                                        2018 IL 122486



                                          IN THE

                                 SUPREME COURT

                                              OF

                           THE STATE OF ILLINOIS




                                     (Docket No. 122486)

       BARBARA MONSON, Appellant, v. THE CITY OF DANVILLE, Appellee.


                                 Opinion filed August 2, 2018.



        JUSTICE BURKE delivered the judgment of the court, with opinion.

        Chief Justice Karmeier and Justices Garman and Neville concurred in the
     judgment and opinion.

        Justice Thomas specially concurred, with opinion, joined by Justices Kilbride
     and Theis.



                                           OPINION

¶1      At issue in this appeal is whether sections 2-109 and 2-201 of the Local
     Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS
     10/2-109, 2-201 (West 2012)), apply to a city’s failure to repair a sidewalk defect.
     The plaintiff in this case filed suit against the City of Danville (City) to recover for
     her injuries from tripping and falling on an uneven seam in a sidewalk. The City
     moved for summary judgment under sections 2-109 and 2-201 of the Act on the
     grounds that its employees exercised discretion in determining which portions of
     the sidewalk were in need of repair or replacement. The circuit court of Vermilion
     County granted the motion and entered summary judgment for the City. The
     appellate court affirmed. 2017 IL App (4th) 160593. For the reasons that follow, we
     reverse the lower courts’ judgments and remand the cause to the circuit court for
     further proceedings.


¶2                                     BACKGROUND

¶3        On the afternoon of December 7, 2012, plaintiff, Barbara Monson, was
     shopping in the downtown business district of Danville, Illinois. She parked her car
     on the street near the intersection of North and Vermilion Streets and walked to a
     nearby pawn shop. According to plaintiff’s deposition testimony, it had rained
     earlier in the day, causing approximately one inch of water to pool on low areas of
     the sidewalk. After visiting the pawn shop, plaintiff began walking back to her car.
     Plaintiff testified she felt her foot hit a piece of concrete, which caused her to trip
     and fall forward onto the sidewalk. She sustained multiple injuries as a result of her
     fall.

¶4       The record contains the deposition testimony of Shelly Larson, the
     superintendent of downtown services at the time of the incident, and Doug Ahrens,
     the director of the public works department. They testified that a project to inspect
     and repair sidewalks in the downtown area was begun in the fall of 2011 and
     completed in March 2012. Larson did an initial walk-through and identified areas
     of concern by marking them with highlighter paint. Ahrens conducted his own
     walk-through and, after conferring with Larson and other City employees, made the
     final decisions about which sections of sidewalk would be repaired, replaced, or
     removed altogether.

¶5       Ahrens testified he made the determinations on a case-by-case basis,
     considering the condition of the concrete; the height of the variations between slabs
     of sidewalk; the normal path of travel for pedestrians; the intended use of the area;
     proximity to buildings, light poles, and trees; and the available time and cost. There
     was no written policy addressing these factors, nor was there a policy that any



                                              -2-
     deviation of a certain size, i.e., more than two inches, necessitated replacement.
     Ahrens testified he could not recall inspecting or measuring the particular slabs of
     concrete where plaintiff fell, nor did he recall making a decision not to repair those
     specific slabs. He stated, however, that the area would have fallen within the
     parameters of the project. When asked whether he considered that section of the
     sidewalk for potential repair, Ahrens stated, “I believe we did consider the slab of
     concrete because we looked at every slab of concrete.”

¶6        Ahrens also signed an affidavit averring, to the best of his knowledge and
     memory, that the portions of the sidewalk where plaintiff fell “were either not
     prioritized to be in need of replacement at that time or such replacement could not
     fit with the allowable time and budget for that project ***. Therefore, in or around
     the Fall of 2011, I used my discretion as Public Works Director not to replace that
     portion of the sidewalk.”

