Van Meter v. Darien Park District

JUSTICE GARMAN, also dissenting:

I join Justice Fitzgerald’s dissent. I write separately to explain why I agree with Justice Fitzgerald that it is clear from the face of the complaint that the defendants were entitled to immunity.

The majority holds that it is not apparent on the face of the complaint that the defendants’ actions were (1) the result of a policy decision (207 Ill. 2d at 379) and (2) discretionary (207 Ill. 2d at 380). The complaint alleges that the defendants planned and built a park that now causes flooding on plaintiffs’ property. The allegation that the defendants planned and built a park clearly entails that the defendants’ actions were the result of policy decisions and were discretionary.

The majority correctly states that “decisions requiring a governmental entity to balance competing interests and to make a judgment call as to what solutions will best serve those interests are ‘policy decisions’ within the meaning of section 2 — 201.” 207 Ill. 2d at 379. The majority also states that planning a park “should require the consideration of site-specific conditions and the balancing of competing interests.” 207 Ill. 2d at 379. When the majority concludes that it is not apparent on the face of the complaint that the park was a result of policy decisions, it assumes that, although planning a park should require the balancing of competing interests, it need not.

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

Because planning means weighing competing interests, it is not clear what more the defendants must show to establish that they made policy decisions when they planned the park. Is it enough simply to file affidavits that assert the obvious fact that when they planned they weighed competing interests? I am concerned that our decision today may be misinterpreted by courts to mean that a defendant is not immune under section 2 — 201 unless he shows that he duly weighed the plaintiffs interests. It is important to bear in mind that section 2 — 201, by its very terms, immunizes all good-faith policy decisions that involve discretion, even if the discretion is abused. See White v. Village of Homewood, 285 Ill. App. 3d 496, 502 (1996).

The majority states that we have “defined ‘discretionary’ actions to be those ‘ “unique to a particular public office.” ’ ” 207 Ill. 2d at 380, quoting Arteman, 198 Ill. 2d at 484-85, quoting Snyder, 167 Ill. 2d at 474. It then holds that it is not apparent from the face of the complaint that the defendants’ alleged activities were unique to their particular offices. 207 Ill. 2d at 380. Although I agree that whether the defendants’ activities were unique to their office is relevant, I do not agree that it provides the sole test of whether their actions were discretionary.

We first used the phrase “unique to a particular public office” to describe discretionary acts under section 2 — 201 in Snyder v. Curran Township, 167 Ill. 2d 466 (1995). There, however, we concluded that Curran Township’s failure to place a sign warning of a curve in conformity with the State Manual was a ministerial act not subject to immunity due, in part, to the fact that statutory and regulatory guidelines placed certain constraints on the decisions of officials. Snyder, 167 Ill. 2d at 474 .

In addition to Snyder, the majority discusses In re Chicago Flood Litigation, 176 Ill. 2d 179 (1997), Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335 (1998), Harrison v. Hardin County Community Unit School District No. 1, 197 Ill. 2d 466 (2001), and Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475 (2002). In Chicago Flood, the City of Chicago (the City) hired Great Lakes Dredge and Dock Company (Great Lakes) to remove and replace wood piling clusters at several city bridges. The City noted in the contract that the pilings were to be located at specified positions to prevent serious damage to underground structures. Great Lakes, however, installed the pilings at one bridge in a location other than originally designated in the contract. This caused a breach in the wall of an underground freight tunnel, which resulted in the flooding of numerous downtown businesses.

In determining whether the City was immune under section 2 — 201 of the Act, we noted that a municipality exercises discretion “ ‘when it selects and adopts a plan in the making of public improvements, such as constructing sewers or drains; but [it acts ministerially when] it begins to carry out that plan *** and is bound to see that the work is done in a reasonably safe and skillful manner.’ ” Chicago Flood, 176 Ill. 2d at 194 , quoting City of Chicago v. Seben, 165 Ill. 371, 377-78 (1897). We concluded that the City was immune under section 2 — 201 because it retained discretion to determine the location of the pile drivings and because the plaintiffs failed to allege a prescribed method for repairing the tunnel and warning the plaintiffs of the tunnel breach. Chicago Flood, 176 Ill. 2d at 196-97 . In finding the City’s actions to be discretionary and, thus, immune from liability, we did not discuss whether the acts were unique to the City.

In Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335 (1998), we discussed whether the conduct of a City of Chicago fire marshal involved the exercise of discretion under section 2 — 201. The complaint alleged that a decision by the fire marshal about how to conduct a fire drill was negligent. Harinek, 181 Ill. 2d at 338 . In concluding that the fire marshal exercised his discretion, we stated: “The marshal bears sole and final responsibility for planning and executing fire drills in buildings throughout Chicago. He is under no legal mandate to perform these duties in a prescribed manner; rather, he exercises his discretion in determining how, when, and where to hold drills such as the one in which plaintiff was injured.” Harinek, 181 Ill. 2d at 343 . Certainly, the point that the fire marshal bears sole responsibility for fire drills goes to the question of uniqueness. But uniqueness was not the only basis for our holding. We also observed that the marshal is not constrained by any legal mandate in deciding how to hold the drills.

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

Finally, in Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475 (2002), we held that a school district’s decision not to provide roller-blade safety equipment was both a policy decision and discretionary. Again, although we quoted the language from Snyder, we did not apply it to conclude that the school district exercised discretion. Rather, we followed several opinions of the appellate court that held that a school district’s decision not to provide safety equipment was discretionary. Arteman, 198 Ill. 2d at 485 . Arteman was primarily concerned with whether the appellate court was mistaken when it held that the common law duty of school districts to provide reasonably necessary safety equipment trumps the immunity provided by section 2 — 201 (Arteman, 198 Ill. 2d at 487 ), not with whether the defendants were immune.

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

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

For these reasons, I respectfully dissent.

JUSTICE FITZGERALD joins in this dissent.