act. Id. ¶¶ 30, 33. ¶ 10 This court allowed plaintiff’s petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Mar. 15, 2016). We allowed amicus curiae briefs to be filed by the Illinois Trial Lawyers Association, in support of plaintiff, and by the Illinois Association of Defense Trial Counsel and the Township Officials of Illinois Risk Management Association, in support of the City. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

¶ 11 ANALYSIS ¶ 12 On appeal of an order granting summary judgment, a reviewing court must determine whether “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2012). The purpose of summary judgment is not to try an issue of fact but to determine whether one exists. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). “A genuine issue of material fact precluding summary judgment exists where the material facts are disputed, or, if the material facts are undisputed, reasonable persons might draw different inferences from the undisputed facts.” Adames v. Sheahan, 233 Ill. 2d 276, 296 (2009). Although summary judgment is encouraged in order to aid the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation. Adams, 211 Ill. 2d at 43. Consequently, a court must construe the evidence in the record strictly against the movant and should grant summary judgment only if the movant’s right to a judgment is clear and free from doubt. Id. On appeal from an order granting summary judgment, a reviewing court must consider whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether summary judgment is proper as a matter of law. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17 (1993). We review the trial court’s summary judgment ruling de novo. Barnett v. Zion Park District, 171 Ill. 2d 378, 385 (1996).

¶ 13 I. Tort Immunity Act ¶ 14 At issue is whether the City is entitled to immunity from liability pursuant to sections 2-109 and 2-201 of the Act. Determining whether the City is immune involves interpreting the language of the Act. Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 503 (2000). This is a question of law, which this court reviews de novo. See id.; Smith v. Waukegan Park District, 231 Ill. 2d 111, 115 (2008); Barnett, 171 Ill. 2d at 385. Our primary objective in interpreting a statute is to ascertain and give effect to the intent of the legislature. Taylor v. Pekin Insurance Co., 231 Ill. 2d 390, 395 (2008). The most reliable indicator of that intent is the statutory language, given its plain and ordinary meaning. Id. We view the statute as a whole, bearing in mind the subject it addresses and the apparent intent of the legislature in enacting it. People ex rel. Madigan v. Wildermuth, 2017 IL 120763, ¶ 17. Words and phrases should not be viewed in isolation but, rather, must be considered in light of other relevant provisions in the statute. In re E.B., 231 Ill. 2d 459, 466 (2008). ¶ 15 In 1965, the General Assembly enacted the Act in response to this court’s abolition of sovereign immunity. Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11 (1959); Barnett, 171 Ill. 2d at 386; see also Ill. Const. 1970, art. XIII, § 4 (recognizing the

122489

abolition of sovereign immunity, “[e]xcept as the General Assembly may provide by law”). The Act protects local public entities and their employees from liability arising from government operations. Van Meter v. Darien Park District, 207 Ill. 2d 359, 368 (2003); 745 ILCS 10/1-101.1(a) (West 2012). The purpose of the Act is to prevent the dissipation of public funds on damage awards in tort cases. Murray v. Chicago Youth Center, 224 Ill. 2d 213, 229 (2007) (citing Van Meter, 207 Ill. 2d at 368). Unless a specific immunity provision in the Act applies, a public entity is liable in tort to the same extent as a private party. Id. Since the Act is in derogation of the common law, it must be construed strictly against the public entity seeking immunity. Snyder v. Curran Township, 167 Ill. 2d 466, 477 (1995); Aikens v. Morris, 145 Ill. 2d 273, 277-78 (1991). ¶ 16 The trial court granted summary judgment to the City on the grounds that it was entitled to immunity under sections 2-109 and 2-201 of the Act. Read together, these sections immunize a public entity from liability for the discretionary acts or omissions of its employees. See Smith, 231 Ill. 2d at 118 (citing Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 484 (2002), and Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 496 (2001)). ¶ 17 Section 2-109 of the Act states: “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 2012). ¶ 18 Section 2-201 of the Act states: “Except 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.” Id. § 2-201. The conditional language in section 2-201, “[e]xcept as otherwise provided by Statute,” indicates that the legislature did not intend for the immunity in this provision to be absolute and applicable in all circumstances. See Murray, 224 Ill. 2d at 232. Thus, discretionary immunity under section 2-201 “is contingent upon whether other provisions, either within the Act or some other statute, create[ ] exceptions to or limitations on that immunity.” Id. ¶ 19 Plaintiff first argues that the City cannot claim discretionary immunity under sections 2-109 and 2-201 of the Act because section 3-102(a) supersedes these provisions. Section 3-102(a) states: “(a) Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.” 745 ILCS 10/3-102(a) (West 2012). ¶ 20 Plaintiff characterizes section 3-102(a) as an immunity provision similar to other immunity provisions in the Act. She argues that section 3-102(a) “directly governs a local public entity’s immunity relating to a dangerous condition of its property.” In support, plaintiff points to the rule of statutory construction that holds that, “ ‘[w]here there are two statutory provisions, one

