Appeal from Circuit Court of Vermilion County No. 95L38 Honorable Michael D. Clary, Judge Presiding.
The opinion of the court was delivered by: Justice Cook
In 1994, plaintiff, Darrell Courson, an eighth-grade student, was injured while using a table saw during shop class. The case was previously before us on the trial court's grant of summary judgment to defendant, Danville School District No. 118 (District). Courson v. Danville School District No. 118, 301 Ill. App. 3d 752, 704 N.E.2d 447 (1998). The trial court had held that the actions of the District and its employees in failing to provide a safety shield on the saw were discretionary actions which came within the immunity afforded by the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/2-201 (West 2000)). We reversed the summary judgment, noting that the deposition of the shop teacher had not been taken, and that not every action taken by a public employee is immunized by the Act. Courson, 301 Ill. App. 3d at 757-58, 704 N.E.2d at 451.
The parties have now deposed the shop teacher, Paul Liddle. Liddle testified that the saw's safety shield was not functioning properly; it would catch on wood being pushed through the saw. He therefore deemed the saw more safe to operate without the shield. Thus, he permanently removed the shield sometime before plaintiff was injured. Liddle also testified that he was given authority by the District to operate the wood shop in the manner he saw fit. He did not contact any school official or the manufacturer of the saw before or after removing the safety shield. Based on Liddle's deposition, the trial court again entered summary judgment in favor of the District. Plaintiff appeals. We review an order granting summary judgment de novo. Warren v. Burris, 325 Ill. App. 3d 599, 603, 758 N.E.2d 889, 892 (2001).
The conflicting provisions and meaningless intricacies of the Act have presented problems for the courts. The application of section 2-201 has been particularly difficult. Section 2-201 provides as follows:
"Except as otherwise provided by [s]tatute, 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 2000).
Applying this language, the supreme court has stated that the employee's position may involve either (1) determining policy or (2) exercising discretion, but the employee's act or omission must be both a (3) determination of policy and an (4) exercise of discretion. Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 484, 763 N.E.2d 756, 763 (2002). The key question under section 2-201 is accordingly not so much the position of the employee but the determination made by the employee, whether that determination was a "discretionary policy determination." Arteman, 198 Ill. 2d at 487, 763 N.E.2d at 764.
In our previous decision, we focused on the determination made by the employee and concluded there were three possibilities in these cases:
(1) The act or omission could constitute a discretionary action, where the public employee taking the action would be immune from liability, under section 2-201, and the local public entity would then be immune under section 2-109 if the only basis for its liability was vicarious liability. Courson, 301 Ill. App. 3d at 756, 704 N.E.2d at 450.
(2) The act or omission could be ministerial, in which event the local public entity may be liable, but the public employee will not be liable under section 2-202, absent willful and wanton conduct. Courson, 301 Ill. App. 3d at 756, 704 N.E.2d at 450.
(3) The act or omission might be neither an exercise of discretion nor a ministerial act, but simply an oversight, in which event there would not be immunity under section 2-201. Courson, 301 Ill. App. 3d at 757, 704 N.E.2d at 451; see also Catberro v. Naperville School District No. 203, 317 Ill. App. 3d 150, 154, 739 N.E.2d 115, 119 (2000) (purchase of poles used in physical education class may have involved a mere failure to inspect, not an exercise of discretion).
One of the rationales for sovereign immunity is that allowing a suit could operate to control the actions and policies, the discretion, of the sovereign. Currie v. Lao, 148 Ill. 2d 151, 159-60, 592 N.E.2d 977, 980 (1992). In our previous decision, we noted that although many activities may be said to involve discretion, some cases have narrowed the definition. The operation of a snowplow is neither a ministerial nor a discretionary action. Snyder v. Curran Township, 167 Ill. 2d 466, 473, 657 N.E.2d 988, 992 (1995) (overruling Mower v. Williams, 402 Ill. 486, 84 N.E.2d 435 (1949)). "'[D]iscretionary acts are those which are unique to a particular public office.'" Arteman, 198 Ill. 2d at 484-85, 763 N.E.2d at 763, quoting Snyder, 167 Ill. 2d at 474, 657 N.E.2d at 993. It would be difficult to conceive of any official act that did not admit of some "discretion" in the manner of its performance, even if it involved only the driving of a nail. Snyder, 167 Ill. 2d at 474, 657 N.E.2d at 993.
Along those lines, the rule has evolved that claims based on the negligent operation of an automobile by a state employee are generally outside the doctrine of sovereign immunity. Currie, 148 Ill. 2d at 160, 592 N.E.2d at 980.
"Lao's decisions, as he proceeded to the alleged call, regarding when to execute turns were not 'discretionary' acts, as that term is used in the analysis of this issue. While Lao did in fact make decisions regarding what route to follow, the choices he made were not an exercise of his official discretion. To the contrary, Lao's deciding when and where to turn was an activity of a non-official nature. These same choices are made by all drivers of motor vehicles. This was not an activity that is uniquely related to Lao's official duties as a State trooper." (Emphasis in original.) Currie, 148 Ill. 2d at 167, 592 N.E.2d at 984.
"This rule is, of course, not without exceptions: in some circumstances, a State employee's manner of operating a vehicle may be so unique to his employment that a lawsuit aimed at his negligent driving could operate to control the actions and policies of the State. See, e.g., Campbell v. White (1991), 207 Ill. App. 3d 541[, 552, 566 N.E.2d 47, 54] (sovereign immunity applies where a State law enforcement officer is engaged in a high-speed chase ...