Appeal from the Circuit Court of Du Page County. No. 10-L-303, Honorable Dorothy French Mallen, Judge, Presiding.
Justices McLaren and Hutchinson concurred in the judgment and opinion.
¶ 1 Plaintiff, Blanche Richter, filed suit against defendant, the College of Du Page, after falling on an uneven sidewalk. The College raised an affirmative defense under sections 2-109 and 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-109, 201 (West 2010)) and moved for summary judgment. At issue is whether the handling of the sidewalk deviation was a discretionary act under section 2-201 (745 ILCS 10/2-201 (West 2010)) or a ministerial act under section 3-102 (745 ILCS 10/3-102 (West 2010)) of the Tort Immunity Act. The trial court determined that the College was entitled to discretionary immunity under sections 2-109 and 2-201 because the handling of the sidewalk deviation was both an exercise of discretion and a policy determination, as opposed to a ministerial act. The court granted the College's motion for summary judgment, and plaintiff appeals. We affirm.
¶ 2 I. BACKGROUND
¶ 3 A. Complaint and Affirmative Defenses
¶ 4 On March 3, 2010, plaintiff filed a complaint against the College, alleging as follows. On March 12, 2009, at about 6:50 p.m., plaintiff was approaching the revolving door on the south side of the Student Resource Center (SRC) building. As she neared the revolving door, plaintiff caught her foot on a raised portion of the sidewalk, causing her to fall forward against the revolving door and sustain injuries. Plaintiff alleged that the College had actual notice of the uneven walkway prior to March 12, 2009, and had painted the raised portion of the sidewalk yellow. Plaintiff alleged that the College was negligent for failing to repair the uneven sidewalk.
¶ 5 The College filed an answer and raised three affirmative defenses to plaintiff's complaint. First, the College argued that the height differential between the slabs of concrete in the sidewalk was de minimis. Second, the College argued that it was immune under section 3-102 of the Tort Immunity Act because it maintained its premises and did not have actual or constructive knowledge that the sidewalk was not reasonably safe. Third, the College argued that the risk was open and obvious to plaintiff.
¶ 6 Eventually, and over plaintiff's objection, the College was given leave to file an additional affirmative defense under sections 2-109 and 2-201 of the Tort Immunity Act. The College argued that it was entitled to discretionary immunity under those two sections of the Tort Immunity Act.
¶ 7 B. Deposition Testimony
¶ 8 The record contains several depositions. In plaintiff's deposition, she testified that she was a 45-year-old student at the College. On March 12, 2009, she was going to class at the SRC building, wearing a "pant boot" with a wedge heel. The area was well-lit and it was still "pretty light out." Plaintiff was familiar with the area, as she was "well into the semester." As she walked toward the revolving door, plaintiff felt her heel get caught. The next thing plaintiff knew, she "was flying towards the revolving door." Her knee hit the ground and her shoulder and face hit the revolving door. The raised portion of the sidewalk, about 1 to 1½ inches high, was approximately 3 feet from the revolving door. Plaintiff admitted that she was not looking at the ground before she fell, because she was looking to see whether someone was exiting through the revolving door. She did not see any yellow paint or sign warning of an uneven surface. Plaintiff stated that, when walking, she generally did not look at the ground; she looked straight ahead.
¶ 9 Lauri Page, plaintiff's friend, took plaintiff to retrieve her car from the College the day after the accident. Page saw the 1- to 1½-inch raise in the sidewalk where plaintiff fell; a yellow line was painted across the raise. It was a "pretty obvious raise" because of its size.
¶ 10 Susan Benton, the benefits manager at the College, worked in the SRC building. If Benton saw something unsafe on the College grounds, she would call the foreman of the buildings-and-grounds department. Benton offered conflicting testimony as to whether she called about an uneven sidewalk near the south entrance of the SRC building before or after March 2009. Later, Benton said that she called the buildings-and-grounds department because she observed a raise in the sidewalk and thought that it "could present an issue" or a safety hazard. At most, the raise was one-quarter of one inch. Benton was not aware that anyone besides plaintiff had stumbled on the uneven sidewalk. Within a short period of time after she called, Benton noticed yellow paint on the sidewalk. In addition, two orange cones "appeared shortly after [her] phone call, if not that day within the next day."
¶ 11 Benton could not remember whom or when she called about the uneven sidewalk. When pressed, Benton testified that she would have called the buildings-and-grounds department, but did not remember whom she called. She thought Tom Stephenson was the foreman at the time; she thought "that's when he was still there." As far as when she called, Benton thought that it was in the late fall of 2008 or 2009, but it could have been in the late fall of 2007 or 2010; she had "no idea." In fact, Benton was not even sure she called in the late fall; she might have called in December 2008 or 2009 or in January or February 2009. The sidewalk was repaired "during that academic year after [she] made the phone call, " and the academic year was from August through May. Benton believed that the repair was "directly related to" her phone call. Assuming that she called in the late fall, the repair would have been done prior to May of the next year.
¶ 12 Phil Gieschen, the coordinator of risk management for the College, explained that during the season of "freeze and thaw" concrete slabs would shift, depending on what was beneath them. When this occurred, there were three levels of approach: first, put out an orange cone; second, apply yellow paint; and third, physically alter the concrete. There were various ways to physically repair a sidewalk, including patching or grinding. Patching and grinding were not done until after the freeze-and-thaw season, because the slabs of concrete could continue to shift, thus creating a trip hazard. Gieschen stated that, if a slab were physically altered and then shifted again, the College would be faced with the trip hazard again. If a trip hazard occurred during a three- or four-month season of freeze and thaw and could not be physically altered, the standard procedure was to flag it with yellow paint. Once a slab was flagged, the College kept "an eye on it" through the buildings-and-grounds department.
¶ 13 Gieschen saw a field report of plaintiff's fall within one week of its occurrence. The College's standard procedure was to apply yellow paint when a report of a trip hazard came in, to alert individuals that there was a deviation in the sidewalk. At first, Gieschen thought that yellow paint was applied to the sidewalk after plaintiff fell, but photographs revealed that yellow paint was already present when she fell. The raise ...