¶7       Plaintiff filed a complaint against the City alleging negligence and willful and
     wanton conduct. The complaint alleged the City breached its duty to maintain its
     premises in a reasonably safe condition by (i) failing to provide a safe means of
     ingress and egress on the sidewalk by allowing a portion thereof to become sunken,
     broken, worn, uneven, and/or unsafe; (ii) allowing an unreasonably dangerous
     condition to exist; (iii) allowing the sidewalk to remain in a dangerous condition
     despite having actual and/or constructive knowledge of the dangerous condition;
     (iv) failing to correct or repair the sidewalk; (v) permitting a portion of the
     sidewalk to become and remain in a dangerous condition, thereby presenting a
     hazard to those persons it reasonably anticipated would use the sidewalk;
     (vi) failing to adequately warn pedestrians of the dangerous condition; and
     (vii) failing to maintain its property in a reasonably safe condition. As a result of
     the City’s acts or omissions, plaintiff alleged she sustained serious and permanent
     injuries to her face, mouth, foot, shoulder, and arm.

¶8       The City filed a motion requesting summary judgment on the ground that it was
     immune from liability pursuant to sections 2-109 and 2-201 of the Act (745 ILCS
     10/2-109, 2-201 (West 2012)). The City also argued plaintiff’s claim was not
     actionable because the alleged sidewalk defect was de minimis and the condition
     was open and obvious. The trial court granted the motion and entered summary




                                             -3-
       judgment in favor of the City solely based on tort immunity. The court did not
       consider the City’s alternative arguments.

¶9         On appeal, plaintiff argued section 3-102(a) of the Act (id. § 3-102(a)), which
       codifies a municipality’s duty at common law to maintain its property in a
       reasonably safe condition, supersedes the discretionary immunity under section
       2-201 of the Act. The appellate court rejected that argument and affirmed the trial
       court’s entry of summary judgment. 2017 IL App (4th) 160593, ¶ 35. The court
       held section 3-102(a) does not supersede the immunity in section 2-201. Id. ¶ 30.
       The court further held the City adequately established its immunity from liability
       pursuant to sections 2-109 and 2-201 of the Act. Id. ¶¶ 30, 33.

¶ 10       This court allowed plaintiff’s petition for leave to appeal. Ill. S. Ct. R. 315(a)
       (eff. Mar. 15, 2016). We allowed amicus curiae briefs to be filed by the Illinois
       Trial Lawyers Association, in support of plaintiff, and by the Illinois Association of
       Defense Trial Counsel and the Township Officials of Illinois Risk Management
       Association, in support of the City. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).


¶ 11                                        ANALYSIS

¶ 12       On appeal of an order granting summary judgment, a reviewing court must
       determine whether “the pleadings, depositions, and admissions on file, together
       with the affidavits, if any, show that there is no genuine issue as to any material fact
       and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS
       5/2-1005(c) (West 2012). The purpose of summary judgment is not to try an issue
       of fact but to determine whether one exists. Adams v. Northern Illinois Gas Co.,
       211 Ill. 2d 32, 42-43 (2004). “A genuine issue of material fact precluding summary
       judgment exists where the material facts are disputed, or, if the material facts are
       undisputed, reasonable persons might draw different inferences from the
       undisputed facts.” Adames v. Sheahan, 233 Ill. 2d 276, 296 (2009). Although
       summary judgment is encouraged in order to aid the expeditious disposition of a
       lawsuit, it is a drastic means of disposing of litigation. Adams, 211 Ill. 2d at 43.
       Consequently, a court must construe the evidence in the record strictly against the
       movant and should grant summary judgment only if the movant’s right to a
       judgment is clear and free from doubt. Id. On appeal from an order granting
       summary judgment, a reviewing court must consider whether the existence of a



                                                -4-
       genuine issue of material fact should have precluded the dismissal or, absent such
       an issue of fact, whether summary judgment is proper as a matter of law. Kedzie &
       103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17 (1993). We
       review the trial court’s summary judgment ruling de novo. Barnett v. Zion Park
       District, 171 Ill. 2d 378, 385 (1996).


