Appeal from the Circuit Court of Cook County Honorable MARTIN S. AGRAN Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Gallagher
Plaintiffs John Morrissey and Rosa Herrera brought wrongful death actions against the City of Chicago (the City) seeking to recover damages in connection with the deaths of Susan Morrissey and Juan Manuel Herrera, Sr. On January 31, 1997, Susan Morrissey and Juan Manuel Herrera, Sr., were killed as the result of a two-vehicle collision in the 7300-7700 block of South Kedzie Avenue in the City of Chicago. The fatal collision occurred after Susan Morrissey lost control of her vehicle and crossed the center line of traffic, hitting the vehicle in which Juan Manuel Herrera was a passenger. Plaintiffs allege that the cause of the loss of control and subsequent collision was the City's failure to maintain the roadway in a reasonably safe condition by, among other things, failing to warn of or to repair potholes. The City moved for summary judgment on plaintiffs' claims, asserting, among other things, *fn1 that it was immune from liability pursuant to certain sections of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) which included sections 2-201 and 3-102(a). 745 ILCS 10/2-201, 3-102(a) (West 1994). On August 2, 2001, following a hearing, the circuit court denied the City's motion for summary judgment, finding that questions of fact existed as to (1) whether the City's acts were discretionary or ministerial in the present case and (2) whether the City had constructive or actual notice under the immunity provisions of the Tort Immunity Act. On September 5, 2001, however, after considering a joint motion of the parties, the court certified the following question for interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308):
"Is a municipality immune from liability under section 2- 201 of the Local Governmental and Governmental Employees Tort Immunity Act when the municipality is sued for breaching the duty to maintain a public roadway in a reasonably safe condition?"
On October 9, 2001, this court allowed the City's petition for leave to appeal. Oral arguments were heard on June 13, 2002. For the reasons that follow, we now dismiss this appeal.
A local governmental entity is liable in tort on the same basis as a private tortfeasor unless a valid statute dealing with tort immunity imposes limitations upon that liability. Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 345, 692 N.E.2d 1177, 1182-83 (1998). Section 2-201 of the Tort Immunity Act provides:
"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." 745 ILCS 10/2-201 (West 1998).
Section 3-102(a) of the Tort Immunity Act provides:
"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 (West 1998).
The parties disagree as to how these relevant statutes should be interpreted with respect to the instant case. Plaintiffs apparently take the position that the express codification by the legislature of the duty to maintain property under section 3-102(a) rendered ministerial, as a matter of law, the alleged acts of negligence here, such that the immunity of section 2-201 could never apply. The City apparently takes the diametrically opposed position that, despite the duty to maintain its property, it is entitled to absolute immunity regarding all of its decisions regarding pothole repair, i.e., when, where, how and whether to repair a pothole, because all involve both a policy determination and the exercise of discretion and fall squarely within the immunity provided under section 2-201. *fn2
Our supreme court has often stated that the Tort Immunity Act is "in derogation of the common law" and must be strictly construed against the local government entity. See Snyder v. Curran Township, 167 Ill. 2d 466, 477, 657 N.E.2d 988, 994 (1995); Vaughn v. City of West Frankfort, 166 Ill. 2d 155, 651 N.E.2d 1115 (1995); Curatola v. Village of Niles, 154 Ill. 2d 201, 208, 608 N.E.2d 882 (1993); Aikens v. Morris, 145 Ill. 2d 273, 278, 583 N.E.2d 487, 490 (1991). Although the immunities afforded to units of local government under the Tort Immunity Act, including the immunity pursuant to section 2-201, may preclude a plaintiff's right to recover damages, each immunity operates as an affirmative defense that must be properly raised and proven by the public entity. Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 503, 732 N.E.2d 528, 535 (2000).
The City asserts in its brief that "the circuit court erred in recognizing an exception to section 2-201's discretionary immunity whenever a local government is alleged to have breached its duty to maintain the public roadway in a reasonably safe condition." (Emphasis added.) Contrary to the City's characterization of the trial court's decision, our review of the transcript of the hearing on defendant's motion for summary judgment shows that the trial court, in denying summary judgment, instead determined that questions of fact existed as to whether the present case involved decisions which could be characterized as ministerial or discretionary, which is the relevant inquiry regarding the applicability of section 2-201. In fact, the trial court noted that there was nothing in the testimony before it which indicated that anyone had in fact even made any "decision" with respect to this particular hole. Where questions of fact exist regarding the distinction, grants of summary judgment have been held to be error. Courson v. Danville School District No. 118, 301 Ill. App. 3d 752, 704 N.E.2d 447 (1998).
In Courson, a student was injured during class while using a saw with the safety guard removed. The court noted the distinction between situations involving the making of a policy choice and the exercise of discretion and situations involving some oversight or mere inadvertence. Courson, 301 Ill. App. 3d at 757-58, 704 N.E.2d at 451. The court held that factual questions existed as to whether the removal of the guard was an exercise of discretion, in which case immunity might apply, or simply an oversight, in which case the omission would not be immunized. Thus, because the defendant district, by failing to establish that the omission there was a discretionary act, had not met its burden of proof, the motion for summary judgment should have been denied. Courson, 301 Ill. App. 3d at 758, 704 N.E.2d at 451; see also Roark v. Macoupin Creek Drainage District, 316 Ill. App. 3d 835, 841, 738 N.E.2d 574 (2000) (concluding that issue of whether a defendant's decision not to repair a drainage system was discretionary or ministerial presented a question of fact).
More recently, in Anderson v. Alberto-Culver USA, Inc., 317 Ill. App. 3d 1104, 740 N.E.2d 819 (2000), this court reversed a trial court's grant of summary judgment to municipal defendants on grounds of governmental immunity ...