Van Meter v. Darien Park District

judgment affirming trial appellate court court.

Affirmed. concurring: specially KILBRIDE, JUSTICE (2003), People court this Jones, 207 Ill. 2d In Klingenberg. I dissented from and overruled reconsidered large part, majority of the Jones, because in principle majority’s abandonment unwarranted the case should I that and because believe decisis stare entirely analyzed different basis on an have been Klingenberg. a reconsideration have avoided would Today’s I believe Jones. While decision follows unwisely unnecessarily overruled Jones this court accordingly, Klingenberg, and, Jones is now the law by principles of stare is mandated result in this case decisis. and JUSTICE McMORROW

CHIEF JUSTICE join special this concurrence. FREEMAN

(No. 90541. Appellants, v. THE al., METER et WILLIAM VAN Appellees. al., et PARK DISTRICT DARIEN 17, 2003. Opinion October filed THOMAS, J., part. took no FITZGERALD, J., joined by GARMAN, J., dissenting.

GAEMAN, J., joined by FITZGERALD, J., dissenting. also Spina, Okal, McGuire & P.C., of Elmwood Park (Timothy counsel), appellants. Okal, H. of for Telly Liapis II,

Howard K. Priess J. Sartorio, and D.J. Maloney Chicago, of Tressler, Soderstrom, Priess, & appellee for Darien Park District. Hartigan

Russell W and Paul Jakubiak, C. of Harti- gan Chicago, City appellee Cuisinier, & PC., of for Darien. Argenati,

Norton, Mancini, DeAno, Weiler & (James counsel), appellee DeAno, Wheaton L. for Vil- lage of Downers Grove.

Joseph Attorney, Birkett, E. State’s of Wheaton (Margaret Healy Anthony Hayman, M. E. Assistant Attorneys, counsel), appellee County State’s Page. Du opinion

JUSTICE KILBRIDE delivered court: plaintiffs, Meter, William and Patricia Van filed against

complaint City the District, Darien Park the Village County Darien, the Grove, Downers the that defendants, alleging five private and Page, Du of an completion home upon flooded their surface water Park area called Westwood recreation adjacent municipal motions (the filed defendants municipal The park). 619(a)(9) of the Code dismiss, to section pursuant 2— (West 619(a)(9) (735 1994)), ILCS Procedure Civil 5/2 — im entitled to they that were alleging of the Local Governmental munity section 2—201 under (the Immunity Act Tort Employees and Governmental 1994)). Act) (West (745 Page The Du ILCS 10/2 —201 defendants’ municipal the County granted circuit court affirmed. No. dismiss, and the court appellate motions Court Supreme order (unpublished 2—99—0009 23). for leave petition the granted plaintiffs’ We Rule 315) (177 now reverse. Ill. 2d R. and appeal

I. BACKGROUND alleged complaint negligence, 20-count The taking claims trespass and and unlawful ipsa loquitur, res complaint, In their the against municipal defendants. they single-family own a residence plaintiffs alleged the defendants According plaintiffs, in Darien. to the park property designing planning and started 1992. Darien and Grove March between Downers architects, defendants Together engineers and with Plan,” Development depicting a “Landscape produced water, as well as drainage of surface subsurface affecting the property elevation of the changes approved The Darien Park District natural flow of water. by the conjunction imposed with plan requirements Page Grove and Du City Darien, Village of Downers defendants, through County. to the plan, Pursuant contractors, drainage and constructed a storm water system to water from the environs detention restrict flowing prevent water from development park in its natural course. “a owed

duty to the provide Plaintiffs to adequate drainage for the passage water around Plaintiffs’ and/or property and not to alter the natural flow water so as to cause water to back-up and flood real Plaintiffs’ estate and residence.” The further that the defendants knew or known, should have when they ap- the proved park that plans, the alterations in the natural flow of water would cause flooding problems neighbor- ing According residents. to the plaintiffs, the defendants duty breached this by failing design, plan, supervise, observe, manage or properly the construction of West- wood Park. The plaintiffs specified several in the defects construction, park including an insufficient storm water (1) drainage system groundwater alters the eleva- (2) tion; (3) the water; restricts natural flow of diverts water from adjoining onto property plaintiffs’ the property.

The plaintiffs charged that negligently the defendants flooding caused plaintiffs’ property on the and that failed to negligently correct the defects park design and placed construction “after being notice that use of those public improvements have [sic] created conditions that are not safe.” reasonably The plaintiffs that, asserted before year project was completed, they suffered no flooding. In their trespass/unlawful taking counts, plaintiffs alleged the park construction has caused and still causes flooding on their property. “continuing This trespass,” a purported water, “constant diversion” of has robbed “peaceable them enjoyment, occupation, posses- sion, and use their residence” and lowered the value property. of their dismiss, pursu-

The defendants each filed motions 619(a)(9) ant to section of the Code of Civil Procedure 2— (735 619(a)(9) (West 1994)), ILCS asserting that 5/2 — plaintiffs’ claims barred were defendants’ affirmative Act 2—201 of the defense (West 1994)). (745 September On ILCS 10/2 —201 claims plaintiffs’ dismissed 1998, the trial court District, Darien, and Downers Park the Darien against Act, govern providing 2—201 of under section Grove liability for acts immunity from entities with mental an a determination arising from omissions (West 1994); 745 ILCS of discretion. exercise 10/2 —201 Partnership, Street Ltd. v. 161 North Clark Harinek trial 3, 1998, the On December Ill. 2d reconsider, stating: motion to court denied the trying than could be more “[W]hat reconfigured to ac- going to be landscape is decide how mean, put I park they that wanted to here? this commodate definition, discretionary it? by isn’t almost that’s change the you’re going to You have to decide how going reconfig- to you’re how landscape. You have decide do park of water because doesn’t ure the surface flow any good if it’s under water. table decides how everybody

And so sits around the judgment as to going to this and what’s our best are we do a minimum amount design should this so it does how we damage surrounding properties and redirects to the waters, park of the that we can build this surface flow so here. apply I the ad discretionary more than that? If

What’s facts, I not conclude that test to these how do hoc discretionary design park of this was function?