122490

of which is general and designed to apply to cases generally, and the other is particular and relates to only one subject, the particular provision must prevail.’ ” Hernon v. E.W. Corrigan Construction Co., 149 Ill. 2d 190, 195 (1992) (quoting Bowes v. City of Chicago, 3 Ill. 2d 175, 205 (1954)). Relying on this rule, plaintiff contends that the City cannot claim discretionary immunity under the Act because the specific “immunities” in section 3-102(a) prevail over the general immunities in sections 2-109 and 2-201 and the City has failed to show it is entitled to immunity under section 3-102(a). We reject this argument. ¶ 21 The fatal flaw in plaintiff’s reasoning is that section 3-102(a) does not grant any immunities. Section 3-102(a) contains two main clauses. The first clause states that a local public entity has a “duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used.” 745 ILCS 10/3-102(a) (West 2012). The second clause states that a local public entity “shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.” Id. ¶ 22 Plaintiff acknowledges that the first clause simply sets forth a general duty on the part of a local public entity to maintain its property in a reasonably safe condition under certain circumstances. She argues, however, that the second clause in the statute operates as an immunity provision. According to plaintiff, section 3-102(a) immunizes local public entities from liability for the failure to maintain their property if either of two conditions exist: (1) the public entity lacks sufficient notice of the dangerous condition, or (2) the public entity lacks sufficient time to correct the dangerous condition. ¶ 23 Plaintiff’s reading of the second clause in section 3-102(a) is erroneous. The statute clearly refers to the plaintiff’s burden to prove the defendant had actual or constructive notice of the dangerous condition of the property within a reasonable amount of time to remedy or protect against the condition. See id. (“a local public entity *** shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition *** in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition” (emphasis added)). It is the plaintiff’s burden to allege and prove all of the elements of a negligence claim, including a duty owed by the defendant, a breach of that duty, and that the breach was the proximate cause of the plaintiff’s injuries. First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 256 (1999). Under section 3-102(a), actual or constructive notice of a dangerous condition is an element of a negligence claim. See Lansing v. County of McLean, 69 Ill. 2d 562, 572-73 (1978) (actual or constructive notice requirement in section 3-102 of the Act is a necessary predicate of a duty on the part of the defendant public entity); Glass v. City of Chicago, 323 Ill. App. 3d 158, 162-64 (2001) (the plaintiff has the burden to prove actual or constructive notice under section 3-102(a)). By contrast, the immunities in the Act are affirmative defenses, which the defendant has the burden to plead and prove. Van Meter, 207 Ill. 2d at 370. Consequently, if the purpose of section 3-102(a) were to grant immunity to a local public entity, as plaintiff argues, the statute would refer to the burden of proof imposed on the defendant, not the plaintiff.

