A City Loses Its Immunity For negligence When It Decides To Repair Roads

In Robinson v. Washington Township, the Plaintiff, Ricky Robinson Jr., was a passenger in a motor vehicle driven by his father. As Robinson Sr was driving, he hit a pothole, hit some construction debris, and lost control. The car rolled over and landed on its roof. The Plaintiff sustained head trauma. Ricky’s mother filed suit on his behalf. She claimed that the defendant, a township, had a duty to exercise ordinary care while completing roadway repairs.

The defendant moved to dismiss arguing it was immune to liability under Section 2-109 and 2-202 of The Tort Immunity Act because filling potholes is a “discretionary” act. The trial court granted the motion to dismiss. The plaintiff filed an amended complaint alleging that “after having started repairs” the defendant: failed to provide a road free of hazardous defects knowing of the existence of hazardous conditions on the road, failed to maintain the road reasonably safely, failed to properly inspect the road for defects, failed to warn motorists of an uneven surface, and lastly, failed to warn motorists by the use of legible signs of the existence of potholes and pitted surface. The plaintiff alleged that the defendant knew or should have known of the existence of the hazardous condition of the road. The trial court dismissed the case again. The plaintiff elected to stand on his complaint to appeal the matter.

The appellate court reversed the trial court’s decision. It discussed the law concerning Tort Immunity Act. Under the Tort Immunity Act, public entities are not liable for “discretionary” functions. Section 2-109 provides that “a public entity is not liable for any injury resulting from an act or omission of its employee where the employee is not liable.” 745ILCS 10/2-109. A public employee is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion, even if it is abused. 745ILCS 10/2-201. Section 2-201of the Tort Immunity Act immunizes liability for negligence and willful and wanton misconduct and is strictly construed against the public entity seeking immunity.

The court discussed discretionary action of municipality when it selects and adopts a plan in making public improvements. Normally, the public entity or municipality is immune. However once a public entity, like a city, carries out the plan “it acts ministerially and is bound to see that the work is done in a reasonably safe and skillful manner.”

The court held that the plaintiff’s complaint was sufficient because it alleged that the municipality decided to make the discretionary decision to change the highway. Once it decides to improve the road it is required to use ordinary care and is liable for negligence. The decision to improve the road is up to the municipality. If it elects not to improve the road, it is only liable for willful and wanton misconduct. Once it decides to repair, it must do so safely.

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