* * * taking I think that the facts as even indulging true and all reason- complaint [szc] as my plaintiff, in favor of the able inferences therefrom facts to be drawn from those this is conclusion municipalities function on behalf of which, fact, under 2—201.” immunizes them therefore against pending other counts remained Because defendants, its dismissal the trial court found that private Darien, and District, Darien Park was final to the as just Downers Grove and that there no was reason to or delay enforcement appeal pursuant Supreme Court (155 304(a) 304(a)). Rule Ill. 2d R. On January 21, 1999, the court dismissed the claims plaintiffs’ against Page Du County under section 2—201. This order also contained 304(a) Rule language.

The appellate court affirmed the trial court’s dismiss- als, that the holding enjoyed immunity defendants section 2—201. The appellate court in pertinent stated part as follows:

“Defendants, through employees, skill, their used their judgment, ultimately their discretion to consider the design park, of the its landscaping, type and the Employees defendants, construction. in each of their respective municipal capacities, competing balanced determining interests when whether and how the flow of water should be directed and restricted. Act provides entities, of public such defendants, which, through their employees, exercised judgment they and discretion when determined how design, plan, supervise, observe, or manage construc- Therefore,

tion Westwood Park. any adop- the extent plan tion of a design the construction Westwood damages, Park caused the Act precludes recovery from defendants.” No. 2—99—0009 23). (unpublished Supreme order under Court Rule We allowed plaintiffs petition for leave to appeal. 177 Ill. court, R. 315. Before this plaintiffs argue that trial and appellate courts 2—201 misapplied section of the follow, Act. For the agree reasons we and reverse.

II. ANALYSIS In us, the matter parties before the dispute whether the circuit court properly granted defendants’ section 619(a)(9) plaintiffs’ motions to complaint dismiss 2— the basis that section 2—201 of the Tort Immunity Act completely liability immunized defendants from for the complaint. acts and omissions stated plaintiffs’ Ac- cording plaintiffs, to the circuit court improperly

367 did not defendants complaint their because dismissed “discretionary” were alleged actions establish that their 2—201. Defendants of meaning section the within plain- dismissed properly the circuit court counter 619(a)(9) because, section complaint tiffs’ 2— of water not to alter the natural flow despite duty their im- land, entitled to they are absolute onto another’s respect with munity all of their decisions regarding Park because the and construction Westwood planning of discretion. Accord- all involved exercise decisions within squarely actions fall ingly, argue, immunity provided under section purview For the reasons discussed disagree. 2—201 of the Act. We below, improperly court dismissed hold that circuit we municipal claims defendants. these 2—619 motion to dismiss is purpose

The easily law of fact dispose proved of issues of issues Gibson, Ill. Zedella 2d litigation. outset v. (1995). 619(a)(9) 181, Specifically, section 2— involuntary dismissal permits Code Civil Procedure “the claim defendant is barred against where asserted of or avoiding legal affirmative matter effect other (West 619(a)(9) defeating the claim.” 735 ILCS 5/2 — “ 1998). 619(a)(9) matter,’ in a An ‘affirmative section 2— a defense which motion, something the nature of completely ***.” Illinois negates the cause of action (1994). Nickum, 2d v. Ill. Graphics Co. legal sufficiency moving party thus admits other complaint, but an affirmative defense or asserts & 103rd plaintiff’s matter defeat claim. Kedzie Hodge, Inc. v. 2d Currency Exchange, (1993). Act is affirmative matter Immunity under the an 619(a)(9) raised in a motion to properly section 2— 186, 167 District Springfield dismiss. Bubb School a court rules on a section When dismiss, interpret plead- 2—619 it “must all motion to 368

ings supporting light documents most favor nonmoving able In re party.” Chicago Litiga Flood (1997). tion, 179, 176 Ill. 2d 189 Our review of 2—619 dismissal de novo. v. Board Epstein Chicago (1997). 370, Education, 178 2d Ill. 383 1959,

In this sovereign immunity court abolished from tort claims for municipalities. Molitor v. Kaneland (1959). 302, Unit No. Ill. 2d 11 In Community District 18 1965, the Assembly responded by enacting General Local Governmental and Employees Governmental Tort Immunity Skokie, Act. Zimmerman v. Village 183 Ill. (1998). 30, 2d 43 The 1970 Illinois Constitution validated both Molitor and Act. Harinek v. 161 North Clark 335, Street Ltd. 2d Partnership, (1998); 181 Ill. 344 see 1970, XIII, § Ill. Const. art. 4 as the (“Except General Assembly may by law, provide sovereign immunity abolished”); Comment, this see State is also Illinois Tort A Claims Act: New Approach Immunity Tort Municipal (1966). in Illinois, 61 U. L. Rev. Nw. 265 The Act local protect public serves entities public employees liability from the arising opera 101.1(a) (West 1998); government. tion of 745 ILCS 10/1 — Epstein, By immunity, see 178 Ill. 2d at 375.1 providing Assembly sought prevent General the dissipation Bubb, funds on damage tort cases. See awards duties; 167 Ill. 2d at 378. The Act does not create new “ rather, it ‘merely existing codifies those duties at com mon to which the immuni subsequently law[ ] delineated ” apply.’ Village ties v. CDG Bloomingdale Enterprises, Inc., (2001), 196 2d quoting Ill. Barnett v. Zion (1996). District, Park Ill. 2d Since the Act in derogation law, was enacted of the common it be must strictly Snyder Township, construed. Curran immunity provision ap- Unless an parties 1The are dispute do not all local (West 1998). public entities under the Act. See 745 ILCS 10/1 —206 extent municipalities the same plies, in tort to are liable parties. 2d at 386. private Barnett, See plaintiffs, amended in their bar, In the matter substantially allege complaint, conduct on identical relating municipal defen part to the defendant each development planning and in the dants’ involvement plaintiffs respect defendant, each to Park. With Westwood duty their defendants “breached that the assert change allowing causing by natural a groundwater to occur groundwater and flow of elevation gather adjoining resulting lands from in water flooding plaintiffs’ property real plaintiffs’ and bears law, a landowner At common and residence.” estate duty of surface water natural flow to increase the a not Temple adjacent property landowner. See of an onto the (1974); Cooper, 134, 141 Daum Huss, Ill. 2d ton v. (1904); generally Ill. L. & Prac. 391, 397-98 see 208 Ill. (“an (1958) legal right upper § no landowner has 3, at 53 any discharge estate on to a servient to collect and naturally in the not flow water which would surface § estate”); Ill. L. Prac. & direction of the servient (1958) may (stating “[a] that landowner at 55-56 damages suffered to recover the maintain an action improperly drains surface him another landowner where chancery also ***eAnaction in will onto his land. water draining improperly enjoin property from owner lie to injury land to the onto another’s surface waters latter”). duty equally private applies This commonlaw entity Accordingly, public a local landowners. duty the natural not to increase a common law bears adjacent property of an water onto the flow of surface landowner. inquiry, After deter- however, is not concluded.