¶ 13                                    I. Tort Immunity Act

¶ 14       At issue is whether the City is entitled to immunity from liability pursuant to
       sections 2-109 and 2-201 of the Act. Determining whether the City is immune
       involves interpreting the language of the Act. Michigan Avenue National Bank v.
       County of Cook, 191 Ill. 2d 493, 503 (2000). This is a question of law, which this
       court reviews de novo. See id.; Smith v. Waukegan Park District, 231 Ill. 2d 111,
       115 (2008); Barnett, 171 Ill. 2d at 385. Our primary objective in interpreting a
       statute is to ascertain and give effect to the intent of the legislature. Taylor v. Pekin
       Insurance Co., 231 Ill. 2d 390, 395 (2008). The most reliable indicator of that intent
       is the statutory language, given its plain and ordinary meaning. Id. We view the
       statute as a whole, bearing in mind the subject it addresses and the apparent intent
       of the legislature in enacting it. People ex rel. Madigan v. Wildermuth, 2017 IL
       120763, ¶ 17. Words and phrases should not be viewed in isolation but, rather, must
       be considered in light of other relevant provisions in the statute. In re E.B., 231 Ill.
       2d 459, 466 (2008).

¶ 15       In 1965, the General Assembly enacted the Act in response to this court’s
       abolition of sovereign immunity. Molitor v. Kaneland Community Unit District No.
       302, 18 Ill. 2d 11 (1959); Barnett, 171 Ill. 2d at 386; see also Ill. Const. 1970, art.
       XIII, § 4 (recognizing the abolition of sovereign immunity, “[e]xcept as the
       General Assembly may provide by law”). The Act protects local public entities and
       their employees from liability arising from government operations. Van Meter v.
       Darien Park District, 207 Ill. 2d 359, 368 (2003); 745 ILCS 10/1-101.1(a) (West
       2012). The purpose of the Act is to prevent the dissipation of public funds on
       damage awards in tort cases. Murray v. Chicago Youth Center, 224 Ill. 2d 213, 229
       (2007) (citing Van Meter, 207 Ill. 2d at 368). Unless a specific immunity provision
       in the Act applies, a public entity is liable in tort to the same extent as a private
       party. Id. Since the Act is in derogation of the common law, it must be construed




                                                 -5-
       strictly against the public entity seeking immunity. Snyder v. Curran Township,
       167 Ill. 2d 466, 477 (1995); Aikens v. Morris, 145 Ill. 2d 273, 277-78 (1991).

¶ 16       The trial court granted summary judgment to the City on the grounds that it was
       entitled to immunity under sections 2-109 and 2-201 of the Act. Read together,
       these sections immunize a public entity from liability for the discretionary acts or
       omissions of its employees. See Smith, 231 Ill. 2d at 118 (citing Arteman v. Clinton
       Community Unit School District No. 15, 198 Ill. 2d 475, 484 (2002), and Village of
       Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 496 (2001)).

¶ 17      Section 2-109 of the Act states:

          “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 2012).

¶ 18      Section 2-201 of the Act states:

          “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.” Id. § 2-201.

       The conditional language in section 2-201, “[e]xcept as otherwise provided by
       Statute,” indicates that the legislature did not intend for the immunity in this
       provision to be absolute and applicable in all circumstances. See Murray, 224 Ill.
       2d at 232. Thus, discretionary immunity under section 2-201 “is contingent upon
       whether other provisions, either within the Act or some other statute, create[ ]
       exceptions to or limitations on that immunity.” Id.

