Ponto v. Levan

ILLINOIS OFFICIAL REPORTS

Appellate Court

Ponto v. Levan, 2012 IL App (2d) 110355

Appellate Court DENISE PONTO, Plaintiff-Appellant and Cross-Appellee, v. DALE

Caption LEVAN, Defendant and Third-Party Plaintiff-Appellant and Cross-

Appellee (The City of Dixon, Third-Party Defendant-Appellee and Cross-

Appellant).

District & No. Second District

Docket No. 2-11-0355

Filed June 27, 2012

Modified upon denial

of rehearing August 8, 2012

Held The expiration of the one-year statute of limitations in the Tort Immunity

(Note: This syllabus Act barred plaintiff from adding third-party defendant city as a defendant

constitutes no part of in her action against an intoxicated driver who slid on a patch of ice

the opinion of the court caused by the city’s negligently maintained water main and struck her car,

but has been prepared and with regard to defendant driver’s timely third-party complaint against

by the Reporter of the city, the city was not entitled to assert immunity for the discretionary

Decisions for the acts of its employees under the Act because no discretion was exercised

convenience of the in connection with the water main at the site of the accident.

reader.)

Decision Under Appeal from the Circuit Court of Lee County, No. 08-L-9; the Hon.

Review Daniel A. Fish, Judge, presiding.

Judgment Affirmed.

Counsel on David J. Brassfield and Erik E. Carlson, both of Brassfield, Krueger &

Appeal Ramlow, Ltd., of Rockford, for appellant Denise Ponto.

Esther Joy Schwartz, Theodore W. Pannkoke, Richard W. Schumacher,

and Mark A. Huske, all of Stellato & Schwartz, Ltd., of Chicago, for

appellant Dale Levan.

Stephen E. Balogh and Laura D. Mruk, both of WilliamsMcCarthy LLP,

of Rockford, for appellee.

Panel PRESIDING JUSTICE JORGENSEN delivered the judgment of the

court, with opinion.

Justices Zenoff and Hudson concurred in the judgment and opinion.

OPINION

¶1 Following an automobile accident, plaintiff, Denise Ponto, sued defendant and third-party

plaintiff, Dale Levan, alleging negligence, including that Levan drove while intoxicated.

Levan filed a counterclaim for contribution against third-party defendant, the City of Dixon

(City), alleging that the City’s negligent maintenance of its water mains created an ice patch

that caused Levan’s automobile to skid into Ponto’s vehicle. Levan admitted liability, and

a jury found in Ponto’s favor, awarding her $585,174.23 in damages and finding Levan 65%

at fault and the City 35% at fault. The trial court entered judgment on the verdict and found

that Levan was not entitled to contribution unless he paid more than his pro rata share of the

damages. Ponto and Levan separately appeal, and the City cross-appeals.

¶2 Generally, Ponto and Levan argue that Ponto should be allowed to collect the balance of

her verdict against Levan from the City, and, in its cross-appeal, the City argues that it should

have been allowed to assert the affirmative defense of discretionary immunity. The parties

specifically ask us to determine whether: (1) under section 2-406 of the Code of Civil

Procedure (Code) (735 ILCS 5/2-406 (West 2008)), the trial court erred in denying Ponto

leave to amend her complaint to add the City as a direct defendant more than two years after

she commenced her suit against Levan, when the third-party action against the City had been

commenced within the one-year statute of limitations contained in the Local Governmental

and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/8-101

(West 2008)); (2) a third-party defendant who is more than 25% at fault may be jointly and

severally liable to the plaintiff under section 2-1117 of the Code (735 ILCS 5/2-1117 (West

2008)); (3) the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/0.01 et

seq. (West 2008)) permits a third-party defendant to be shielded from judgment unless and

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until a third-party plaintiff has paid more than his pro rata share of the judgment; and (4) the

trial court improperly precluded the City from asserting immunity for the alleged

discretionary acts of its employees. For the following reasons, we affirm.

¶3 I. BACKGROUND

¶4 On February 2, 2008, at about 2:30 a.m., Ponto was driving south on River Road (Illinois

Route 2) in Dixon. Levan was driving his truck north. Levan’s truck slid into the southbound

lanes of traffic and collided with Ponto’s vehicle. Ponto sustained injuries. Levan was not

injured, but he was subsequently charged with operating his vehicle while intoxicated.

¶5 On February 29, 2008, Ponto sued Levan,1 alleging negligence and willful and wanton

misconduct. Levan denied the allegations. On February 26, 2009, Levan filed a third-party

complaint against the City, seeking contribution under the Contribution Act. Levan claimed

that, as he was driving downhill, around a curve, and onto River Road from the south, he

encountered a patch of ice created by a leaking municipal water main under the road. He

argued that the City failed to maintain the streets in a reasonably safe condition and that the

City had constructive notice of the particular defect–a leaking water main near 920 East

River Road, near the accident site–because of prior leaks under the road, some in close

proximity to the February 2, 2008, leak. Levan also argued that the road’s condition was

unreasonably dangerous and that prior water main leaks in the area put the City on notice that

additional leaks could occur.

¶6 On June 16, 2009, the City moved to dismiss (735 ILCS 5/2-619(a)(9) (West 2008)),

arguing first that it had no notice of the water main break until after the collision and, second,

that discretionary immunity under section 2-201 of the Tort Immunity Act applied because

it had approved a plan (i.e., an alleged discretionary act) to replace the water main at this

location.

¶7 On November 13, 2009, the trial court denied the City’s motion, finding that the

questions whether the City lacked notice and whether the City’s water department

superintendent was exercising discretion constituted factual questions for the jury.

¶8 On June 15, 2010, Ponto moved for leave to file a second amended complaint to add the

City as a defendant, seeking to argue that the City’s negligent maintenance of its water mains

resulted in an icy patch that caused the accident. She maintained that no prejudice would

result, because the allegations in her complaint were identical to those in Levan’s third-party

complaint. In response, the City raised the Tort Immunity Act’s one-year statute of

limitations. The trial court, on August 23, 2010, denied Ponto’s motion, finding that section

2-406 of the Code (735 ILCS 5/2-406 (West 2008)), which permits the addition of third-party

defendants, does not state that the statute of limitations is tolled for purposes of adding as a

codefendant to a plaintiff’s claim a third-party defendant.

¶9 Prior to trial, Levan filed an amended answer to Ponto’s complaint, admitting liability.

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She also sued Dennis Levan, the vehicle’s owner and Dale’s father. Subsequently, the cause

against Dennis was dismissed with prejudice.

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A jury trial commenced on November 15, 2010. Because some of the testimony relates to the

third issue on appeal (i.e., application of the Tort Immunity Act), we briefly summarize it.