Our duty mining next address whether exists, we must that Immunity provisions immunize the Act of the Tort liability municipal in the matter at bar duty. stated, for munity breaches of this As the Tort Im “ adopted general principle Act ‘local governmental [li units are liable in tort but limited this ability] with an extensive list immunities based on ” specificgovernment Zimmerman, functions.’ 183 Ill. 2d quoting Burdinie, at Moreover, 139 Ill. 2d at 506. duty immunity “the existence of a and the existence of an separate are Barnett, issues.” 388. The question thus becomes whether the Act insulates the defendants from the viable common law tort Village Bloomingdale Enterprises, See claims. v. CDG (“to (2001) Inc., 196 Ill. 2d determine whether entity [an] duty, is liable of a breach we look to law”). Immunity Act, the Tort not the common Because governmental operate the immunities afforded to entities defense, anas affirmative those entities the burden bear properly proving raising only governmental ItAct. is when the entities have plaintiff’s right recovery met this burden Zimmerman, barred. 44; Bubb, 183 Ill. at 2d 167 Ill. 2d at 378. appellate

The trial and held courts that defendants finding burden, here met that that section 2—201 provides immunity in this case. Section 2—201 extends significant protection public employ the most afforded Liability Baum, ees under the D. Act. Tort Local of Employees: Governments Their An Introduction Immunity Act, 981, the Illinois U. 1966 Ill. L.F. 994. Ac cording to section 2—201: Statute,

“Except provided by as otherwise a in employee serving position involving a the determination or the exercise of discretion is not liable for an injury resulting determining his act or omission in acting in policy when exercise such discretion even (West 1998). though 745 abused.” ILCS 10/2—201 extensively scope We first discussed immunity Snyder Township, 2—201 in v. Curran

371 (1995). plaintiff Snyder, of her control lost In 2d 466 top sharp of a at the a turn encountered she van when Township plaintiff hill sued Curran a rural road. warning sign place negligent before failure for its conformity Code, the Illinois Vehicle with in the curve township under section claimed and the jury appeal favor from a verdict 2—201. On appellate plaintiff, 2—201 that section court held Township, immunity. Snyder provided v. Curran (1994). App. appellate observing that the reversed, court

This impermis on an “rested erroneous conclusion court’s discretionary immunity.” sibly expansive definition rejected appellate Snyder, at 167 Ill. 2d 472. We reasoning specific statute, or that, rule, unless court’s legal conduct, a course of mandates a certain order any given government action as official can characterize liability and, therefore, immune from recognized Snyder, that: Ill. 2d at 473. tort. We discretionary and ministerial “the distinction between formulation, and that the determi precise functions resists must discretionary or ministerial nation whether acts are Indeed, case-by-case [Citations.] on a basis. be made and more or ‘finespun distinction is Prosser notes that this *** to conceive of “It be difficult less unworkable. would *** discretion any act that did not admit some official only the performance, if it involved the manner of its even ’ ” 474, W Snyder, quoting Ill. 2d at driving of a nail.” (4th quoting Ham 1971), 132, Prosser, § ed. Torts 988-90 E County Angeles, Los App. 46 Cal. “discretionary” defined the terms We then “ministerial” as follows: unique are

“[Discretionary acts are those which public office, are those particular ministerial acts while in a given a of facts person performs a state which legal mandate manner, in to the prescribed obedience of authority, and the official’sdiscretion reference to without Snyder, added.) (Emphases as propriety to the the act.” 167 Ill. 2d at 474. See also Harinek v. 161 North Clark Street Ltd. Partner

ship, Snyder We concluded in township’s properly that the duties were more character ized as ministerial because the placement warning signs: Code Vehicle dictated *** “Where tailored statu tory regulatory guidelines place certain constraints officials, on the decisions a court should be reluctant falling wholly to label decisions outside the established ” parameters ‘discretionary.’ Snyder, 167 Ill. 2d at 474. question

In Harinek, this court addressed of first impression respect to 2—201 with section of the Act: we requires considered whether section 2—201 entity prove that a its act or omission is both an exercise policy discretion and a determination before applies. question in We answered this the affirmative. plaintiff The Harinek was an office worker who injured during planned that she was an office fire drill Chicago’s City and cording conducted fire Ac marshal. plaintiff, during to the fire drill the marshal negligently large including group people, directed a plaintiff, vicinity heavy, of a stand window plaintiff injured result, less door. As a was hit and opened warning. when someone the door The without plaintiff alleged that also the fire marshal had acted will fully wantonly placed because he had been on notice group that the area he where directed the to stand was purpose. Harinek, unsuitable for that 181 Ill. 2d at 338. City’s granted The circuit court motion to dismiss plaintiffs complaint ground City on the that the was liability immune from 2—201 Act. appellate holding reversed, court that section 2—201 liability City did not fire insulate because the “directing plaintiff marshal’s conduct stand behind though discretionary, door, is not determina- meaning City tion within the of the Act.” Harinek v. (1996). Chicago, App. 491, 283 Ill. 3d plain that, This court reversed. We held under the language immunity 201, of section will not attach un 2— plaintiffs injury performed less results from an act public entity determining policy or omitted exercising in and Harinek,

discretion. 181 Ill. 2d at 341. Accord ingly, dual-prong inquiry this court conducted a with respect to whether section 2—201 attached. allegations plaintiffs First, we held that in the complaint and described acts omissions of the fire determining department policy. in marshal fire notedWe “ previously ‘policy court had this defined decisions ” “ by municipality’ made ‘those decisions which require municipality competing to balance interests judgment and to make a call as to what solution will best ” serve each of Harinek, those interests.’ 181 Ill. quoting Kirkham, West 147 Ill. 2d allegations held in