¶ 19       Plaintiff first argues that the City cannot claim discretionary immunity under
       sections 2-109 and 2-201 of the Act because section 3-102(a) supersedes these
       provisions. Section 3-102(a) states:

          “(a) Except as otherwise provided in this Article, a local public entity has the
          duty to exercise ordinary care to maintain its property in a reasonably safe
          condition for the use in the exercise of ordinary care of people whom the entity
          intended and permitted to use the property in a manner in which and at such




                                              -6-
           times as it was reasonably foreseeable that it would be used, and shall not be
           liable for injury unless it is proven that it has actual or constructive notice of the
           existence of such a condition that is not reasonably safe in reasonably adequate
           time prior to an injury to have taken measures to remedy or protect against such
           condition.” 745 ILCS 10/3-102(a) (West 2012).

¶ 20        Plaintiff characterizes section 3-102(a) as an immunity provision similar to
       other immunity provisions in the Act. She argues that section 3-102(a) “directly
       governs a local public entity’s immunity relating to a dangerous condition of its
       property.” In support, plaintiff points to the rule of statutory construction that holds
       that, “ ‘[w]here there are two statutory provisions, one of which is general and
       designed to apply to cases generally, and the other is particular and relates to only
       one subject, the particular provision must prevail.’ ” Hernon v. E.W. Corrigan
       Construction Co., 149 Ill. 2d 190, 195 (1992) (quoting Bowes v. City of Chicago, 3
       Ill. 2d 175, 205 (1954)). Relying on this rule, plaintiff contends that the City cannot
       claim discretionary immunity under the Act because the specific “immunities” in
       section 3-102(a) prevail over the general immunities in sections 2-109 and 2-201
       and the City has failed to show it is entitled to immunity under section 3-102(a). We
       reject this argument.

¶ 21       The fatal flaw in plaintiff’s reasoning is that section 3-102(a) does not grant any
       immunities. Section 3-102(a) contains two main clauses. The first clause states that
       a local public entity has a “duty to exercise ordinary care to maintain its property in
       a reasonably safe condition for the use in the exercise of ordinary care of people
       whom the entity intended and permitted to use the property in a manner in which
       and at such times as it was reasonably foreseeable that it would be used.” 745 ILCS
       10/3-102(a) (West 2012). The second clause states that a local public entity “shall
       not be liable for injury unless it is proven that it has actual or constructive notice of
       the existence of such a condition that is not reasonably safe in reasonably adequate
       time prior to an injury to have taken measures to remedy or protect against such
       condition.” Id.

¶ 22       Plaintiff acknowledges that the first clause simply sets forth a general duty on
       the part of a local public entity to maintain its property in a reasonably safe
       condition under certain circumstances. She argues, however, that the second clause
       in the statute operates as an immunity provision. According to plaintiff, section




                                                 -7-
       3-102(a) immunizes local public entities from liability for the failure to maintain
       their property if either of two conditions exist: (1) the public entity lacks sufficient
       notice of the dangerous condition, or (2) the public entity lacks sufficient time to
       correct the dangerous condition.

¶ 23       Plaintiff’s reading of the second clause in section 3-102(a) is erroneous. The
       statute clearly refers to the plaintiff’s burden to prove the defendant had actual or
       constructive notice of the dangerous condition of the property within a reasonable
       amount of time to remedy or protect against the condition. See id. (“a local public
       entity *** shall not be liable for injury unless it is proven that it has actual or
       constructive notice of the existence of such a condition *** in reasonably adequate
       time prior to an injury to have taken measures to remedy or protect against such
       condition” (emphasis added)). It is the plaintiff’s burden to allege and prove all of
       the elements of a negligence claim, including a duty owed by the defendant, a
       breach of that duty, and that the breach was the proximate cause of the plaintiff’s
       injuries. First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 256 (1999).
       Under section 3-102(a), actual or constructive notice of a dangerous condition is an
       element of a negligence claim. See Lansing v. County of McLean, 69 Ill. 2d 562,
       572-73 (1978) (actual or constructive notice requirement in section 3-102 of the
       Act is a necessary predicate of a duty on the part of the defendant public entity);
       Glass v. City of Chicago, 323 Ill. App. 3d 158, 162-64 (2001) (the plaintiff has the
       burden to prove actual or constructive notice under section 3-102(a)). By contrast,
       the immunities in the Act are affirmative defenses, which the defendant has the
       burden to plead and prove. Van Meter, 207 Ill. 2d at 370. Consequently, if the
       purpose of section 3-102(a) were to grant immunity to a local public entity, as
       plaintiff argues, the statute would refer to the burden of proof imposed on the
       defendant, not the plaintiff.