¶ 10 Levan testified that he was intoxicated on the day of the collision and that he was at least

partly at fault for the accident. Several witnesses testified that on the roadway near the

accident site there was water and ice that came from a water main break. It was undisputed

that there was a leak in the water main under Route 2 near the location where Ravine Avenue

and East River Street meet and become River Road/Route 2. The accident occurred near 920

East River Road. Water from the leak was percolating through the road surface, causing a

freezing puddle about 10 feet across. Ponto’s theory as to the City was that the municipality

should have replaced the entire water main pipe (i.e., the River Street and River Road

portions) near the collision site.

¶ 11 Willard “Rusty” Cox, the City’s water department superintendent, testified that he

oversees the City’s water distribution system under the supervision of the director of public

works, Shawn Ortgiesen. Cox explained that he has a choice in how he maintains the City’s

water distribution system and considers competing interests such as cost, public safety, and

public convenience. Between 2006 and 2008, there had been nine water main breaks in the

area (from 400 East River Street to 920 East River Road), including one on October 26,

2007, that was 8 to 12 feet from the break that occurred at 920 East River Road on the day

of the collision. The City did not have in place any inspection system.

¶ 12 Cox further testified that the River Street and River Road projects were two discrete

projects. Based on the number of breaks, the City determined that the River Street water line

was faulty. On December 3, 2007, the City entered into an engineering agreement to replace

the pipe (only) on River Street (from Bunny’s Bait Shop to Crawford Avenue). (Before

entering into the agreement, no study was performed for either the River Street or the River

Road project.) A new pumping station near the collision site came on line in 2006. There

were no recurring leaks in the area prior to the new station. In March 2008, the River Street

portion of the pipe (between Bunny’s Bait Shop and Artesian Avenue) was shut down, but

the River Road portion was not shut down. The project was not urgent after the main was

shut off. The 2,000-foot River Street project ultimately took 18 months to complete instead

of 5 months because it was not urgent, Environmental Protection Agency approval was not

immediate, and there were issues with certain easements along a railroad right of way.

¶ 13 The River Road project was not included in the December 3, 2007, agreement, because

Cox did not believe there was an issue with the main there; he “didn’t think we had a

problem,” because there were no red flags before February 2008. The February 2, 2008, leak

near 920 East River Road occurred about 250 feet east of Bunny’s Bait Shop. Cox suspected

that a water hammer following a nearby fire caused an October 2007 leak on River Road.

Cox did not determine that the water main was faulty. It was not until Ponto’s accident that

it occurred to Cox that there might be recurring issues with the River Road main; thus, he

started taking action later that year. In Cox’s view, it takes four or five breaks before a call

for an evaluation is made to an engineering firm. At the time of Ponto’s accident, Cox did

not believe that there was a “big enough problem” such that the River Road main required

replacement. He and Ortgiesen decided in March or April 2008 that they needed to start

budgeting for that River Road pipe’s replacement. They also started the process of obtaining

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an engineering agreement. The second engineering agreement (i.e., for the River Road

project) was executed on November 3, 2008. That project was completed in just over one

year and cost $160,000. (The department’s 2008 budget was $1.8 million.)

¶ 14 Before the collision, Cox knew that the River Street pipe was in bad shape. Cox further

testified that he started becoming concerned about the River Road pipe in March 2008.

However, he testified at his deposition that he became concerned about the series of leaks

in September 2008. At trial, he explained that he became very concerned in September 2008,

but had been concerned earlier that year. Cox testified that, had he conducted inspections in

2006 and 2007 and discovered that the River Road water main was in bad shape, he would

have recommended to the City to have it replaced.

¶ 15 David Jacobson, an engineer and engineering consultant, testified as Levan’s expert

witness. He opined that the City knew or should have known that the water main under River

Road/Route 2, as well as that under East River Street, should have been replaced and that it

should have commissioned a study earlier than it did. The pipe was over 100 years old and

made of cast iron, which made it susceptible to corrosion from salt applied to the road above

it. These factors, plus the fact that the pipe had a few breaks in a confined area, were warning

signs that more breaks would occur. The specific underlying causes of the breaks were the

pipe’s age and corrosion. After the third water main break, the City should have

commissioned a study of the pipe; testing would have cost about $5,000 for a quarter-mile

of pipe (and taken about a week) and a few thousand dollars more for a consultant’s review.

If the pipe (up to a ¾-mile length) needed to be replaced, the process would have taken about

five months. Jacobson noted that the City did not ultimately commission a study, but entered

into two agreements to replace the pipe (December 2007 for the River Street portion within

the City limits and November 2008 for the out-of-town section/River Road portion). The first

project cost between $90,000 and $100,000. The second project cost $160,000. To the extent

the City has an inspection system, it focuses on the water, not the pipes. Jacobson conceded

that the primary concern in a water distribution system is the delivery of safe potable water.

In March 2008, Cox and Ortgiesen decided that there was a need to budget for pipe

replacement. Jacobson testified that the first time that Cox thought that the water main on

River Road might need replacing was after Ponto and Levin’s collision.

¶ 16 Ortgiesen, the director of the City’s public works department and the City engineer,

addressed the process and time for replacing the water main. He testified that, typically, the

process takes about five months to complete (from the time City approval is sought for the

project to the time the project is constructed, assuming weather is not a factor). In 2009, the

City replaced about 2,000 feet of water main in the 400 to 800 block of East River Street (the

ends were two natural termination points and the leaks had occurred within this area). There

were no leaks on River Road until October 2007. The February 2008 leak was the second

leak on River Road.

¶ 17 In late 2007 or early 2008, Ortgiesen and Cox first discussed the issue of the water main

breaks on River Street and investigated and ultimately ruled out a new pump house as the

cause. The River Street water main replacement project was completed in 18 months, not 5

months. Engineers shut off part of the section (in March 2008) that sustained breaks; it was

not servicing any residents or businesses in the area, “so we were able to hold off a little bit.”

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Projects are reviewed and are implemented based on the budget and other concerns,

including need. Ortgiesen conceded that the budget was not the only means by which projects

could be funded. Other funding sources included bond issuances; short-term loans; excess

funds; and special assessments. The River Road portion of pipe that was replaced after the

accident was a 1,000-foot portion, and the River Street portion was 2,000 feet long. The

December 3, 2007, engineering agreement addressed only the River Street project. At that

time, Ortgiesen did not have any discussions with Cox concerning whether to address the

main under River Road. “We never had reason to.”

¶ 18 During trial, the City moved for a directed verdict, raising its discretionary immunity

defense. The trial court denied the City’s motion. After the City rested its case, it renewed

its motion for a directed verdict. The trial court denied the motion on November 18, 2011.

¶ 19 On November 19, 2011, the jury returned a verdict, awarding Ponto $585,123.74 in

damages and apportioning fault at 65% to Levan and 35% to the City. Ponto and the City

subsequently cross-briefed the issue of the City’s joint and several and contribution liability.