122491

¶ 24 For this reason, no court has held that section 3-102(a) grants immunity to municipalities. Rather, the courts of this state have uniformly held that section 3-102(a) merely codifies the common-law duty of a local public entity to maintain its property in a reasonably safe condition. See Bruns v. City of Centralia, 2014 IL 116998, ¶ 15; Bubb v. Springfield School District 186, 167 Ill. 2d 372, 377-78 (1995); Wagner v. City of Chicago, 166 Ill. 2d 144, 150 (1995); West v. Kirkham, 147 Ill. 2d 1, 14 (1992); Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 412-15 (1991); Curtis v. County of Cook, 98 Ill. 2d 158, 163 (1983); Goodknight v. Piraino, 197 Ill. App. 3d 319, 327 (1990); Swett v. Village of Algonquin, 169 Ill. App. 3d 78, 92 (1988); Horrell v. City of Chicago, 145 Ill. App. 3d 428, 435 (1986); Warchol v. City of Chicago, 75 Ill. App. 3d 289, 294 (1979); David C. Baum, Tort Liability of Local Governments and Their Employees: An Introduction to the Illinois Immunity Act, 1966 U. Ill. L.F. 981, 1012. As this court has stated: “[T]he language in section 3-102(a) is clear: the city has a duty to maintain its property in a reasonably safe condition so that persons using ordinary care are not harmed. *** *** *** [T]he purpose of section 3-102(a) is not to grant defenses and immunities. Instead, it merely codifies, for the benefit of intended and permitted users, the common law duty of a local public body to properly maintain its roads. Immunities and defenses are provided in other sections. [Citation.]” (Emphases added.) Wagner, 166 Ill. 2d at 151-52. ¶ 25 Accordingly, we conclude that the statutory language does not support plaintiff’s characterization of section 3-102(a) as an immunity provision. Because section 3-102(a) does not confer immunity, it cannot override or supersede the immunities set forth in sections 2-109 and 2-201. These sections simply do not conflict with each other. Therefore, the principle that a specific immunity provision prevails over a general immunity provision is inapplicable. See Kennell v. Clayton Township, 239 Ill. App. 3d 634, 639-40 (1992). ¶ 26 Plaintiff next argues that the City cannot claim discretionary immunity under sections 2-109 and 2-201 because these sections are located in article II of the Act. She points to the first phrase in section 3-102(a), which states, “[e]xcept as otherwise provided in this Article, a local public entity has the duty” to exercise ordinary care to maintain its property. 745 ILCS 10/3-102(a) (West 2012). Plaintiff interprets this phrase to mean that the only immunities available to a public entity for claims involving the maintenance of property are those in article III of the Act. Because sections 2-109 and 2-201 are not found in article III, plaintiff contends they are inapplicable here. Once again, plaintiff’s argument misconstrues the statutory language. ¶ 27 The plain language in section 3-102(a) states that a local public entity has certain duties, except as otherwise provided in article III. The statute says nothing about immunities. In West, 147 Ill. 2d at 14, this court considered the language in section 3-102(a) and concluded that the phrase “[e]xcept as otherwise provided in this Article” limits the scope of a municipality’s duty as set forth in that section. At issue in West was whether a municipality’s duty to maintain its property included the duty to install a left turn arrow at an intersection. We held: “It is ‘otherwise provided’ in section 3-104, which is located in article III with section 3-102(a), that a municipality does not have a duty to provide traffic control devices.” (Emphases in original.) Id. Thus, this court interpreted the conditional language in section 3-102(a) to be a limitation