¶ 24        For this reason, no court has held that section 3-102(a) grants immunity to
       municipalities. Rather, the courts of this state have uniformly held that section
       3-102(a) merely codifies the common-law duty of a local public entity to maintain
       its property in a reasonably safe condition. See Bruns v. City of Centralia, 2014 IL
       116998, ¶ 15; Bubb v. Springfield School District 186, 167 Ill. 2d 372, 377-78
       (1995); Wagner v. City of Chicago, 166 Ill. 2d 144, 150 (1995); West v. Kirkham,
       147 Ill. 2d 1, 14 (1992); Vesey v. Chicago Housing Authority, 145 Ill. 2d 404,
       412-15 (1991); Curtis v. County of Cook, 98 Ill. 2d 158, 163 (1983); Goodknight v.




                                                -8-
       Piraino, 197 Ill. App. 3d 319, 327 (1990); Swett v. Village of Algonquin, 169 Ill.
       App. 3d 78, 92 (1988); Horrell v. City of Chicago, 145 Ill. App. 3d 428, 435 (1986);
       Warchol v. City of Chicago, 75 Ill. App. 3d 289, 294 (1979); David C. Baum, Tort
       Liability of Local Governments and Their Employees: An Introduction to the
       Illinois Immunity Act, 1966 U. Ill. L.F. 981, 1012. As this court has stated:

          “[T]he language in section 3-102(a) is clear: the city has a duty to maintain its
          property in a reasonably safe condition so that persons using ordinary care are
          not harmed. ***

                                              ***

              *** [T]he purpose of section 3-102(a) is not to grant defenses and
          immunities. Instead, it merely codifies, for the benefit of intended and permitted
          users, the common law duty of a local public body to properly maintain its
          roads. Immunities and defenses are provided in other sections. [Citation.]”
          (Emphases added.) Wagner, 166 Ill. 2d at 151-52.

¶ 25       Accordingly, we conclude that the statutory language does not support
       plaintiff’s characterization of section 3-102(a) as an immunity provision. Because
       section 3-102(a) does not confer immunity, it cannot override or supersede the
       immunities set forth in sections 2-109 and 2-201. These sections simply do not
       conflict with each other. Therefore, the principle that a specific immunity provision
       prevails over a general immunity provision is inapplicable. See Kennell v. Clayton
       Township, 239 Ill. App. 3d 634, 639-40 (1992).

¶ 26       Plaintiff next argues that the City cannot claim discretionary immunity under
       sections 2-109 and 2-201 because these sections are located in article II of the Act.
       She points to the first phrase in section 3-102(a), which states, “[e]xcept as
       otherwise provided in this Article, a local public entity has the duty” to exercise
       ordinary care to maintain its property. 745 ILCS 10/3-102(a) (West 2012). Plaintiff
       interprets this phrase to mean that the only immunities available to a public entity
       for claims involving the maintenance of property are those in article III of the Act.
       Because sections 2-109 and 2-201 are not found in article III, plaintiff contends
       they are inapplicable here. Once again, plaintiff’s argument misconstrues the
       statutory language.