We Harinek that the in the complaint squarely fell within this definition:

“The fire responsible marshal for planning and conduct ing fire drills in City Chicago. In planning these drills, the marshall must balance the various interests may compete which for the time and resources of the department, including efficiency safety. and interests alleged acts and complaint, omissions outlined in the such as the regarding marshal’s decisions where to as participants semble the provide warning whether signs and routing, part alternate were all attempts his to balance these Accordingly, interests. these acts and omis determining sions were undertaken in policy within the meaning Harinek, of the statute.” 181 Ill. 2d at 342-43. question then turned We to the second of whether the acts of the fire marshal were within the meaning Snyder, of section that, 2—201. We observed in “ discretionary acts were defined as ‘those which are ” unique particular public Harinek, to a office.’ quoting Snyder, Applying 2d at 167 Ill. 2d at 474. case, in that held that the this definition to the facts we plaintiff’s fire marshal’s conduct as set forth an complaint constituted exercise of discretion: responsibility plan “The marshal bears sole and final ning executing buildings throughout fire drills in Chicago. legal perform He is under no mandate to these manner; rather, prescribed duties he exercises his how, when, in determining discretion and where to hold plaintiff injured.” drills such as the one which was Harinek, 181 Ill. 2d at 343. of the fire

Accordingly, because acts and omissions in the plaintiffs complaint marshal were both discretion, and an determination of exercise of sec- 2—201 of Act immunized the City liability. tion the from again discretionary immunity

This court addressed 2—201 in In Chicago under section re Flood Litigation, dredging 176 Ill. 2d 179 Flood involved a Chicago by City Chicago replace bridge hired the company clusters. were piling Numerous downtown businesses Chicago flooded when a tunnel wall under the River was A during pile driving. plaintiffs breached class sued the and the dredging company City. plaintiffs alleged driving; that the failed to the failed to City supervise pile maintain, repair, protect and the tunnel before and after breach; the the and failed to warn the about after the The trial danger learning flood breach. court City’s immunity grounds denied the motion to dismiss on review, questions including and certified several for the Act from the City whether shielded City’s supervi claims. The court held that appellate pile driving discretionary sion of the was under section 2 —201. court, noting the common appellate We affirmed discretionary law distinction between ministerial Flood, The plaintiffs acts. 176 Ill. 2d at 193-94. Chicago plan that once the argued City approved pile-driving and the liable City its actions became ministerial became Flood, 176 Ill. 2d at negligent supervision. Chicago that disagreed, holding City’s 194-95. We broad supervisory power dredging company’s pile over the driv City act retained ing was because in pilings any broad contractual “discretion to locate the thought Flood, location it best.” Ill. 2d at Chicago 195.

In Harrison v. Hardin Unit County Community (2001), School the plaintiff District No. injured she collided with a school student high was when who lost control of his vehicle as he drove home from school in inclement weather. Plaintiff sued the school alleging district its acted personnel willfully wantonly in refusing request student’s to leave school early he getting because feared into an accident due to heavy snow. The school district moved to dismiss the plaintiffs complaint on the basis that it immunized was liability 2—201 began of the Act. We analysis by our reiterating holding our Harinek that section 2—201 requires acts omis sions committed by municipality must be “both a determination of and an exercise of discretion.” Harrison, Harinek, 197 Ill. 2d at citing 2d at 341. The parties agreed Harrison that the decision the school principal request to refuse the student’s early nature, leave school was “discretionary” because “ his actions were ‘those are unique particular which to ” Harrison, office.’ Ill. 2d at quoting Sny der, However, 167 Ill. 2d at 474. the parties disagreed as to whether the principal determining policy was when he request. denied the student’s Harrison,

In repeated prior we our statement “policy that require governmen [are] decisions those entity employee tal competing balance interests judgment to make a call as to what solutions will best Harrison, serve each of those interests.” 197 Ill. 2d at presented, 472. Under the facts that the we found school principal competing [the had to “balance the interests of early student’s] desire to leave before the weather orderly worsened with that of the school’s in an interest along possibility dismissal, with the that if one student early every then, in future, was dismissed student early. principal] [The would want leave then had to judgment perform make a as to how best his duties as principal and find a solution that best served all of these Accordingly, Harrison, interests.” 474. we principal held that the actions of the school constituted policy meaning determinations within the of section Harrison, 2—201. 197 Ill. 2d at 474.

Finally, Community in Arteman v. Clinton Unit (2002), School District No. 198 Ill. 2d court this provide held that a school district’s not to in decision skating safety equipment line to students awas discre tionary policy determination immunized under section arriving again In determination, 2—201. at this we once immunity requires reiterated that section 2—201 the act or omission be both a determination of quoted again discretion, an exercise of and once “ Snyder ‘discretionary the definition that are acts those ” unique particular public which are to a office.’ Arte quoting Snyder, man, 484-85, 198 Ill. 2d at 167 Ill. 2d at 474. precedent mind, in

With our section 2—201 we now present us, turn to the case. In the matter before legal sufficiency plaintiffs’ including plaintiffs’ action, allegations that defendants acted concert to achieve objective building Park, admitted Westwood 619(a)(9) defendants’ section dismissal motions. 2— separate Nevertheless, dismiss, motions they liability absolutely asserted that were immune from Immunity Act, under section 2—201 of the Tort because allegations plaintiffs’ complaint acts or involve