122492

on the scope of the general duty to maintain property. Id. We did not find the language limited the scope of immunities available to a defendant. Plaintiff’s argument is at odds with precedent and simply not supported by the language in the Act. ¶ 28 Under the plain language of the Act, a negligence claim based on a municipality’s violation of the duty to maintain its property can be subject to discretionary immunity under section 2-201, depending on the facts in the case. We now address whether the immunity provisions apply here. ¶ 29 Whether an act or omission is classified as discretionary within the meaning of section 2-201 escapes precise formulation and should be made on a case-by-case basis in light of the particular facts and circumstances. Snyder, 167 Ill. 2d at 474 (citing Johnston v. City of Chicago, 258 Ill. 494, 497 (1913), and Johnston v. City of East Moline, 405 Ill. 460, 466 (1950)). Immunity under section 2-201 is absolute, covering both negligent and willful and wanton conduct. In re Chicago Flood Litigation, 176 Ill. 2d 179, 195-96 (1997). A defendant claiming immunity under this section must prove its employee held either a position involving the determination of policy or a position involving the exercise of discretion. Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 341 (1998). In addition, the defendant must establish that the act or omission giving rise to the injuries was both a determination of policy and an exercise of discretion. Id. ¶ 30 Policy determinations are defined as “ ‘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.’ ” Id. at 342 (quoting West, 147 Ill. 2d at 11). Discretionary decisions are “unique to a particular public office” (Snyder, 167 Ill. 2d at 474) and “involve the exercise of personal deliberation and judgment in deciding whether to perform a particular act, or how and in what manner that act should be performed” (Wrobel v. City of Chicago, 318 Ill. App. 3d 390, 394-95 (2000)). In contrast to discretionary and policy decisions, a public entity’s ministerial acts are not immune from liability under the Act. See Chicago Flood Litigation, 176 Ill. 2d at 193-94. Consequently, the negligent performance of ministerial acts can subject a municipality to tort liability. Snyder, 167 Ill. 2d at 473. 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.” Id. at 474 (citing Larson v. Darnell, 113 Ill. App. 3d 975 (1983)). ¶ 31 Plaintiff contends that the trial court’s grant of summary judgment in favor of the City must be reversed because there is a genuine issue of material fact as to whether the acts or omissions alleged in her complaint are classified as discretionary or ministerial. We reject this argument. Whether an act is discretionary within the meaning of the Act is a question of law to be decided by a court, not a question of fact for a jury. See, e.g., Van Meter, 207 Ill. 2d at 380 (holding, as a matter of law, that defendants did not meet their burden to establish their discretionary immunity defense);1 Harrison v. Hardin County Community Unit School District No. 1, 197

122493

Ill. 2d 466, 474 (2001) (holding, as a matter of law, that the school district was entitled to discretionary immunity); Harinek, 181 Ill. 2d at 341-43 (holding, as a matter of law, that the city was entitled to discretionary immunity); Chicago Flood Litigation, 176 Ill. 2d at 196-97 (holding, as a matter of law, that the city’s actions were discretionary); Snyder, 167 Ill. 2d at 474-77 (holding, as a matter of law, that the alleged acts or omissions were properly characterized as ministerial, not discretionary). On the tort immunity issue, plaintiff does not dispute any facts set forth in the pleadings, depositions, and affidavits, nor does she present any additional evidence to contradict the facts of record. Thus, there are no genuine issues of material fact, and the only issue is whether the City is entitled to immunity as a matter of law under the Act. ¶ 32 In her complaint, plaintiff alleged the City breached its duty to maintain its premises in a reasonably safe condition by, among other things, allowing a portion of its sidewalk to become sunken, broken, or uneven; failing to correct or repair the sidewalk; and failing to warn pedestrians of the dangerous condition of the sidewalk. The City contends these alleged acts or omissions were discretionary in nature because the decisions to repair certain portions of the sidewalk and leave other portions alone were a matter of public policy within its employees’ discretion. We disagree. ¶ 33 This court has recognized that, depending on the facts, decisions involving repairs to public property can be a discretionary matter subject to immunity under section 2-201. Chicago Flood Litigation, 176 Ill. 2d at 195 (citing Kennell, 239 Ill. App. 3d at 641, citing Lusietto v. Kingan, 107 Ill. App. 2d 239, 244 (1969)). However, “ ‘[d]iscretion’ connotes a conscious decision.” Corning v. East Oakland Township, 283 Ill. App. 3d 765, 768 (1996). Accordingly, a public entity claiming immunity for an alleged failure to repair a defective condition must present sufficient evidence that it made a conscious decision not to perform the repair. The failure to do so is fatal to the claim. See, e.g., Gutstein v. City of Evanston, 402 Ill. App. 3d 610, 626 (2010) (city not entitled to discretionary immunity where no evidence showed any repair work was done in an alley, let alone how it was done); Corning, 283 Ill. App. 3d at 768-69 (city’s failure to replace a missing stop sign was not an exercise of discretion under section 2-201 because there was no evidence the city was aware of it or made the decision to remove it). ¶ 34 In this case, the City has not met its burden of establishing that the alleged acts or omissions constituted an exercise of discretion and a determination of policy by its employees within the meaning of section 2-201. The record shows the City began a project to repair its downtown-area sidewalks in the fall of 2011 and completed it in the spring of 2012. Larson and Ahrens testified they conducted separate walk-throughs of the area and marked or noted the portions of sidewalk they felt were in need of repair. Ahrens made the final determinations as to which concrete slabs would be repaired, replaced, or removed. Ahrens testified that no City policy dictated these decisions. Rather, he relied on a number of factors, including the cost and time allowed for the project, the condition of the concrete, nearby obstructions, and the path of travel for pedestrians. It is uncontested that the sidewalk slabs upon which plaintiff

