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College Entitled to Tort Immunity Where Employee Made Policy Determination and Exercised Unfettered Discretion in Decisions to Fix Sidewalks

By April 8, 2014April 29th, 2015News

In Richter v. College of DuPage, Blanche Richter, a student at the College of DuPage, sustained injuries after falling on an uneven sidewalk. Richter alleged that the college had actual notice of the uneven sidewalk and that it was negligent for failing to repair it. An Illinois appellate c ourt found that the college was protected by the Tort Immunity Act.

The college was aware that the concrete sidewalks on the campus would often shift in the winter due to frost entering the ground, creating space and pushing the sidewalk upwards. Chris Kornsey, a supervisor in the college’s buildings and grounds department, was responsible for determining how to handle sidewalks that had shifted and become uneven.

Kornsey testified that typically, uneven sidewalks were not fixed during the winter because of the constant “freeze-and-thaw” process, which usually did not end until March or April. However, when a sidewalk issue occurred, it would be addressed on a per-instance basis. Kornsey was not required by a college policy to treat every sidewalk deviation in the same way. He evaluated the issue and could choose to do nothing about it, fix it during the winter if it was abnormally dangerous, or take temporary precautionary measures until it could be fixed. The precautionary measures involved painting the sidewalk yellow and/or placing an orange cone on it to alert the public of a tripping hazard. Kornsey enjoyed unfettered discretion in making the decision on how to treat such concrete issues and never had to seek approval to make a repair.

The Tort Immunity Act gives immunity to public entities for discretionary functions. Richter argued that the college’s duty to keep sidewalks in a reasonably safe condition is a ministerial function and therefore the college is not immune. Although the Illinois Appellate Court found a question of material fact as to whether the college exercised ordinary care by not repairing the sidewalk, it granted summary judgment on behalf of the college, holding that the college was immune under theTort Immunity Act because its handling of sidewalk deviations was a discretionary function.

The method Kornsey used to address uneven sidewalks at the college involved both policy determination and discretion. The court first determined that the college had established a policy as to how to handle sidewalk deviations. A policy determination is defined as a decision that requires the public entity to balance competing interests and make a judgment call as to the best solution.

The court also determined that handling the sidewalk deviations was a discretionary act because it involved the exercise of personal deliberation and judgment. Kornsey had discretion in deciding whether and how to address concrete issues. Ministerial acts, on the other hand, are acts that a person performs on a given set of facts in a prescribed manner, pursuant to a mandate of legal authority. Kornsey was not bound to any rules or regulations. Rather, the court found that he engaged in both the determination of the policy and the exercise of discretion in handling the sidewalk deviations. Therefore the college was entitled to discretionary immunity under the Tort Immunity Act and the Appellate Court held that the lower court properly granted judgment in favor of the college.