377 stated, are nature. As that omissions 619(a)(9) of al the Code Civil Procedure of section 2— involuntary of a claim where dismissal lows avoiding by affirmative matter the claim is “barred other defeating legal claim.” ILCS the effect of or the 735 5/2— (West 1994). 619(a)(9) Immunity the from suit under properly Immunity Act Tort is an “affirmative matter” 619(a)(9). Bubb, Ill. 2d at under section 167 raised 2— the matter” as It is well settled that “affirmative 378. apparent by face of the defendant on the serted must be supported complaint; otherwise, the motion must be evidentiary Ep affidavits or certain other materials. Chicago Education, 370, stein v. Board 178 Ill. 2d 383 of (1997); Currency Exchange, Inc., Ill. & 103rd Kedzie 2d 116. Once a defendant satisfies this initial burden at 619(a)(9) going forward on the section dismissal 2— plaintiff motion, the then to the to establish burden shifts “ requires ‘unfounded or the resolu defense material it is tion proven.’ an essential element of fact before ” quoting Epstein, & 178 Ill. 2d at Kedzie “ Currency Exchange, ‘If, Inc., 156 Ill. at 116. 103rd considering pleadings trial affidavits, after carry plaintiff judge has finds failed to may going forward, motion be shifted burden ” granted Epstein, cause of action dismissed.’ Currency quoting at Kedzie & 178 Ill. 2d 103rd Exchange, Inc., 2d at 116. Because a dismissal Ill. 619(a)(9) grant mo of a under section resembles 2— summary judgment, appeal a section tion for an 619(a)(9) appeal an dismissal is the same nature as 2— judgment, following grant summary and is likewise Epstein, 383; 178 Ill. 2d Kedzie de novo afforded review. Currency Exchange, Inc., & 2d at 116. The Ill. 103rd “ reviewing ‘the existence court must consider whether precluded genuine fact have of a issue material should or, fact, an issue of whether the dismissal absent such ” proper Epstein, dismissal is as a matter of law.’ quoting Currency Exchange, 2d at & Kedzie 103rd Inc., Ill. 2d at 116. Village matter,

As an initial we note that defendant Grove Downers filed with this court a motion to strike plaintiffs reply pursuant brief, section I of (188 341(g) to our Rule 341(g)). 341(g) provides

Ill. 2d R. Rule that reply strictly arguments the brief “shall be confined to presented appellee.” According in the brief the to the Village, plaintiffs’ reply presents, I section of for brief argument time, the first the that section 2—201 of the Immunity apply Tort Act not to should defendants alleged because the tortious acts at issue were not “discretionary” they “unique” in that were not to the particular public government offices entities Village “unique involved. that a asserts this to particular public argument appear in office” does not any by and, brief filed in defendant the action instant plaintiffs’ reply therefore, section I confined is not strictly arguments presented responsive the in the appellees. directing briefs of This court entered order an that this motion be taken with the case. deny Village’s

We now motion strike I plaintiffs’ reply respective response In their brief. argue briefs, defendants their that actions were “discre tionary” meaning within the of section 2—201. This repeatedly “discretionary” court has defined actions “ purposes immunity ‘unique of section 2—201 actions as ” particular public Arteman, to a office.’ 198 Ill. 2d at quoting Snyder, 484-85, 474; Harrison, 167 Ill. 2d at 472; Harinek, Furthermore, Ill. 2d at 2d at 343. that, court, record discloses the circuit presented argument specific and defendants “unique” particular whether to the actions were plaintiffs’ offices the defendants. that We hold reply respect discourse in their with to whether brief “unique” to the defendants’ actions were arguments particular public in answer to the officeswas were “discre actions advanced defendants tionary” meaning of section 2—201. within question of whether now turn the central

We adequately affirmative established their defendants immunity they to absolute were entitled defense Act. 2—201 of the under section claims made clear above, our cases have As have outlined we involving situations that there is a distinction between making policy of discre choice and the exercise required Municipal both defendants are to establish tion. under sec of these elements order to invoke Harrison, Arteman, 484-85; Ill. 2d at tion 2—201. Sny 472; 341; Harinek, 181 Ill. 2d at Ill. 2d at municipal der, at hand, Ill. 2d at 474. In the case have either element. failed to establish general, Regarding element, decision formulating plan park for the construction of a should require site-specific and the consideration of conditions balancing competing above, of interests. As discussed governmen requiring this held court has that decisions entity competing to make a tal to balance interests and judgment will those call as to what solution best serve meaning “policy are within the interests decisions” Harrison, 484; Arteman, 2—201. at section This 472; Harinek, 197 181 Ill. 2d at 342-43. Ill. 2d at by matter” defendants to defeat “affirmative asserted namely, claims, that defendants’ actions viable policy decision, and is not omissions were the result of apparent complaint. Epstein, 178 the face See Currency Exchange, Inc., 383; Ill. Kedzie 2d at & 103rd by supported at 116. Neither the assertion Ill. 2d evidentiary Ep other materials of record. See affidavit or Currency Ex 383; at & stein, 178 Ill. 2d Kedzie 103rd change, Inc., 156 Ill. 116. 2d at municipal have defendants likewise failed to alleged

establish that their actions or omissions were “discretionary” contemplated by section 2—201. As “discretionary” stated, this court has defined actions to “ ” ‘unique particular public be those to a office.’ Arte quoting Snyder, man, 484-85, Ill. 2d at 167 Ill. 2d at 474; Harrison, 472; Ill. Harinek, 2d at 181 Ill. 2d at unique alleged That 343. defendants’ activities were particular apparent their officesis neither on the face of complaint supported by nor affidavit other evidentiary Epstein, 383; material. See 2d at Currency Exchange, & Kedzie 103rd Inc., 156 Ill. 2d at 116. Immunity derogation

Because the Tort Act is in strictly against law, the common it must be construed Zimmerman, entities involved. 183 Ill. 2d at quoting Morris, Aikens 145 Ill. 2d Questions of material fact remain as to whether the municipal conduct defendants the matter at bar “policy “discretionary” was the result of a and decision” meaning within the We,therefore, section 2—201. hold that, bar, in the matter not met have 619(a)(9) burden, as set forth section of the Code 2— establishing Procedure, of Civil their affirmative defense section 2—201 of the Act.

III. CONCLUSION foregoing reasons, For the we hold that trial appellate finding courts erred that section 2—201 liability. insulates defendants’ conduct from We municipal hold that the defendants did not meet their 619(a)(9) burden under section of the Code of Civil 2— Procedure establish that their actions were result meaning of a decision within the Immunity Accordingly, 2—201 of the Tort Act. judgments appellate we reverse the of the trial and courts and remand this cause to the circuit court for further proceedings opinion. with consistent this and remanded.

