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Step on a Crack, Break the City’s Bank: Discretionary Immunity Requires a Conscious Decision to Not Repair City Sidewalks

November 14, 2018

Recently, the Illinois Supreme Court held that the City of Danville, Illinois, was not entitled to immunity from a negligence lawsuit brought by a citizen who tripped and fell on a crack in a city sidewalk. The court essentially held that in order for a city or public entity to be immune under the discretionary immunity statute, it must specifically analyze the sidewalk at issue and decide that the crack at issue was not a big enough problem to warrant fixing.

Stepping on a crack in a sidewalk is a common occurrence and lawsuits to recover injuries that result from it are not rare. In Barbara Monson v. The City of Danville, 2018 IL 122486 (Sup. Ct. Ill. 2018), the plaintiff tripped on an approximate two-inch crack or crevice in a public sidewalk and allegedly sustained injury. Barbara Monson sued the City of Danville, Illinois, alleging that they were negligent in failing to repair the cracked sidewalk and in failing to warn her of the defect. The City filed a Motion for Summary Judgment arguing that whether to repair a crack in its sidewalk was an act of discretion entitling it to immunity from suit pursuant to the Tort Immunity Act. The trial court agreed and the issue made its way to the Illinois Supreme Court. Illinois Statute 745 ILCS 10/2-201 states:

“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.”

In the Monson case, the City of Danville had a project to repair the sidewalks in the area where the plaintiff had fallen. It had repaired several cracks in its sidewalks in the area but the officials in charge of the project, Ms. Larson and Mr. Ahrens, did not repair the two-inch crack to which Ms. Monson had fallen prey. The city officials were deposed about the project.

They testified that they observed the sidewalks in question and marked the areas that needed repairing. Mr. Ahrens made the final decision as to which parts of the sidewalks would be repaired. He did not rely upon any specific objective city policy. Rather, he used his own judgment and made his decisions based on several factors: the costs of the project, the time allowed for it, the condition of the concrete, and nearby obstructions in the path of travel for pedestrians.

Regarding the specific slabs of concrete on which the plaintiff fell, Mr. Ahrens testified that he did not recall inspecting that portion of the sidewalk, but he believed it would have been inspected by his general observations of the sidewalks. He said that either he believed that the slabs in question were not damaged enough to need repair, or their repair did not fit within the remaining time necessary to complete the project and the budget for the entire project. He could not recall ever discussing or e-mailing about the offending slabs and the City did not have any correspondence or documentation indicating that repairs to that specific area were specifically considered and declined.

The Illinois Supreme Court noted that the question of whether immunity under the statute applied is a function of the facts and circumstances of each case. The court pointed out that a public entity that claims immunity for an alleged failure to repair a defective condition must present sufficient evidence that it made a “conscious decision not to perform the repair.” Id. at 12. In this case, the court held that since the City was not able to present any evidence documenting that their officials specifically considered whether to repair the crack in the sidewalk upon which Ms. Monson fell, and did not present any evidence documenting their decision to not repair that section of the sidewalk, they did not meet their burden of establishing that this omission constituted an exercise of discretion which was entitled to immunity under the Act. The court noted that the record in the Monson case contained no evidence of the City of Danville’s decision-making process with respect to the specific site of the accident. Thus, the court held that the City was not entitled to immunity from Ms. Monson’s negligence suit.

The Supreme Court’s decision highlights two interesting aspects of discretionary immunity under the statute. First, as the statute says, if discretionary immunity applies, it applies even where that discretion is abused. In the Monson case, if the City of Danville had presented evidence to demonstrate making a conscious decision that the crack in the sidewalk wasn’t serious enough to be repaired, they would have presumably had statutory discretionary immunity, even if that decision were wrong. Thus, in order for a city, municipality, or public entity to claim successfully that it exercised discretion entitling it to immunity, they are well advised to document completely their decision-making process.

Note: George A. Kiser, a partner in the firm’s Edwarsville office, co-authored this article.