shielded from immunity under this provision. 745 ILCS 10/2-109
(a local public entity is not liable for an injury resulting
from an act or omission of its employee where the employee is
In applying section 2-201, the Illinois Supreme Court requires
that conduct be both an exercise of discretion and a policy
determination to garner immunity. Harinek v. 161 North Clark
Street Ltd., 181 Il.2d 335, 343, 230 Ill.Dec. 11,
692 N.E.2d 1177, 1182 (1998). Discretionary acts are those which are unique
to a public office and involve the use of discretion as to the
propriety of the act. Snyder v. Curran Township, 167 Il1.2d
466, 474, 212 Ill.Dec. 643, 657 N.E.2d 988, 993 (Ill. 1995). An
act is a determination of policy if it requires a balancing of
interests and judging which solution would best serve each of
those interests. Harinek 181 Il1.2d at 342, 230 Ill.Dec. 11,
692 N.E.2d 1177. The City's alleged wrongdoing in this case is
both discretionary and a determination of policy, and fits
within the scope of the Immunity Act.
Plaintiff argues that while the City's alleged activity is
most likely discretionary and a determination of policy, the
City cannot claim immunity since plaintiff has alleged that the
conduct is willful and wanton. However, there is no willful and
wanton exception to the immunity provided in section 2-201 of
the Immunity Act. In re Chicago Flood Litigation, 176 Il1.2d
179, 196, 223 Ill.Dec. 532, 680 N.E.2d 265 (Ill. 1997). We
recognize that the federal courts in this circuit have carved
out an exception to the rule in In re Chicago Flood Litigation.
See Payne for Hicks v. Churchich, 161 F.3d 1030 (7th Cir.
1998); Williams v. City of Elgin, 1999 WL 688711 (N.D.Ill.
1999). Where In re Flood was not cited in the parties' briefs,
this court has also made an exception. See Hanania v.
Loren-Maltese, 56 F. Supp.2d 1010, 1014 (N.D.Ill. 1999). It is
now clear that this exception is in conflict with the Illinois
Supreme Court's reading of the Immunity Act, and we are bound to
follow the highest state court's reading of state statutes.
O'Brien v. Skinner, 414 U.S. 524, 531, 94 S.Ct. 740, 38
L.Ed.2d 702 (1974). The City is immune from plaintiffs state
In both counts of her complaint plaintiff seeks punitive
damages. The City is correct in its assertion that punitive
damages cannot be obtained from a municipality. City of Newport
v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69
L.Ed.2d 616 (1981).
For the above reasons, defendant City of Chicago's motion to
dismiss is granted in part and denied in part. We dismiss count
II of plaintiffs complaint and strike any remaining request for
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