                                               -9-
¶ 27       The plain language in section 3-102(a) states that a local public entity has
       certain duties, except as otherwise provided in article III. The statute says nothing
       about immunities. In West, 147 Ill. 2d at 14, this court considered the language in
       section 3-102(a) and concluded that the phrase “[e]xcept as otherwise provided in
       this Article” limits the scope of a municipality’s duty as set forth in that section. At
       issue in West was whether a municipality’s duty to maintain its property included
       the duty to install a left turn arrow at an intersection. We held: “It is ‘otherwise
       provided’ in section 3-104, which is located in article III with section 3-102(a), that
       a municipality does not have a duty to provide traffic control devices.” (Emphases
       in original.) Id. Thus, this court interpreted the conditional language in section
       3-102(a) to be a limitation on the scope of the general duty to maintain property. Id.
       We did not find the language limited the scope of immunities available to a
       defendant. Plaintiff’s argument is at odds with precedent and simply not supported
       by the language in the Act.

¶ 28       Under the plain language of the Act, a negligence claim based on a
       municipality’s violation of the duty to maintain its property can be subject to
       discretionary immunity under section 2-201, depending on the facts in the case. We
       now address whether the immunity provisions apply here.

¶ 29        Whether an act or omission is classified as discretionary within the meaning of
       section 2-201 escapes precise formulation and should be made on a case-by-case
       basis in light of the particular facts and circumstances. Snyder, 167 Ill. 2d at 474
       (citing Johnston v. City of Chicago, 258 Ill. 494, 497 (1913), and Johnston v. City
       of East Moline, 405 Ill. 460, 466 (1950)). Immunity under section 2-201 is
       absolute, covering both negligent and willful and wanton conduct. In re Chicago
       Flood Litigation, 176 Ill. 2d 179, 195-96 (1997). A defendant claiming immunity
       under this section must prove its employee held either a position involving the
       determination of policy or a position involving the exercise of discretion. Harinek
       v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 341 (1998). In addition,
       the defendant must establish that the act or omission giving rise to the injuries was
       both a determination of policy and an exercise of discretion. Id.

¶ 30       Policy determinations are defined as “ ‘those decisions which require the
       municipality to balance competing interests and to make a judgment call as to what
       solution will best serve each of those interests.’ ” Id. at 342 (quoting West, 147 Ill.




                                                - 10 -
       2d at 11). Discretionary decisions are “unique to a particular public office” (Snyder,
       167 Ill. 2d at 474) and “involve the exercise of personal deliberation and judgment
       in deciding whether to perform a particular act, or how and in what manner that act
       should be performed” (Wrobel v. City of Chicago, 318 Ill. App. 3d 390, 394-95
       (2000)). In contrast to discretionary and policy decisions, a public entity’s
       ministerial acts are not immune from liability under the Act. See Chicago Flood
       Litigation, 176 Ill. 2d at 193-94. Consequently, the negligent performance of
       ministerial acts can subject a municipality to tort liability. Snyder, 167 Ill. 2d at
       473. 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.” Id. at 474 (citing
       Larson v. Darnell, 113 Ill. App. 3d 975 (1983)).

¶ 31       Plaintiff contends that the trial court’s grant of summary judgment in favor of
       the City must be reversed because there is a genuine issue of material fact as to
       whether the acts or omissions alleged in her complaint are classified as
       discretionary or ministerial. We reject this argument. Whether an act is
       discretionary within the meaning of the Act is a question of law to be decided by a
       court, not a question of fact for a jury. See, e.g., Van Meter, 207 Ill. 2d at 380
       (holding, as a matter of law, that defendants did not meet their burden to establish
       their discretionary immunity defense); 1 Harrison v. Hardin County Community
       Unit School District No. 1, 197 Ill. 2d 466, 474 (2001) (holding, as a matter of law,
       that the school district was entitled to discretionary immunity); Harinek, 181 Ill. 2d
       at 341-43 (holding, as a matter of law, that the city was entitled to discretionary
       immunity); Chicago Flood Litigation, 176 Ill. 2d at 196-97 (holding, as a matter of

           1
             In Van Meter, this court reversed the lower courts’ dismissal of the plaintiffs’ complaint
       pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West
       1994)) because the defendants failed to present sufficient evidence to support their claim of
       discretionary immunity. Van Meter, 207 Ill. 2d at 380. Although we said there were “[q]uestions of
       material fact” as to whether the defendants’ actions were discretionary within the meaning of the
       Act, we did not identify any disputed issues of fact. Id. We simply concluded that the facts necessary
       to sustain defendants’ immunity defense were not apparent on the face of the complaint, nor were
       they supported by affidavit or other evidentiary materials of record. Id. Thus, defendants were not
       entitled to a dismissal as a matter of law. Id. Accordingly, the case does not stand for the proposition
       that whether an act is discretionary or ministerial is a factual question to be decided by the trier of
       fact.




