APPEAL from the Circuit Court of La Salle County; the Hon.
WILLIAM P. DENNY, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 25, 1976.
• 1 Plaintiff James Horton filed this action to recover for personal injuries suffered when he was thrown from his motorcycle after striking a large hole in a city street. Following a jury trial, a verdict was entered for $50,000 against both the City of Ottawa and Marseilles Plumbing and Heating Company which had torn up the street for private sewer work several years earlier. In ruling on post-trial motions, the trial court granted defendants' motion for a new trial on the issue of damages but denied defendants' request for remittitur, for judgments notwithstanding the verdict, and for a new trial on the issue of liability. We have granted plaintiff leave to appeal from the order for a new trial on the issue of damages. Defendant City *fn1 has submitted the issue of municipal immunity from liability for plaintiff's injuries, as permitted under Supreme Court Rule 306 (Ill. Rev. Stat. 1975, ch. 110A, par. 306), which permits this court to review all rulings of the trial court on post-trial motions without the necessity of a cross-appeal.
The threshold question is whether the defendant city is immune from liability for injuries caused by a defect in the street. Defendant relies on sections 2-109 and 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1975, ch. 85, pars. 2-109 and 2-201), which are as follows:
"§ 2-109. 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."
"§ 2-201. 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."
As defendant notes, section 2-201 is actually a codification of the common law doctrine known as public official immunity, which was held in Nagle v. Wakey (1896), 161 Ill. 387, 43 N.E. 1079, to bar recovery from a township road commissioner who had failed to put railings on a township bridge so that plaintiff and his team of horses went off the side in midstream. The court concluded that the commissioner had exercised his judgment and discretion in applying the money available to repair roads and bridges in his township, and he could not thereafter be sued personally for the manner in which he exercised that judgment.
After local governmental immunity was abolished in the famed decision in Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill.2d 11, 163 N.E.2d 89, it was held that public official immunity nonetheless survived to protect government officers from personal liability for injuries resulting from holes in public streets and highways under their care. (Ten Eicken v. Johnson (1st Dist. 1971), 1 Ill. App.3d 165, 273 N.E.2d 633; Lusietto v. Kingan (3d Dist. 1969), 107 Ill. App.2d 239, 246 N.E.2d 24; contra, Kitto v. Wattleworth (2d Dist. 1960), 24 Ill. App.2d 484, 164 N.E.2d 817.) None of these cases was decided under the tort immunity statute.
Defendant argues that, under both the statute and case law, the official in charge of city streets is not liable, and therefore the city which employs him is similarly immune from liability under section 2-109. Defendant cites Thiele v. Kennedy (3d Dist. 1974), 18 Ill. App.3d 465, 309 N.E.2d 394, where a prisoner sued the sheriff and the county for injuries suffered at the hands of fellow jail inmates, and Woodman v. Litchfield Community School District No. 12 (5th Dist. 1968), 102 Ill. App.2d 330, 242 N.E.2d 780, where a second grade student sought to recover for injuries received when kicked in the head by another student. Both cases were based on the alleged failure of persons in authority to maintain control and discipline, and in both the governmental entity was held to have immunity under section 2-109.
While we acknowledge the seemliness of defendant's logic, we find that defendant would have us disregard article III of the tort immunity statute which deals with liability for injury occurring in the use of public property. Section 3-102 (Ill. Rev. Stat. 1975, ch. 85, par. 3-102) states the general rule of liability arising out of use of governmental property, as follows:
"(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 sufficient time prior to an injury to have taken measures to remedy or protect against such condition."
• 2, 3 Subsequent sections of article III spell out those specific situations involving use of public property where governmental immunity will be recognized, such as where the injury is attributed to the plan or design of an improvement (section 3-103), failure to provide traffic signals and signs (section 3-104), park and playground property (section 3-106), roads or trails providing access to recreational areas (section 3-107), and failure to supervise use of property (section 3-108). Section 3-105 contains a significant limitation on liability for injuries resulting from use of streets:
"Neither a local public entity nor a public employee is liable for an injury caused by the effect on the use of streets, * * * of weather conditions as such. For the purpose of this section, the effect on the use of streets, * * * of weather conditions includes the effect of wind, rain, flood, ice or snow but does not include physical damage to or deterioration of streets, * * * resulting from weather conditions." (Emphasis added.)
The plain language of the provisions in article III demonstrates the legislative intention to continue the common law liability of local governments for failure to maintain streets in a condition reasonably safe for public use (Hanrahan v. City of Chicago (1919), 289 Ill. 400, 124 N.E. 547; 9 Ill. L. & Pr. Cities, Villages, etc. § 491 (1954)), provided the governmental entity has either actual or constructive notice of the defect in time ...