In Williams v. Village of Berkley, the First District Appellate Court considered whether the municipal defendant had sufficiently proven that it was immune from suit under Sections 2-109 and 2-201 of the Tort Immunity Act (745 ILCS 10 et seq). Section 2-201 provides that “[e]xcept 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.” Section 2-109 provides 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.” Together, these sections make up the “discretionary” immunity conferred to local public entities by the Tort Immunity Act.
At issue was whether the municipality was immune from the plaintiff’s allegations that the municipality was negligent when it failed to remove a tree branch that fell, injuring him and killing his dog. The plaintiff’s first count alleged that the municipality negligently allowed the tree to become and remain in a dangerous condition, and his second count alleged that the municipality was willful and wanton in allowing the tree to remain in a dangerous condition. The plaintiff testified that, before the incident, he had conversations with various unnamed city employees regarding the removal of the tree, which was in a parkway and could only be addressed by the municipality. During these conversations, the plaintiff testified that he was told that the municipality was aware of the issue and was “going to get to it,” but that the municipality was “running behind.” The superintendent for the municipality’s public works department, however, testified that he did not know about any defects with the tree, including that he had not received any reports “that the tree was in distress of any kind.”
On the circuit court level, the municipality was granted summary judgment, with the court finding that the decision of whether and when to remove the tree was a matter of discretion immunized by Sections 2-109 and 2-201. However, the First District reversed this decision, finding that the superintendent for the municipality’s Department of Public Works could not have made a discretionary decision since he testified that he was unaware of any alleged defect. Since the superintendent was unaware of any alleged defect, the First District held that he could not have exercised discretion regarding whether the tree would be removed and, if so, when the municipality would be able to remove it.
Williams is indicative of the appellate courts’ increasing scrutiny of the discretionary act immunity and demonstrates the increasing importance of municipalities making sure that they have proven all elements of defenses asserted under the Tort Immunity Act. While the Tort Immunity Act is a powerful tool that municipalities can use to assert immunity in certain categories of cases, municipalities must ensure that they are establishing all required elements of the immunity asserted, especially when it comes to the discretionary act immunity.
For more information about this article, please contact Tressler attorney Taylor Brewer at tbrewer@tresslerllp.com.