Reversed part consideration no in the THOMAStook JUSTICE of this case. or decision dissenting: FITZGERALD,

JUSTICE Though majority trial court holds that the the (207 plaintiffs’ “improperly Ill. 2d the claims dismissed” question presented 367), it not the does answer namely, municipal are whether the this case: immunity of the Tort under section 2—201 entitled Immunity park-planning Instead, their decisions. Act for parties, majority any invitation from without plead into case from an case transforms this ing stretching procedurally it case, could not do what substantively give plaintiffs another do —remand majority’s day applaud in court. I conclusion While attempt equitable result a noble to achieve an legally plaintiffs, indefensible and this conclusion is both unnecessary.

By filing a motion to dismiss 619(a)(9) Procedure, the defen Code of Civil 2— dants

acknowledged have a viable tort (see Currency Exchange, & Inc. v. claim Kedzie 103rd (1993)), they Hodge, but also Ill. 2d matter” in the form of contended that “other affirmative 2—201 of the Act defeats a defense under section park-planning decisions were discre claim because their tionary. support their Because the defendants did not evidentiary question materials, thus motion with appears defense whether the this becomes existence complaint. Epstein See the face of the Chicago Education, Board majority here the defendants concludes 619(a)(9)] [under section failed to meet “their burden 2— establishing under the Act. affirmative defense” Following 161 North Clark 2d at Harinek v. 380. 382 (1998), Partnership, major

Street Ltd. 181 2d Ill. 335 ity major analysis. First, bifurcates its section 2—201 ity plaintiffs’ complaint states that the face of the does park-planning not indicate the defendants’ decisionswere “policy requiring competing decisions” them to balance choosing Second, interests before a of course action. majority plaintiffs’ complaint states that the face of the park-planning does not indicate the defendants’ decisions unique “discretionary” particular were of fices.

Though majority does not refer 619(a)(6) in its discussion the section 2—201 case 2— majority pleading law, the in effect raises the level specificityrequired before a court can find af- an “other complaint. firmative matter” defense on the face of the cursory a cases, Even however, examination of these sought reveals that we have never a close such connec- plaintiffs’ allegations immunity tion between the and the by the claimed defendants.

Snyder (1995), Township, v. Curran Ill. 2d 466 jury County trial, involved a and v. Hardin Harrison Community Unit School District Ill. No. 2d (2001), summary judgment motion, involved not sec 619(a)(9) Chicago tion motions to In In re dismiss. 2— (1997), Litigation, Flood Ill. 2d 179 which involved motions to dismiss under both section 2—615 and sec plaintiffs allege tion we stated that the not did 2— prescribed repairing there was a method for the tunnel notifying or for landowners of breach. We then its City “[T]he had observed: to make fol several decisions *** lowing tunnel its notice of the breach. All these City’s discretion, decisions were within the which af immunity against liability.” Chicago Flood, forded dissecting complaint, Ill. at 2d 197. Without we City’s simply concluded that decisions were discre tionary. our under refined Harinek, where we

Then came by holding standing that policy- municipal activities must be both defendant’s discretionary. plaintiff determining Harinek, the In department Chicago City fire implemented” operated, “planned, a fire controlled, plan, City’s pursuant marshall, to a fire and that the drill plaintiff positioned her that struck dur near door reviewing ing at 342. After Harinek, 181 2d the drill. they allegations, “describe we held determining fire fire and omissions the marshal acts 342) (Harinek, policy” department and “the clearly complaint in the conduct described fire marshal’s (Harinek, 181 Ill. of discretion” constituted an exercise 343). engage probing Again, a did not 2d at we complaint its the to determine whether examination of allegations implicated an defense sec concluding City’s that the activities tion 2—201 before discretionary. Finally, in Arteman v. Clinton Com were (2002), munity Unit School District No. 198 Ill. 2d discretionary policy pronouncement on our most recent immunity, briefly allegations referred to the of the we only background plaintiffs’ complaint, in the but opinion, and concluded the school district’s activities discretionary. were plead- majority apply the

Further, the does not even certainly ing complaint it here was no rule creates. The majority descriptive that in Harinek. As the than less correctly plaintiffs observes, the part substantially on the

“allege identical conduct relating to defendants’ municipal each defendant development of Westwood planning involvement in the and defendant, plaintiffs assert that respect Park. to each With duty the defendants ‘breached their change groundwater causing allowing a in the natural groundwater resulting to occur elevation and flow of plaintiffs’ property on adjoining gather lands water ” flooding and the real estate and residence.’ 207 Ill. 2d 369. plaintiffs alleged According fact, In much more. complaint, to their amended one or more of the defen- design planning dants “commenced the and for construc- park project; engineering tion” a retained civil project; “jointly firm and an architectural firm for the produced Drawings specifications” a Schedule of and or a plan project depicting drainage; for the water “caused to designed drainage be and constructed a storm water and *** system improvements [and other] detention to real approved plan accepted estate”; and improvements park; to the and were “otherwise involved design, planning, supervision, in the observation and/or management of this construction.”

Certainly, balancing compet- these activities involved ing making unique and interests decisions to these defendants. It defies reason to conclude that the defen- planned park implemented plan dants deciding among without

alternatives that these decisions unique were not to these defendants. else besides Who. City District, defendants here—the Darien Park Village County Darien, Grove, of Downers and the Page regarding park of Du make such decisions —would Page situated between Darien County? and Downers Grove Du allegations clearly These face describe discretionary policy decision, and the defendants were immunity. clearly majority Instead, entitled to concludes that this case should be remanded the trial municipal will, court where the in all likeli- delay, legally dispositive hood without file affidavits as- serting they competing balanced interests before choosing park plan activity unique and that this was plaintiffs they battle, offices.The have won this but ultimately will lose the war. majority’s unnecessary

The decision does violence to light plaintiffs’ ability pursue our in of law, case

