Court clarifies discretion vs. ministerial

Marty Dolan, principal at Dolan Law, and his associate Karen Munoz represent victims of wrongful death and personal-injury. His column “Law and Wellness” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

The Local Government and Governmental Employees Tort Immunity Act (Tort Immunity Act) came under examination recently in the Third District Appellate Court case of Robinson v Washington Township, 2012 IL App (3d) 110177 (Aug. 29, 2012). At issue in this case was the trial court’s ruling that the defendants were immune from liability pursuant to the Tort Immunity Act. It was held in the present case that the trial court had erred in ruling that the defendant was immune from liability and remanded the case.

The plaintiff, suing through his mother, was a minor who sustained injuries when a car being driven by his father went out of control after hitting a pothole and running over road construction debris. The car rolled over and landed on its roof. The township had undertaken repairs on this roadway prior to the accident. The plaintiff alleged that defendants had a duty to exercise ordinary care and caution when completing roadway repairs. The trial court agreed with the defendant at first instance that the defendants were immune from liability under sections 2-109 and 2-201 of the Tort Immunity Act as the filling of potholes was a discretionary function. Defendants were granted a motion to dismiss.

Upon reviewing the motion to dismiss, the appellate court found that that the Tort Immunity Act grants immunity to public entities for “discretionary functions.” Section 2-201 of the act states that “[a] local public entity is not liable for an injury resulting from an act or omission of its employees where the employee is not liable.” To be determined in the present case was whether the act of repairing the roadway was a determination of policy and therefore an exercise of discretion or a ministerial act. A ministerial act is an act which is done in a prescribed manner “in obedience to the mandate of legal authority, and without reference to the official’s discretion as to the propriety of the act.” (Snyder v Curran Township, 167 Ill. 2d 466, 474 (1995).)

The majority of the court in the present case found that the acts of repairing roads are primarily ministerial acts for which public entities are liable if negligently performed. The court followed a strong line of reasoning, which stated that a public entity exercises discretion when it adopts a plan in the making of public improvements but the carrying out of the plan is a ministerial act that should be done in a reasonably safe and skillful manner. It was held that the Tort Immunity Act did not apply and the case was remanded.

However, Justice William E. Holdridge was a dissenting voice in the decision. He believed that the plaintiff had not pled any facts to suggest that any new hazard was created by the repairs above and beyond the condition of the roadway prior to the repairs. Holdridge, in his brief decision, also argued that whether acts or omissions are discretionary or ministerial should be determined on a case-by-case basis.

While Holdrige’s reasoning dilutes the strength of this decision, overall this decision should be welcomed as a clarification on the issue. It is now clear that a public entity exercises discretion and is thereby immune from liability when it selects and adopts a plan for the making of improvements. However, the public entity is bound to exercise that plan with reasonable skill and care.

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