Ponto argued that the joint liability statute imposes joint and several liability for both direct

and third-party defendants and that the Contribution Act, which must be applied after

assessing joint and several liability, does not conflict with it. Ponto noted that Levan’s

automobile liability policy limit was $100,000 and that he was judgment proof beyond that

amount. The City argued that the right of contribution existed only among tortfeasors and

that Levan had to pay before the City’s contribution obligation was triggered. It claimed that,

under the Contribution Act, Ponto could recover from only a direct, not a third-party,

defendant. The trial court, on January 26, 2011, agreed with the City and entered judgment

such that the City’s contribution responsibility was triggered “only at such time as *** Levan

has paid more than his pro rata share of the judgment to *** Ponto and only for that amount

paid to her which is in excess of his pro rata share of the judgment.”

¶ 20 Ponto (joined by Levan) moved the court to reconsider its order denying her leave to

amend her complaint to add the City as a direct defendant. She also asked that the City be

held jointly and severally liable to her for 100% of the total damages or, in the alternative,

that the City be held severally liable to her for 35% of the total damages. The City also filed

a posttrial motion, arguing that it was immune from liability for the discretionary acts of its

employees and officials. On March 30, 2011, the trial court denied the motions. Ponto and

Levan appeal, and the City cross-appeals.

¶ 21 II. ANALYSIS

¶ 22 A. Ponto’s and Levan’s Appeals

¶ 23 1. Leave to Amend

¶ 24 Ponto (joined by Levan) argues first that the trial court erred in denying her leave to

amend her complaint to add the City as a (direct) defendant. The City had argued that the

Tort Immunity Act’s one-year statute of limitations applied and that Ponto’s complaint was

untimely because it was filed more than two years after the accident. The trial court denied

Ponto’s request, finding that the one-year limitations period applied and that section 2-406

of the Code did not extend the period. For the following reasons, we find no error with the

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trial court’s findings and reject Ponto’s argument.

¶ 25 Amendments to pleadings are allowed on just and reasonable terms at any time before

final judgment. 735 ILCS 5/2-616(a) (West 2008). Generally, the decision whether to allow

an amendment to a complaint rests within the trial court’s discretion, and, absent an abuse

of that discretion, we will not disturb the trial court’s decision. Seitz-Partridge v. Loyola

University of Chicago, 409 Ill. App. 3d 76, 86 (2011). “In determining whether a trial court

abused its discretion, we weigh the following factors: (1) whether the proposed amended

complaint would cure defective pleadings; (2) whether the amendment would surprise or

prejudice the opposing party; (3) whether the amendment was timely filed; and (4) whether

the movant had previous opportunities to amend.” Id. However, here, our assessment of the

trial court’s ruling requires us to construe several statutes. We review de novo questions of

statutory construction. Acme Markets, Inc. v. Callanan, 236 Ill. 2d 29, 35 (2009).

¶ 26 Section 8-101(a) of the Tort Immunity Act provides, in relevant part, that “[n]o civil

action *** may be commenced in any court against a local entity or any of its employees for

an injury unless it is commenced within one year from the date that the injury was received

or the cause of action accrued.” 745 ILCS 10/8-101(a) (West 2008). Section 2-406(c) of the

Code states, in relevant part, that “[a]n action is commenced against a new party by the filing

of an appropriate pleading or the entry of an order naming him or her a party.” 735 ILCS 5/2-

406(c) (West 2008). Section 2-406(b) of the Code states: “If the plaintiff desires to assert

against the third-party defendant any claim which the plaintiff might have asserted against

the third-party defendant had he or she been joined originally as a defendant, the plaintiff

shall do so by an appropriate pleading.” 735 ILCS 5/2-406(b) (West 2008).

¶ 27 Here, the accident occurred on February 2, 2008, and Ponto filed her complaint against

Levan that same month, on February 29, 2008. Levan filed his contribution action against

the City on February 26, 2009, which was within one year of the date he was sued and, thus,

within the one-year statute of limitations in section 8-101(a) of the Tort Immunity Act.

Highland v. Bracken, 202 Ill. App. 3d 625, 629 (1990) (for purposes of statute of limitations,

cause of action accrues on the date the action was filed against the third-party plaintiff).

However, Ponto did not seek to amend her complaint to add the City as a direct defendant

until June 2010, more than two years after the accident.

¶ 28 Ponto raises two arguments. She argues first that, once the cause of action against the

City commenced, the statute of limitations was tolled and the cause became a pending action.

She notes that the purpose of the limitations period in the Tort Immunity Act “ ‘is to

encourage early investigation into the claim asserted against the local government at a time

when the matter is still fresh, witnesses are available, and conditions have not materially

changed.’ ” Tosado v. Miller, 188 Ill. 2d 186, 194-95 (1999) (quoting Saragusa v. City of

Chicago, 63 Ill. 2d 288, 293 (1976)). This type of “investigation permits prompt settlement

of meritorious claims and allows governmental entities to plan their budgets in light of

potential liabilities.” Id. at 195. Ponto urges that this purpose would not have been defeated

if she had been allowed to amend her complaint, because the City was already a party to the

suit, the City already had an opportunity to conduct an early investigation, and discovery was

essentially completed. Second, turning to section 2-406 of the Code, which addresses

amendments of pleadings, Ponto contends that whether that statute permits a plaintiff to

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assert a claim against a third-party defendant beyond the limitations period appears to be an

issue of first impression. She argues that the only proper reading of section 2-406 is that the

assertion of a claim against a third-party defendant is the plaintiff’s right and is an issue over

which the trial court has no discretion. Further, she asserts that the statute of limitations is

not an issue, because it will have been satisfied when the third-party defendant was named

as a new party to the suit.

¶ 29 The City responds by noting that, generally, “ ‘statute[s] of limitations continue[ ] to run

unless tolling is authorized by statute.’ ” American Airlines, Inc. v. Department of Revenue,

402 Ill. App. 3d 579, 605 (2009) (quoting IPF Recovery Co. v. Illinois Insurance Guaranty

Fund, 356 Ill. App. 3d 658, 665 (2005)). The City argues that section 2-406 does not trump

the statute of limitations and does not contain any express language tolling the limitations

period.

¶ 30 We reject Ponto’s claims. First, the commencement of the third-party action did not toll

the statute of limitations concerning her potential claim against the City. Cf. Grewenig v.

American Baking Co., 293 Ill. App. 604, 610 (1938) (generally, in a tort action, a party

cannot be brought in as a defendant after the limitations period has run in his or her favor,

although the action against the original defendant was commenced within the prescribed

time). Ponto cites no authority suggesting otherwise. Ponto’s second argument is that the

only proper reading of section 2-406 of the Code is that it permits a plaintiff to assert a claim

against a third-party defendant beyond the limitations period that otherwise applies to the

case. This claim constitutes a contorted reading of the provision. Nowhere does the statute

reference an interplay with any statute of limitations. It addresses only the action to be taken

to commence a suit, including one against a third-party defendant, which must be

accomplished by “an appropriate pleading.” 735 ILCS 5/2-406(b), (c) (West 2008).