immunity defense were not apparent on the face of the complaint, nor were they supported by affidavit or other evidentiary materials of record. Id. Thus, defendants were not entitled to a dismissal as a matter of law. Id. Accordingly, the case does not stand for the proposition that whether an act is discretionary or ministerial is a factual question to be decided by the trier of fact.

122494

alleges she tripped and fell were not worked on during the course of the 2011-12 project. Ahrens stated he did not remember inspecting the portion of the sidewalk where plaintiff fell. He testified that section would have been included in his overall inspection, however. Ahrens averred in his affidavit that, to the best of his knowledge and memory, the portions of sidewalk involved in plaintiff’s accident “were either not prioritized to be in need of replacement at that time or such replacement could not fit with the allowable time and budget for that project.” In his deposition, Ahrens admitted he did not recall any conversations or decisions regarding the specific slabs at issue. Ahrens also testified he had no e-mails or documents in his possession related to those slabs. ¶ 35 The City has not presented any evidence documenting the decision not to repair the particular section of sidewalk at issue in this case. We do not believe the legislature intended to apply discretionary immunity under these circumstances. Under the City’s rationale, nearly every failure to maintain public property could be described as an exercise of discretion. In order to obtain absolute immunity, a city would only have to allege (i) it had a general policy or program to inspect its property for dangerous conditions, (ii) the defect at issue was included in the program, (iii) the defect at issue was not repaired, and (iv) thus, the city exercised discretion in deciding not to repair the defect. This reasoning expands the definition of discretionary immunity so broadly as to eliminate a city’s duty to maintain its property. See id. (rejecting township’s argument that its failure to maintain or inspect its property was an act of discretion as an “ ‘impermissibly expansive definition of discretionary immunity’ ” (quoting Snyder, 167 Ill. 2d at 472)). ¶ 36 The facts in this case stand in marked contrast to another case involving a sidewalk defect. In Richter v. College of Du Page, 2013 IL App (2d) 130095, ¶¶ 1, 4, a student filed a negligence action against the College of Du Page (College) after tripping and falling on an uneven sidewalk. The College moved for summary judgment based on immunity under sections 2-109 and 2-201 of the Act. The trial court granted the motion, and the appellate court affirmed the entry of summary judgment. Id. ¶¶ 24, 50. The record showed Chris Kornsey, the manager of the buildings-and-grounds department, had unfettered discretion as to the handling of each sidewalk deviation, including the one at issue. Id. ¶ 41. The College’s policy for handling such deviations involved three levels: “first, placing orange cones to alert individuals to the deviation; second, applying yellow paint; and third, physically altering the sidewalk, if necessary.” Id. Kornsey’s own policy “was to use a wait-and-see approach to determine the level of correction required, if any.” Id. He testified that he “made a ‘per-case’ decision or judgment call depending on the height, timing, and location of the deviation.” Id. ¶ 44. ¶ 37 Sometime prior to the date of the plaintiff’s accident, Kornsey was notified of the defect because someone else had tripped on the same uneven sidewalk. Id. ¶¶ 20, 41. Kornsey placed orange cones and applied yellow paint at the site. The cones and paint were present at the time the plaintiff tripped and fell on the sidewalk. Id. ¶¶ 41, 44-45. After that incident, Kornsey waited until after the final thaw of the year to physically repair the sidewalk. Id. ¶ 21. He stated that patch work was done and the entire area was “ ‘planed down.’ ” Id. The court held Kornsey’s handling of the sidewalk deviation constituted an exercise of discretion and a determination of policy within the meaning of section 2-201. Id. ¶ 50. The College thus was absolutely immune from liability pursuant to sections 2-109 and 2-201 of the Act. Id.