385 have not Though plaintiffs of relief. avenues other relief, the Act which it, against injunctive for asked flooding municipal is available protection, no provides (West 1998); v. see Romano 745 ILCS cases. 10/2 —101 (1995) (a 406, Glenview, 3d 411 Ill. App. 277 Village of aon dig retaining ponds golf decision to municipality’s which property, homeowners’ plaintiff near the course interference an “unreasonable” flooding, resulted was subject not im rights and property homeowners’ with relief); v. Town Sumner injunctive from Salzman munity (1987) (an of 92, money 162 Ill. 3d 95 award App. ship, the natural diverting damages against municipality see also inadequate”); be flow of surface waters “would Barrington, Country Village Hills Club v. Barrington of v. 308 Ill. (1934); City Chicago, Ill. 11 Springer 357 of Ill. (1923); Point, v. 223 230 Village 356 Elser Gross (1906); Highways, v. Commissioners Young Woodstock, App. Ill. 3d (1890); Smith v. 17 City 569 App. 3d (1974); Village Capron, Larson v. 3 948 (1972). pleaded not Additionally, though have § 1983 are them, constitutional claims under U.S.C. Fritz, v. 119 Ill. App. the Act. See Firestone not barred (1983), v. citing City Chicago, Hampton (7th Rose, 1973); see also Howlett 484 F.2d Cir. 332, 353, 110 356, 376, L. Ed. 2d S. Ct. 496 U.S. private property flooding may an unconsti by a effect public improvement caused taking. tutional streets, it thinks city may depress or its

“A elevate if, doing, it a stream of mud and proper, but so turns grounds the cellars of one of its and into upon water stagnant citizens, neighborhood pond in his creates household, ground upon his what brings upon disease insisted, city should be excused can it be that the of reason directly wrought? injuries it has paying for the direct the city grade must streets and It is that the said 386 of

flow waters as best as it can of for interests public. Undoubtedly, public but if requires interest lot of an individual shall be rendered unfit for oc- wholly cupancy, part, either or in in this process grading of drainage, why or the public pay should not for it to the deprives legitimate extent to it of which the owner its use? Why provision apply does not the constitutional well to payment property secure the for partially taken for the use street, or wholly convenience of as when taken and *** converted into a To street? the extent which the deprived legitimate is owner of its use and so far as its is impaired, paid. value to that extent he should be *** In opinion, theory private rights our are ever to be to public necessity, sacrificed convenience or compensation, fraught without full danger, with *** lodgment should find no in American jurisprudence. * * * *** are why We unable to see of property an individual should be sacrificed for the convenience compensation. without We do not think it sufficient to call injuria. absque it damnum We our know Constitution was designed prevent wrongs. opinion, that, these areWe of injuries owner], done property [business to the of the by turning upon premises, a stream of mud and water his by creating neighborhood the immediate of dwell his ing pond, jury an offensive and unwholesome if the find *** done, things city respond these have been must Peoria, damages.” City 502, 510-11, v. 41 Nevins Ill. of 515 (1872) (“If Baker, Accord City Dixon v. 520 of can municipal corporations grade raise the of streets discretion, and not provide gutters carry suitable off water, the surface and thus abutting overflow lands streets, upon the with of impunity, then owners lots mercy in our towns and cities are at the entirely Keene, authorities of the v. municipality”); see Graham (1892); City Louis, 143 Ill. 425 Stack v. East 85 St. Ill. of (1877); 377 v. Brokaw City Bloomington Gregory, & 77 (1875); Reed, (1870); Ill. 194 v. City Aurora 57 Ill. 29 (1870); Drainage Gillett, Ill. 132 v. Aurora City of Ill. Valley, App. Green Village #1 v. District Ellyn, App. Village Glen (1979); Dwyer v. (1942) (abstract Auer, Highland op.); City Ratcliff, Private (1925); generally see G. Ill. 327 App. 235 U. L.F. Law, 1960 Ill. Drainage under Illinois Rights (“A change watercourse right no city has 208 any for an landowner being adjoining liable to without Roberts, Note, Liability Tort K. resulting damage”); Illinois, U. Ill. L.E Municipal Corporations (“The that a settled in Illinois to be well law seems works may not construct municipal corporation way to cause surface in such a improvements and substantially in a in a manner or to flow different water owners”).2 land of upon private increased quantity warp our case law short, majority need not In just give plaintiffs’ of the Act under section 2—201 2—201 Though second life. illusory tort claims an claims, injunc- pleaded tort properly bars claims could survive tive relief and constitutional the Act. I dissent. joins in this dissent.

JUSTICE GARMAN GARMAN, dissenting: JUSTICE also separately dissent. I write join Fitzgerald’s I Justice Fitzgerald I it is why agree with Justice explain See, damage. e.g., be 2The State also would liable such (“one (1977) State, Branding Ill. who v. Ct. Cl. property of an negligently natural flow of water on alters the landowner, thereby adjacent causing damage, is liable to such abut (1993); State, landowner”); Ct. 45 Ill. Cl. ting Eckmann v. State, (1977); State, Mount v. Vickroy v. 31 Ill. Ct. Cl. 489 (1963); (1977); State, Shilling 24 Ill. Ct. Cl. 395 Cl. 299 v. Ct. (1956); Herget State, also National 22 Ill. Ct. Cl. 314 see Doerr Kenney, 105 Ill. 2d 405 Bank Pekin v. complaint clear from the face of the that the defendants immunity. were entitled to majority apparent

The holds that it not on the face (1) complaint that the defendants’ actions were (207 379) (2) policy the result of a decision Ill. 2d at (207 380). complaint alleges The planned park that the defendants and built a that now flooding plaintiffs’ property. allegation causes The planned park clearly that the defendants and built a entails that the defendants’ actions were the result of discretionary. decisions were majority correctly requir states “decisions ing governmental entity competing to balance interests judgment and to amake call as to what solutions will ‘policy best serve those interests are decisions’ within meaning of section 2—201.” 207 Ill. 2d at 379. The majority planning park require also states that “should site-specific consideration conditions and the balancing competing interests.” 207 Ill. 2d at 379. majority apparent When the concludes that it is not complaint park face the policy that the was a result of although planning decisions, that, it assumes a park require balancing competing should interests, it need not. (or assumption Planning park

This is mistaken. an a airport any project) obviously other substantial weighing competing involves interests and therefore always policymaking. park involves The fact that was planned means that someone made a conscious decision. Making a conscious decision means that some interests weighed heavily were more than others. planning weighing competing