¶ 31 Levan points to section 2-616(d) of the Code, which provides that the statute of

limitations does not bar a suit “against a person not originally named a defendant” if: (1) the

limitations period had not expired when the original suit commenced; (2) “the person, within

the time that the action might have been brought or the right asserted against him,” received

notice of the commencement of the suit, would not be prejudiced by defending the suit, and

was on notice that, “but for a mistake concerning the identity of the proper party,” the

plaintiff would have sued the person; and (3) the cause of action grew out of the same

transaction or occurrence. (Emphasis added.) 735 ILCS 5/2-616(d) (West 2008). Levan

argues that the foregoing requirements are met here, where Ponto timely filed suit against

Levan; the City knew about the suit before the one-year limitations period expired, because

the parties had deposed Cox (in December 2008); the City could not have been prejudiced

by defending itself against Ponto, because it had already been doing so against Levan;

Levan’s contribution claim put the City on notice that Ponto mistakenly omitted the City as

her direct defendant; and Ponto’s original suit against Levan and her attempted suit against

the City are for the same accident.

¶ 32 The City does not respond to Levan’s argument. We nevertheless reject it outright

because there is no evidence of any mistake concerning the City’s identity. See Borchers v.

Franciscan Tertiary Province of Sacred Heart, Inc., 2011 IL App (2d) 101257, ¶ 51 (mistake

encompasses lack of knowledge concerning the identity of all persons involved in the alleged

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wrongdoing).

¶ 33 In summary, the trial court did not err in denying Ponto’s request to amend her complaint

to add the City as a defendant.

¶ 34 2. Section 2-1117 of the Code (Joint Liability Statute) and the Contribution Act

¶ 35 Next, Ponto (joined by Levan) argues that, under section 2-1117 if the Code (the joint

liability statute) and the Contribution Act, the City is jointly and severally liable for the entire

damages award and the trial court erred in finding otherwise. The City responds that, because

Ponto did not sue it, she has no judgment against it and no right to directly recover from it,

regardless of its ostensible joint and several liability. The City maintains that the trial court

did not err in finding that, unless and until Levan pays more than 65% of the verdict to

Ponto, the City owes nothing. For the following reasons, we conclude that the trial court did

not err.

¶ 36 The issues presented in this portion of the appeal involve questions of statutory

interpretation. The interpretation of a statute presents a question of law subject to de novo

review. Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d 64, 74 (2002).

¶ 37 We first review the relevant statutes. Section 2-1117 of the Code (735 ILCS 5/2-1117

(West 2008)), which addresses joint liability, modified (to a certain extent) the common-law

rule of joint and several liability. Unzicker, 203 Ill. 2d at 70. Under the common law, a

plaintiff could recover compensation from any responsible defendant for the full amount of

his or her injury. Id. Section 2-1117, however, provides:

“Except as provided in Section 2-1118, in actions on account of bodily injury or

death or physical damage to property, based on negligence, or product liability based on

strict tort liability, all defendants found liable are jointly and severally liable for

plaintiff’s past and future medical and medically related expenses. Any defendant whose

fault, as determined by the trier of fact, is less than 25% of the total fault attributable to

the plaintiff, the defendants sued by the plaintiff, and any third party defendant except

the plaintiff’s employer, shall be severally liable for all other damages. Any defendant

whose fault, as determined by the trier of fact, is 25% or greater of the total fault

attributable to the plaintiff, the defendants sued by the plaintiff, and any third party

defendants except the plaintiff’s employer, shall be jointly and severally liable for all

other damages.” (Emphases added.) 735 ILCS 5/2-1117 (West 2008).

¶ 38 Section 2-1117 does not set a cap on damages; rather, it merely determines “when a

defendant can be held liable for the full amount of a jury’s verdict and when a defendant is

liable only in an amount equal to his or her percentage of fault.” Unzicker, 203 Ill. 2d at 94.

It “replaced joint and several liability with several liability with respect to nonmedical

damages for those found less than 25% responsible for a plaintiff’s injuries.” Id. at 85. Stated

differently, section 2-1117 provides that “independent concurring tortfeasors will be only

proportionately liable for nonmedical damages when those tortfeasors’ percentage of

comparative responsibility is less than 25%.” Id. at 97 (McMorrow, C.J., specially

concurring). “The clear legislative intent behind section 2-1117 is that minimally responsible

defendants should not have to pay entire damage awards. The legislature set the line of

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minimal responsibility at less than 25%.” Id. at 78 (majority opinion). Thus, pursuant to

section 2-1117, any tortfeasor whose percentage of fault the trier of fact determined to be

“less than 25% of the total fault attributable to the plaintiff, the defendants sued by the

plaintiff, and any third party defendant except the plaintiff’s employer, shall be severally

liable” for the plaintiff’s nonmedical damages. 735 ILCS 5/2-1117 (West 2008). As relevant

here, the statute “retains full joint and several liability for those whose percentage of fault for

the plaintiff’s injuries is 25% or greater.” Unzicker, 203 Ill. 2d at 81.

¶ 39 Section 2-1117 is considered before the Contribution Act and is applied to determine

liability. Id. at 80. Thereafter, “[a]ny defendant who pays damages in an amount greater than

his or her proportionate share of fault can *** seek contribution under the Contribution Act.”

Id.

¶ 40 Turning to contribution, in Skinner v. Reed-Prentice Division Package Machinery Co.,

70 Ill. 2d 1, 15 (1977), the supreme court adopted the doctrine of contribution among joint

tortfeasors. That decision was later codified in the Contribution Act. Board of Trustees of

Community College, District No. 508 v. Coopers & Lybrand LLP, 296 Ill. App. 3d 538, 545-

46 (1998).

¶ 41 Subsections (a) and (b) of section 2 of the Contribution Act provide:

Ҥ 2. Right of Contribution. (a) Except as otherwise provided in this Act, where 2 or

more persons are subject to liability in tort arising out of the same injury to person or

property, or the same wrongful death, there is a right of contribution among them, even

though judgment has not been entered against any or all of them.

(b) The right of contribution exists only in favor of a tortfeasor who has paid more

than his pro rata share of the common liability, and his total recovery is limited to the

amount paid by him in excess of his pro rata share. No tortfeasor is liable to make

contribution beyond his own pro rata share of the common liability.” (Emphases added.)

740 ILCS 100/2(a), (b) (West 2008).

¶ 42 Section 3 of the Contribution Act states, in relevant part:

Ҥ 3. Amount of Contribution. The pro rata share of each tortfeasor shall be

determined in accordance with his relative culpability. However, no person shall be

required to contribute to one seeking contribution an amount greater than his pro rata

share unless the obligation of one or more of the joint tortfeasors is uncollectable. In that

event, the remaining tortfeasors shall share the unpaid portions of the uncollectable

obligation in accordance with their pro rata liability.” 740 ILCS 100/3 (West 2008).

