Appeal from Circuit Court of Greene County No. 94L32 Honorable James W. Day, Judge Presiding.
The opinion of the court was delivered by: Justice Myerscough
In August 1994, plaintiff, Nancy Roark, filed a complaint under the Illinois Drainage Code (Drainage Code) (70 ILCS 605/1-1 through 12-23 (West 1992)) against defendants, claiming damages and requesting injunctive relief regarding defendants' failure to maintain the drainage system. In November 1994, Roark filed an amended complaint. Defendants responded by filing a motion to dismiss Roark's complaint as being barred by the application of the general immunity provisions and the statute of limitations of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 through 10-101 (West 1992)) and for failure to allege sufficient facts to state a cause of action (735 ILCS 5/2-615(a) (West 1994)). The trial court granted defendants' motion to dismiss and denied Roark's motion to reconsider.
Roark appeals, claiming that (1) the Tort Immunity Act does not bar her suit, and (2) her complaint states a cause of action. We reverse and remand.
In August 1994, Roark filed a complaint against defendants for defendants' failure to maintain the drainage system used to drain her land, claiming that the defendants' failure to repair the drainage system caused her land to repeatedly flood. In September 1994, defendants filed a motion for a more definite statement, asking Roark to pinpoint the specific dates on which Roark asked the district to repair the drainage system. In November 1994, in response to defendants' motion, Roark filed an amended complaint. Roark's amended complaint alleged that: (1) the drainage district was organized under Illinois law; (2) Dale Getting and Kenneth Crane were trustees or commissioners of the district; (3) drainage districts are formed to construct, maintain, and/or repair drainage systems; (4) the district breached its duty by failing to repair the drainage system, causing flooding and damage to Roark's real property; (5) Roark made repeated requests for repairs, beginning April 1991; and (6) in 1985 and recurring every year since, Roark's land has flooded. Roark asked the trial court to award her damages and to order the district to make the necessary repairs for proper drainage.
Defendants responded by filing a motion under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619(a)(5), (a)(9) (West 1992)) to dismiss the portion of Roark's complaint requesting damages as being barred by the application of the statute of limitations and the general immunity provisions of the Tort Immunity Act. In that same motion, defendants moved to dismiss the portion of Roark's complaint requesting injunctive relief for failure to comply with section 4-26 of the Drainage Code (70 ILCS 605/4-26 (West 1992)) and for failure to allege sufficient facts to state a cause of action (735 ILCS 5/2-615 (West 1992)). In July 1995, the trial court granted defendants' motion to dismiss.
In November 1995, Roark filed a motion to reconsider. The trial court denied Roark's motion by docket entry dated November 16, 1995. This appeal followed.
The Drainage Code authorizes landowners to form drainage districts "to construct, maintain[,] or repair drains or levees or to engage in other drainage or levee work for agricultural, sanitary[,] or mining purposes." 70 ILCS 605/3-1 (West 1992). Once formed, these districts, headed by their appointed or elected commissioners, are charged with the duty to inspect and maintain the drainage system. 70 ILCS 605/4-15 (West 1992). Specifically, "[t]he commissioners shall make an annual inspection of all the district's improvements and works and keep the drains, levees, pumping plants[,] and other works of the district in operation and repair." 70 ILCS 605/4-15 (West 1992). A district's failure to perform its duties can subject it to litigation and possible liability for "injury, death[,] or damage to property *** caused, in whole or in part, by the negligence *** in the performance or non-performance of [such] duties." 70 ILCS 605/4-40 (West 1992); see also 70 ILCS 605/3-24 (West 1992).
A. Dismissal of Portion of Complaint Under Section 2-619
Roark argues that the trial court erred by dismissing the portion of her amended complaint requesting damages pursuant to sections 2-619(a)(5) and (a)(9) as being barred by the application of the statute of limitations and the general immunity provisions of the Tort Immunity Act. Roark contends that the Tort Immunity Act does not apply to drainage districts and, therefore, cannot bar her amended complaint. We conclude that the Tort Immunity Act applies to drainage districts; however, questions of fact exist that preclude dismissal at this early stage in the litigation.
1. Applicability of the Tort Immunity Act to Drainage Districts
The Tort Immunity Act states that its purpose "is to protect local public entities and public employees from liability arising from the operation of government." 745 ILCS 10/1-101.1(a) (West 1992). Therefore, the Tort Immunity Act applies to all local public entities and their employees. By definition, a local public entity includes counties, townships, municipalities, municipal corporations, school districts, school boards, educational service regions, regional boards of school trustees, community college districts, community college boards, forest preserve districts, park districts, fire protection districts, sanitary districts, museum districts, and all other local government bodies. 745 ILCS 10/1-206 (West 1992). Although drainage districts are not specifically listed as public entities by statute, these districts undoubtedly fit within the catchall category of "other local government bodies."
Drainage districts are "bod[ies] politic and corporate" (70 ILCS 605/3-24 (West 1992)), public corporations having such powers as the legislature has expressly conferred, or as are necessarily implied, by statute (Nutwood Drainage & Levee District v. Mamer, 10 Ill. 2d 101, 107, 139 N.E.2d 247, 252 (1956)). A body politic is defined as a "politically organized, collective body of a nation or State." People v. Asbestospray Corp., 247 Ill. App. 3d 258, 263, 616 N.E.2d 652, 656 (1993). "[D]rainage districts are local subdivisions of the [s]tate, created by law for the purpose of administering certain functions of local government ***." People ex rel. Croft v. Karr, 244 Ill. 374, 385, 91 N.E. 485, 488 (1910). Therefore, drainage districts fall within the purview of the Tort Immunity Act.
2. Discretionary Versus Ministerial Duties
Defendants next argue that the Tort Immunity Act insulates them from liability for failing to maintain or repair the drainage system because that decision was discretionary. Roark counters, claiming that the defendants' duties were ministerial acts to which immunity did not attach.
Drainage districts are "not liable for *** injure[ies] resulting from an act or omission of its employee where the employee is not liable." 745 ILCS 10/2-109 (West 1992). Moreover, a public employee serving in a position that requires him to determine policy or exercise discretion is not liable for injuries resulting from acts or omissions in determining such policy when exercising such discretion, even when such discretion is abused. 745 ILCS 10/2-201 (West 1992). Section 2-201 of the Tort Immunity Act codifies the common-law distinction between discretionary and ministerial duties. Synder v. Curran Township, 167 Ill. 2d 466, 473, 657 N.E.2d 988, 992 (1995). Despite this codification, we continue to employ the common-law definitions of discretionary and ministerial functions. Synder, 167 Ill. 2d at 473, 657 N.E.2d at 992. The distinction between discretionary and ministerial functions is not determined by a precise formula. Synder, 167 Ill. 2d at 474, 657 N.E.2d at 992. Therefore, "the determination whether acts are discretionary or ministerial must be made on a case-by-case basis." Synder, 167 Ill. 2d at 474, 657 N.E.2d at 993-94.
Notwithstanding the ad hoc nature of these determinations, "[d]iscretionary acts are those which are unique to the particular public office and involve the exercise of judgment, while 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." Corning v. East Oakland Township, 283 Ill. App. 3d 765, 768, 670 N.E.2d 350, 352 (1996). Stated another way, discretionary acts are those that require personal deliberation, decision, and judgment, while ministerial acts are those amounting to the performance of a task in accordance with an order. Bonnell v. Regional Board of School Trustees, 258 Ill. App. 3d 485, 489, 630 N.E.2d 547, 549 (1994). Immunity will not attach unless the injury alleged results from ...