Because means inter- ests, it is not clear what more the defendants must show they they to establish that made decisions when planned park. enough simply Is it to file affidavits they they planned that assert the obvious fact that when competing that our weighed I am concerned interests? by misinterpreted today may courts to mean be decision 2—201 under section is not immune that a defendant duly weighed the that he he shows unless important that section to in mind It bear is interests. good-faithpolicy very immunizes terms, all its 2— is discretion, even if the discretion that involve decisions App. Village Homewood, 285 Ill. v.White abused. See majority ‘discretion “defined that we have states ‘ particular public “unique ary’ to a be those actions to ’ ” quoting Arteman, 198 Ill. 2d 2d at office.” 207 Ill. Snyder, quoting 474. then 167 Ill. 2d at It 484-85, apparent face from the it not holds that complaint were defendants’ activities that the particular unique 380. 207 Ill. 2d at to their offices. Although agree activities the defendants’ I whether agree unique relevant, I do not to their office is were provides their actions that it the sole test whether discretionary. were phrase “unique particular first used

We acts under section office” describe Township, Snyder Ill. 2d 466 v. Curran 2—201 in (1995). There, however, that Curran we concluded place sign warning Township’s of a curve in failure to conformity act Manual was ministerial with State part, subject due, the fact that not regulatory statutory guidelines placed certain Snyder, of officials. constraints on decisions 2d at 474. majority Snyder, In re discusses

In addition to (1997), Chicago Litigation, Ill. 2d Harinek Flood Partnership, 181 Ill. 2d Ltd. v. 161 North Clark Street Community (1998), County Unit v. Hardin Harrison (2001), and Arte 1, 197 Ill. 2d School District No. Community District No. Unit School man v. Clinton (2002). Chicago City Flood, 198 Ill. 2d 475 In (the Chicago City) Dredge hired Great Lakes and Dock (Great Lakes) Company replace pil to remove wood ing city bridges. City clusters at several noted in the pilings specified contract that the were to be located at positions prevent damage underground serious pilings Lakes, however, structures. Great installed the bridge originally designated one in a location other than in the contract. This caused a breach the wall of an underground freight tunnel, which resulted the flood ing of numerous downtown businesses. determining City

In whether the was immune municipality Act, 2—201 of we noted that a “ adopts plan exercises discretion ‘when it selects making public improvements, in the such as construct ing ministerially [it when] drains; sewers or but acts it *** begins carry plan out that and is bound see that reasonably the work done in a safe and skillful man ” Chicago quoting City Flood, ner.’ 176 Ill. 2d at Chicago Seben, 377-78 con We City cluded that the was immune under section 2—201 it because retained discretion to determine location pile drivings plaintiffs and because the to al failed lege prescribed repairing method for the tunnel and warning Chicago of the tunnel breach. finding City’s Flood, 176 Ill. 2d at 196-97.In actions liability, thus, and, to be immune from we unique City. did not discuss whether the acts were to the In Harinek v. 161 North Clark Street Ltd. Partner ship, (1998), Ill. 2d we whether discussed City Chicago conduct of fire marshal involved the exercise of discretion under section 2—201. The com plaint alleged that a decision the fire marshal about negligent. how to a fire Harinek, conduct drill was concluding Ill. 2d at 338. In the fire marshal discretion, exercised his “The we stated: bears marshal executing planning responsibility for final sole and Chicago. throughout buildings He is fire drills in prescribed perform legal in a these duties to no mandate in determin rather, his discretion manner; he exercises ing the such as one to hold drills how, when, and where injured.” at plaintiff Harinek, Ill. 2d in which was Certainly, point bears sole the fire marshal the that 343. question goes responsibility to the for fire drills only uniqueness uniqueness. basis for not the But was holding. is not the marshal that our We also observed deciding any by legal to hold how mandate constrained the drills. Community County Unit

In Harrison v. Hardin (2001), 2d 466 we were 1,No. 197 Ill. District School upon the school district was im to decide called whether allegedly by liability injuries caused mune from high principal’s to not allow a student decision school early driving inclement home in school avoid leave Snyder Although quoted from we the sentence weather. discretionary are which are acts those that states unique question office, made clear that the we also discretionary principal’s not was action was whether agreed parties us that it was discre before because tionary. Harrison, 197 Ill. 2d at 472.

Finally, Community Unit in Arteman v. Clinton (2002), held No. 198 Ill. 2d 475 we School District provide roller- a school district’s decision not to safety equipment both a decision and was blade language discretionary. Again, although quoted we Snyder, apply it to conclude that we did not Rather, we followed exercised discretion. school district opinions appellate that held that court several safety equipment provide decision not school district’s discretionary. Arteman, 2d at 485. Arteman was appellate primarily with whether concerned was law it held that common court was mistaken when duty provide necessary reasonably of school districts to safety equipment trumps immunity provided by sec (Arteman, 487), tion 2—201 Ill. 2d not with whether the defendants were immune. majority

Thus, in none of the cases discussed have we decided whether an action was solely unique based on a determination of whether it was proper inquiry to the actor’s office.I would hold that the is the one we followed in Harinek to hold that the fire discretionary. marshal’s actions were Harinek, 181 Ill. 2d at 343. First we should ask: Where does the officialwhose challenged hierarchy action is stand the relevant responsi decisionmakers? Did he bear the sole and final bility question, for the decision in or was his decision to subject approval by act as he did to review and others? higher the officialstood in the relevant chain of com likely mand, the more it is that he acted with discretion purposes prong for the of section 2—201. This inquiry captures “uniqueness” actually what means as applied in Second, Harinek. we should also ask to what question subject legal extent the official in was to a prescribed mandate to act in a manner. The less his by legal freedom to act was restricted mandate, the more likely purposes it is that he acted with discretion for the of section 2—201.

Applying inquiry case, this to the facts of this I would apparent complaint hold that it is from the face of the discretionary. that defendants’ actions were Their deci- respect park subject sions with to were not to review by any higher approval they decisionmaker, nor were required by legal adopt any particular plan mandate to plan. or kind of respectfully I reasons,

For these dissent. joins JUSTICE FITZGERALD this dissent.

Case Details

Case Name: Van Meter v. Darien Park District

Court Name: Illinois Supreme Court

Date Published: Oct 17, 2003

Citation: 207 Ill. 2d 359

Docket Number: 90541 Rel

Court Abbreviation: Ill.