¶ 43 Section 4 of the Contribution Act provides, in relevant part:

Ҥ 4. Rights of Plaintiff Unaffected. Except as provided in Section 3.5 of this Act

[addressing actions against a plaintiff’s employer], a plaintiff’s right to recover the full

amount of his judgment from any one or more defendants subject to liability in tort for

the same injury to person or property, or for wrongful death, is not affected by the

provisions of this Act.” (Emphasis added.) 740 ILCS 100/4 (West 2008).

¶ 44 “[T]he Contribution Act generally does not come into play if the plaintiff collects from

the defendants in accordance with the jury’s assessment of their respective culpabilities.”

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Sakellariadis v. Campbell, 391 Ill. App. 3d 795, 804 (2009). Rather, the statute provides a

remedy for a person who has paid more than his or her pro rata share of the common

liability by allowing him or her to seek contribution from a fellow joint tortfeasor who has

not paid his or her pro rata share of the common liability. Truszewski v. Outboard Motor

Marine Corp., 292 Ill. App. 3d 558, 561 (1997).

¶ 45 Turning to the parties’ arguments, Ponto (joined by Levan) argues that both Levan and

the City are fully responsible for her injuries. Specifically, she contends that section 2-1117’s

references to “all defendants” and “Any defendant” necessarily encompass third-party

defendants. 735 ILCS 5/2-1117 (West 2008) (“all defendants found liable are jointly and

severally liable for plaintiff’s *** [medical expenses]. Any defendant whose fault, as

determined by the trier of fact, is 25% or greater of the total fault attributable to the plaintiff,

the defendants sued by the plaintiff, and any third party defendants except the plaintiff’s

employer, shall be jointly and severally liable for all other damages.” (Emphases added.)).

Ponto asserts that the City, as an independent concurrent tortfeasor “whose fault, as

determined by the trier of fact, is 25% or greater” (id.), should be included in that group of

“[a]ny defendant[s]” who are jointly and severally liable for all damages. Ponto urges that

the term “any” is broad enough to encompass all types of defendants and that the trial court

erred in reading limitations (i.e., the exclusion of third-party defendants) into the term. In her

view, it is “undisputed” that the City was an independent concurrent tortfeasor (based, in

part, on the jury’s finding that both the City and Levan were liable) that tortiously contributed

to her injuries and that the purpose of the joint-and-several-liability doctrine would be

subverted if section 2-1117 did not apply to the City. Ponto further points to section 2-401(d)

of the Code, which addresses the designation of parties and provides, in relevant part, that

“[u]nless a contrary meaning is indicated, wherever used in this Act and in rules adopted

pursuant hereto *** the term ‘defendant’ includes third-party defendants and parties against

whom relief is sought by counterclaim.” (Emphasis added.) 735 ILCS 5/2-401(d) (West

2008). Moreover, she contends that the specific references in section 2-1117 to “plaintiff, the

defendants sued by the plaintiff, and any third party defendants” simply reflects how the jury

subdivides or itemizes its attribution of total fault; it does not negate the fact that

“defendants” encompasses “third-party defendants.” Alternatively, Ponto argues that a third-

party defendant is directly responsible for a plaintiff’s injuries that it has caused. However,

she concedes that the case law upon which she relies only “implicitly” supports this claim.

See Unzicker, 203 Ill. 2d at 71 (noting in facts section that the trial court found the defendant

and the third-party defendant each “jointly and severally liable” for the plaintiff’s medical

expenses); Lilly v. Marcal Rope & Rigging, Inc., 289 Ill. App. 3d 1105, 1117 (1997) (noting

that both the defendant and the third-party defendant “are each responsible for 100% of the

plaintiff’s injury” and that the “fact that the relative culpability of the defendants vis-a-vis

one another was calculated at 90% /10% under the Contribution Act does not change the

responsibility of each to the plaintiff” (emphasis in original)), overruled on other grounds

by Unzicker, 203 Ill. 2d at 96. Finally, Ponto argues that it would be unjust to allow the City

to escape liability by virtue of Levan’s insolvency. She urges that the burden of the insolvent

defendant (i.e., Levan) would fall on her instead of on a party that caused damages (i.e., the

City). See Coney v. J.L.G. Industries, Inc., 97 Ill. 2d 104, 123 (1983) (under the Contribution

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Act, “it is the defendant or defendants who must bear the burden of the insolvent or immune

defendant”).

¶ 46 In response, the City argues that it is a third-party defendant and that its liability arises

only under the Contribution Act and only in favor of Levan, its fellow tortfeasor, not Ponto.

It primarily relies on Stephens v. McBride, 97 Ill. 2d 515 (1983). In Stephens, following a

vehicle collision at an intersection, a motorcyclist sued an automobile driver, alleging

negligence. The defendant filed a third-party contribution complaint against the village

wherein the accident occurred, alleging that it created a hazardous condition–a visual

obstruction–at the corner of the intersection. On appeal from summary judgment for the

village, the supreme court first addressed whether the defendant could assert a contribution

claim. The supreme court determined that the Tort Immunity Act’s notice provisions did not

apply to an action for contribution. Id. at 521. The court held that the defendant was not

precluded from seeking contribution under the Contribution Act by the mere fact that, when

the defendant filed his third-party complaint for contribution, the plaintiff was precluded

from recovering from the village (due to the plaintiff’s failure to give notice to the village

of his injuries, a point that was not disputed). Id. at 519-20. Although unnecessary to its

decision, the court next addressed policy considerations. Id. at 522-25. It noted, relying on

People ex rel. Department of Transportation v. Superior Court, 608 P.2d 673, 684 (Cal.

1980), that its conclusion would “not permit the injured plaintiff to recover indirectly from

the governmental entity although he is precluded from directly recovering from it.” Stephens,

97 Ill. 2d at 524. Further, the court noted that, whether or not the defendant could recover

from the village, the plaintiff could recover from the defendant under the doctrine of joint

and several liability; thus, the plaintiff gained nothing if the defendant was permitted to

recover contribution from the village. Id. at 525.

¶ 47 Relying primarily on Stephens, the City argues that, unless and until Levan pays more

than 65% of the verdict to Ponto, the City owes nothing. Further, if Levan cannot pay his pro

rata share due to insolvency, Ponto has no right to recover anything (directly or indirectly)

from the City. Finally, the City contends that, if Levan does pay more than his pro rata share,

Ponto gains nothing because it is Levan, not Ponto, who is permitted to recover contribution

from the City. The City urges that it is not a “defendant[ ] subject to liability in tort” (740

ILCS 100/4 (West 2008)) but is a third-party defendant and that its liability arises only under

the Contribution Act and only in favor of Levan. The City notes that the right of contribution

belongs to a fellow tortfeasor, not to the plaintiff, and that this right is inchoate until the

tortfeasor has paid more than his pro rata share of the liability. See Snoddy v. Teepak, Inc.,

198 Ill. App. 3d 966, 971 (1990). It does not respond to Ponto’s (and Levan’s) statutory

construction arguments.

¶ 48 We conclude that the trial court did not err in entering judgment such that the City’s

contribution responsibility was triggered only if Levan paid more than his pro rata share of

the judgment to Ponto (and only for that amount paid to her in excess of his pro rata share

of the judgment). Section 2-406 of the Code permits a defendant, by third-party complaint,

to bring in a person not a party to the action “who is or may be liable to him or her.”

(Emphasis added.) 735 ILCS 5/2-406(b) (West 2008). Subsections (a) and (b) provide:

“(a) If a complete determination of a controversy cannot be had without the presence of

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other parties, the court may direct them to be brought in. If a person, not a party, has an

interest or title which the judgment may affect, the court, on application, shall direct such

person to be made a party.

(b) Within the time for filing his or her answer or thereafter by leave of court, a

defendant may by third-party complaint bring in as a defendant a person not a party to

the action who is or may be liable to him or her for all or part of the plaintiff’s claim

against him or her. Subsequent pleadings shall be filed as in the case of a complaint and

with like designation and effect. The third-party defendant may assert any defenses which

he or she has to the third-party complaint or which the third-party plaintiff has to the

plaintiff’s claim and shall have the same right to file a counterclaim or third-party

complaint as any other defendant. If the plaintiff desires to assert against the third-party

defendant any claim which the plaintiff might have asserted against the third-party

defendant had he or she been joined originally as a defendant, the plaintiff shall do so

by an appropriate pleading. When a counterclaim is filed against a party, the party may

in like manner proceed against third parties. Nothing herein applies to liability insurers.”

(Emphases added.) 735 ILCS 5/2-406(a), (b) (West 2008).

¶ 49 With section 2-406 in mind, we turn to Ponto’s and Levan’s construction of the joint

liability statute. The fundamental objective of statutory construction is to ascertain and give

effect to the intent of the legislature. Blum v. Koster, 235 Ill. 2d 21, 29 (2009). The most

reliable indicator of legislative intent is the statutory language, given its plain and ordinary

meaning. Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200,

216 (2008). When the statutory language is clear and unambiguous, it must be applied as

written without resort to extrinsic aids of statutory interpretation. MidAmerica Bank, FSB v.

Charter One Bank, FSB, 232 Ill. 2d 560, 565 (2009). We will not depart from the plain

statutory language by reading into it exceptions, limitations, or conditions that conflict with

the expressed intent of the legislature. Id. at 565-66.

¶ 50 Ponto and Levan request that we construe section 2-1117 in a manner that conflicts with

the statute’s plain meaning. The plain meaning of the terms in the statute unambiguously

does not support Ponto’s and Levan’s reading. The fact that the provision uses both the terms

“defendant” and “third-party defendant” shows that the legislature did not intend that the

term “defendant” encompass “third-party defendant.” Section 2-401(d)’s designation of

defendant to include third-party defendants does not conflict with this interpretation, because

that statute contains the qualifier “[u]nless a contrary meaning is indicated.” 735 ILCS 5/2-

401(d) (West 2008). A contrary meaning is indicated, in our view, by the legislature’s

inclusion in the joint liability statute of both “defendant” and “third-party defendant.” See,

e.g., Faville v. Burns, 2011 IL App (1st) 110335, ¶ 26 (legislature’s use of separate terms in

multiple places throughout statutory provision “strongly indicates it intended the terms to

have separate and distinct meanings”). We reject Ponto’s and Levan’s argument that use of

both terms simply reflects how the jury is to attribute total fault and does not negate the fact

that section 2-401(d) states that third-party defendants constitute defendants. In our view,

their reading is not a reasonable construction of section 2-1117 and, instead, constitutes a

contorted reading of the statute.

¶ 51 Neither Unzicker, upon which Ponto and Levan rely, nor Stephens, upon which the City

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relies, is particularly helpful. In Unzicker, a worker was injured in a food company’s

(Kraft’s) plant and he and his wife sued the company, alleging negligence and violations of

the Structural Work Act (740 ILCS 150/0.01 et seq. (West 1992), repealed by Pub. Act 89-2

(eff. Feb. 14, 1995)). Kraft filed a third-party complaint for contribution against the worker’s

employer (Nogle). A jury awarded over $879,000 in damages, $788,000 of which were

nonmedical. It also apportioned fault at 1% on Kraft’s part and 99% on Nogle’s part. On

appeal, the plaintiffs argued that Nogle should not have been included in the division of fault,

because it was protected from suit by the Worker’s Compensation Act (820 ILCS 305/1 et

seq. (West 2000)) and was not a party who “could have been sued” (Ill. Rev. Stat. 1991, ch.

110, ¶ 2-1117) by the plaintiffs. The plaintiffs also argued that section 2-1117 was

unconstitutional. As to the primary issue on appeal, the supreme court held that a plaintiff’s

employer who is a third-party defendant is a party who could have been sued by the plaintiff.

Unzicker, 203 Ill. 2d at 77. The court also held that section 2-1117 does not conflict with the

Contribution Act (primarily because it comes into play before the Contribution Act) and does

not conflict with the purpose of joint and several liability. Id. at 80-83. The court also

rejected the plaintiff’s constitutional challenges. Id. at 88-96.

¶ 52 Nowhere in Unzicker did the supreme court address the specific question before this

court. Ponto concedes as much, as she states that Unzicker implicitly supports her position.

To her detriment, she relies on a portion of the facts section of the opinion wherein the court

noted that the trial court found that Kraft (the defendant) and Nogle (the third-party

defendant) were jointly and severally liable for the plaintiff’s medical expenses. Id. at 71.

Again, this finding was not challenged on appeal and the court’s recitation of the record does

not aid Ponto. There is no statement in the case that Nogle, the third-party defendant, paid

any amount to the plaintiff.

¶ 53 Similarly, the portion of the Stephens opinion upon which the City relies would

constitute, at best, judicial dictum. See, e.g., Cates v. Cates, 156 Ill. 2d 76, 80 (1993) (“an

expression of opinion upon a point in a case argued by counsel and deliberately passed upon

by the court, though not essential to the disposition of the cause, if dictum, is a judicial

dictum. [Citations.] *** [A] judicial dictum is entitled to much weight, and should be

followed unless found to be erroneous.”). However, as Ponto points out, Stephens was

decided several years before the enactment of section 2-1117 and the precise issue raised in

this appeal was not addressed by that court. Thus, it is of little use to our statutory analysis

and illustrates only a third-party practice principle.

¶ 54 Levan further argues that section 2(b) of the Contribution Act places a draconian

condition on his exercise of his right of contribution from the City. See 740 ILCS 100/2(b)

(West 2008) (contribution right exists only for a tortfeasor “who has paid more than his pro

rata share of the common liability,” and “recovery is limited to the amount paid by him in

excess of his pro rata share. No tortfeasor is liable to make contribution beyond his own pro

rata share of the common liability.”). Levan asserts that he first has to pay over $380,000 to

Ponto (representing his 65% fault apportionment) and then his right is to reimbursement for

only what he overpaid. Levan maintains that, even though he and the City are joint

tortfeasors that share a common liability to Ponto, the City’s contribution exposure is actually

a phantom until he pays too much. He complains that “an absolutely literal payment-then-

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reimbursement” cannot be the statute’s purpose. We reject his argument outright because he

ignores that Ponto failed to timely add the City as a direct defendant in her suit. The

Contribution Act is structured to ensure that no tortfeasor pays more than his or her “own pro

rata share of the common liability.” 740 ILCS 100/2(b) (West 2008). Under the scenario that

played out in this case, the trial court’s order conforms with this goal.

¶ 55 Turning to section 3 of the Contribution Act, Levan argues next that the City can be

required to contribute more than its share to him because Levan’s full obligation is not

collectible. 740 ILCS 100/3 (West 2008) (“no person shall be required to contribute to one

seeking contribution an amount greater than his pro rata share unless the obligation of one

or more of the joint tortfeasors is uncollectable. In that event, the remaining tortfeasors shall

share the unpaid portions of the uncollectable obligation in accordance with their pro rata

liability.”). Thus, he says, the City has to pay 35% of Levan’s uncollectible obligation. We

reject this argument because, as we determined above, under the joint liability statute, the

City does not owe any monies directly to Ponto. See Unzicker, 203 Ill. 2d at 80 (section 2-

1117 is considered before the Contribution Act and is applied to determine liability); see also

Truszewski, 292 Ill. App. 3d at 561 (Contribution Act provides a remedy for a person who

has paid more than his or her pro rata share of the common liability by allowing him or her

to seek contribution from a fellow joint tortfeasor who has not paid his or her pro rata share

of the common liability). To read section 3 of the Contribution Act to undermine the joint-

and-several-liability doctrine codified in the joint liability statute in a case where the plaintiff

failed to timely add the third-party defendant as a direct defendant is illogical and unfair and

constitutes a misreading of the statutes and the legislative intent.

¶ 56 Levan goes further and, relying on section 4’s statement that nothing in the Contribution

Act affects a plaintiff’s right to recover the full judgment amount from any defendant subject

to liability in tort, also suggests that, if things were truly fair, then the statute should not

affect Ponto’s right to recover the full judgment amount from the City. He emphasizes that

the jury found the City actually liable for its 35% fault and argues that the municipality

“cannot hide behind the hypertechnical nomenclature of third-party defendant to suggest that

it is not literally liable to” Ponto. (Emphasis in original.) We reject this argument outright

because we cannot agree that a party’s status as a third-party defendant constitutes mere

hypertechnical nomenclature.

¶ 57 In summary, the trial court did not err in finding that, unless and until Levan pays more

than 65% of the verdict to Ponto, the City owes nothing.

¶ 58 B. City’s Cross-Appeal–Discretionary Immunity

¶ 59 In its cross-appeal, the City maintains that the trial court erred in denying multiple

motions wherein the City sought to assert its immunity for the discretionary acts of its

employees. Specifically, the City argued that decisions concerning the plan for improvement

of the City’s water distribution system were made and carried out by Cox and that

formulation of the water main plan was ongoing at the time of Ponto’s accident. Further,

because the decisions involved the exercise of discretion, the City argues that Cox could not

be liable under section 2-201 of the Tort Immunity Act (and, thereby, section 2-109 of the

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statute). It requests that we enter judgment in its favor or remand for a new trial. For the

following reasons, we reject the City’s argument.

¶ 60 Preliminarily, we address Levan’s argument that this court does not have jurisdiction

over the City’s cross-appeal. On April 7, 2011, Ponto timely filed her notice of appeal from

the trial court’s March 30, 2011, order (disposing of the last pending postjudgment motion).

On April 11, 2011, the City timely filed its notice of cross-appeal, seeking to raise the

discretionary immunity issue and specifically noting that it was appealing from, among

others, the court’s March 30, 2011, order and its January 26, 2011, order (in which it entered

judgment on the jury’s verdict). On April 26, 2011, Levan timely filed his notice of appeal,

noting that he was appealing from the trial court’s March 30, 2011, order and its January 26,

2011, order. Levan argues that this court lacks jurisdiction over the City’s cross-appeal

because he did not become a party to this appeal until his notice of appeal was filed (after the

City’s notice) and it was incumbent on the City to thereafter file a new notice of cross-appeal

or move to amend its initial notice, which it did not do. In other words, Levan contends that

the City never directly cross-appealed against him. We reject this claim. Illinois Supreme

Court Rule 303(a)(3) provides that, if a timely notice of appeal is filed and served by a party,

then “any other party *** may join in the appeal, appeal separately, or cross-appeal by filing

a notice of appeal, indicating which type of appeal is being taken.” Ill. S. Ct. R. 303(a)(3)

(eff. May 30, 2008). Levan cites to no authority suggesting that a party must file a new or

amended notice of appeal following a second appellant’s subsequent notice of appeal.

¶ 61 Turning to the merits, the Tort Immunity Act is in derogation of the common law and,

therefore, must be strictly construed against the public entities involved. Aikens v. Morris,

145 Ill. 2d 273, 278 (1991). In order to bar plaintiffs’ recovery, governmental entities bear

the burden of properly raising and proving that they are immune under the Tort Immunity

Act. Van Meter v. Darien Park District, 207 Ill. 2d 359, 370 (2003). We review de novo the

application of the immunity provisions (Gutstein v. City of Evanston, 402 Ill. App. 3d 610,

615-16 (2010)), as we do a motion for a directed verdict (Krywin v. Chicago Transit

Authority, 238 Ill. 2d 215, 225 (2010)). We review for an abuse of discretion a ruling on a

motion for a new trial. Watson v. South Shore Nursing & Rehabilitation Center, LLC, 2012

IL App (1st) 103730, ¶ 32.

¶ 62 Section 2-201 of the Tort Immunity Act provides:

Ҥ 2-201. 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.” (Emphases added.) 745 ILCS 10/2-201

(West 2008).

¶ 63 Section 2-109 of the statute provides that “[a] local public entity is not liable for an injury

resulting from an act or omission of its employee where the employee is not liable.” 745

ILCS 10/2-109 (West 2008). In section 2-201, the legislature immunized “liability for both

negligence and willful and wanton misconduct.” In re Chicago Flood Litigation, 176 Ill. 2d

179, 196 (1997).

¶ 64 Our supreme court has held that the Tort Immunity Act sets up a two-part test to

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determine which employees may be granted discretionary immunity under section 2-201.

First, an employee may qualify for discretionary immunity “if he holds either a position

involving the determination of policy or a position involving the exercise of discretion.”

(Emphases in original.) Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335,

341 (1998). Second, however, an employee who satisfies the first prong of the test must also

have engaged in both the determination of policy and the exercise of discretion when

performing the act or omission from which the plaintiff’s injury resulted. Id. Here, the trial

court found against the City on both prongs.

¶ 65 1. First Prong: Whether the Position Determines Policy or Exercises Discretion

¶ 66 As to the first prong, the trial court found that, in the hierarchy of decision-makers, Cox

was in the “fourth rung” after: the city council, a commissioner, and Ortgiesen (the City

engineer). The court also found that Cox exercised “some” discretion “in certain situations.”

Ponto concedes that Cox’s position could involve the exercise of discretion. We agree.

Notwithstanding the fact that he did not make the final decision for the City on water main

improvements, the evidence reflected that his recommendations were taken into

consideration.

¶ 67 2. Second Prong: (a) Whether the Act Involved a Policy Determination

¶ 68 Public policy decisions are “those that require the governmental entity or employee to

balance competing interests and to make a judgment call as to what solutions will best serve

each of those interests.” Harrison v. Hardin County Community Unit School District No. 1,

197 Ill. 2d 466, 472 (2001). The City and (often) the case law conflate the concepts of policy

determination and the exercise of discretion. See, e.g., Gutstein, 402 Ill. App. 3d at 623.

However, the trial court separately addressed the concepts. Specifically, as to policy, the

court found that, although Cox “provides a great deal of information [to the City,] he can

take no action until the city council appropriates the money and in this particular case until

they authorize the engineering agreement.” The court found that the City ultimately

appropriated funds and then instructed the department that it could commence work.

¶ 69 The City appears to argue that Cox determined policy when he sought out the best

solution (which it concedes was subject to the city council’s and Ortgiesen’s approval) for

improving the water main under River Street (but not under River Road). However, it

contends that it was in the process of planning improvements in one area when the accident

put it on notice of the possible need for more extensive maintenance. The City notes that

both Cox and Ortgiesen testified that they had discussed the repair and replacement (i.e., they

formulated an improvement plan) of the River Street section of the City’s water main. The

City urges that the planning for the water main replacement under River Street was in its

early stages on the accident date and was not being implemented.

¶ 70 Ponto responds that Cox did not make any policy determination concerning River Road.

Rather, the items he took into account (i.e., safety, convenience, and cost) came into play in

his decision whether to make the repairs on River Street. She points to his testimony that the

first time he thought there might be an issue with the pipes on River Road was on the

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accident date and that there were no red flags earlier.

¶ 71 We agree with Ponto that Cox did not balance any competing interests with respect to

any policy determination concerning the River Road water main (i.e., the location of the

February 2, 2008, leak). He clearly testified that the River Street and River Road projects

were distinct undertakings. Significantly, Cox stated that he did not determine that the River

Road water main was faulty and initially attributed the single leak in that area (in October

2007) to a water hammer. Cox first suspected that there might be recurring leak issues with

the River Road main after Ponto’s accident, and he did not discuss with Ortgiesen the need

to budget for a project in that area until March or April 2008. Indeed, Ortgiesen testified that,

in late 2007, he did not have any discussions with Cox about the River Road main, because

they “never had reason to.” Thus, on the date of Ponto’s accident, Cox was not involved in

a policy determination concerning River Road.

¶ 72 3. Second Prong: (b) Whether the Act Involved the Exercise of Discretion

¶ 73 “[D]iscretionary acts are those which are unique to a particular public office, while

ministerial acts are those which a person performs on a given state of facts 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). “ ‘A municipal corporation acts judicially or exercises discretion when it selects and

adopts a plan in the making of public improvements, but as soon as it begins to carry out

that plan it acts ministerially and is bound to see that the work is done in a reasonably safe

and skillful manner.’ ” (Emphases added.) Greene v. City of Chicago, 73 Ill. 2d 100, 108

(1978) (quoting Johnston v. City of East Moline, 405 Ill. 460, 466 (1950)). Thus, a

municipality is not immune from liability for the performance of ministerial tasks. Morrissey

v. City of Chicago, 334 Ill. App. 3d 251, 257 (2002). The maintenance of property consists

of keeping it in a state of repair or efficiency and constitutes a ministerial task, while the

improvement of property is a discretionary act. Id. at 256. Generally, a repair is a ministerial

act for which a municipality may be liable if negligently performed. Id. at 257. For example,

if a pothole repair is executed pursuant to a set procedure with no room for discretionary

decisions, it is a ministerial act. In re Chicago Flood Litigation, 176 Ill. 2d at 196-97.

Whether an act is discretionary or ministerial is, generally, a fact-specific inquiry. Hanley v.

City of Chicago, 343 Ill. App. 3d 49, 57-58 (2003); see also Roark v. Macoupin Creek

Drainage District, 316 Ill. App. 3d 835, 841 (2000) (issue whether a defendant drainage

district’s decision not to repair a drainage system was discretionary or ministerial presented

a factual question precluding dismissal of complaint).

¶ 74 Here, the trial court found that the City had commenced the implementation of its

improvement plan and that, therefore, its actions were not discretionary. The City concedes

that the duty to inspect and maintain is generally ministerial. However, it asserts that Cox

exercised discretion when he decided to end the (River Street) improvement project 8 to 10

feet from the accident site. In his opinion, the section of the City’s water main to the south

and west of where River Road, River Street, and Ravine Avenue meet needed to be

improved. He took into account competing interests of cost, convenience, and safety. Finally,

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the City also asserts that Cox’s testimony that he believed there were no problems under

River Road that warranted improvement was the type of judgment that constitutes discretion.

¶ 75 Ponto responds that whether or not any improvement plan was commenced is irrelevant

and that the central consideration is whether Cox exercised any discretion. Again, in her

view, Cox did not have discretion, because the decision whether to replace the water main

had to go through a hierarchy of decision-makers, including the city council and Ortgiesen.

Thus, the decision was not unique to a particular public office and was not a discretionary

act.

¶ 76 We conclude that, on the accident date, Cox was not exercising discretion with respect

to any improvement or plan concerning River Road. Again, his decisions as to any

improvement concerned River Street and not River Road. On December 3, 2007, the City

entered into an engineering agreement that addressed only the River Street project. The

engineering agreement for the River Road main was executed on November 3, 2008,

following discussions between Cox and Ortgiesen that commenced in March or April 2008,

one or two months after Ponto’s accident. We reject the City’s argument that Cox made a

discretionary decision to delay any improvement under River Road, as his statements reflect

that he was not even aware of any recurring leak issues with that pipe.

¶ 77 In sum, under the foregoing facts and principles and under either standard of review, the

City cannot avail itself of discretionary immunity.

¶ 78 III. CONCLUSION

¶ 79 For the foregoing reasons, the judgment of the circuit court of Lee County is affirmed.

¶ 80 Affirmed.

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