                                                       - 11 -
       law, that the city’s actions were discretionary); Snyder, 167 Ill. 2d at 474-77
       (holding, as a matter of law, that the alleged acts or omissions were properly
       characterized as ministerial, not discretionary). On the tort immunity issue, plaintiff
       does not dispute any facts set forth in the pleadings, depositions, and affidavits, nor
       does she present any additional evidence to contradict the facts of record. Thus,
       there are no genuine issues of material fact, and the only issue is whether the City is
       entitled to immunity as a matter of law under the Act.

¶ 32        In her complaint, plaintiff alleged the City breached its duty to maintain its
       premises in a reasonably safe condition by, among other things, allowing a portion
       of its sidewalk to become sunken, broken, or uneven; failing to correct or repair the
       sidewalk; and failing to warn pedestrians of the dangerous condition of the
       sidewalk. The City contends these alleged acts or omissions were discretionary in
       nature because the decisions to repair certain portions of the sidewalk and leave
       other portions alone were a matter of public policy within its employees’ discretion.
       We disagree.

¶ 33       This court has recognized that, depending on the facts, decisions involving
       repairs to public property can be a discretionary matter subject to immunity under
       section 2-201. Chicago Flood Litigation, 176 Ill. 2d at 195 (citing Kennell, 239 Ill.
       App. 3d at 641, citing Lusietto v. Kingan, 107 Ill. App. 2d 239, 244 (1969)).
       However, “ ‘[d]iscretion’ connotes a conscious decision.” Corning v. East Oakland
       Township, 283 Ill. App. 3d 765, 768 (1996). Accordingly, a public entity claiming
       immunity for an alleged failure to repair a defective condition must present
       sufficient evidence that it made a conscious decision not to perform the repair. The
       failure to do so is fatal to the claim. See, e.g., Gutstein v. City of Evanston, 402 Ill.
       App. 3d 610, 626 (2010) (city not entitled to discretionary immunity where no
       evidence showed any repair work was done in an alley, let alone how it was done);
       Corning, 283 Ill. App. 3d at 768-69 (city’s failure to replace a missing stop sign
       was not an exercise of discretion under section 2-201 because there was no
       evidence the city was aware of it or made the decision to remove it).

¶ 34       In this case, the City has not met its burden of establishing that the alleged acts
       or omissions constituted an exercise of discretion and a determination of policy by
       its employees within the meaning of section 2-201. The record shows the City
       began a project to repair its downtown-area sidewalks in the fall of 2011 and




                                                - 12 -
       completed it in the spring of 2012. Larson and Ahrens testified they conducted
       separate walk-throughs of the area and marked or noted the portions of sidewalk
       they felt were in need of repair. Ahrens made the final determinations as to which
       concrete slabs would be repaired, replaced, or removed. Ahrens testified that no
       City policy dictated these decisions. Rather, he relied on a number of factors,
       including the cost and time allowed for the project, the condition of the concrete,
       nearby obstructions, and the path of travel for pedestrians. It is uncontested that the
       sidewalk slabs upon which plaintiff alleges she tripped and fell were not worked on
       during the course of the 2011-12 project. Ahrens stated he did not remember
       inspecting the portion of the sidewalk where plaintiff fell. He testified that section
       would have been included in his overall inspection, however. Ahrens averred in his
       affidavit that, to the best of his knowledge and memory, the portions of sidewalk
       involved in plaintiff’s accident “were either not prioritized to be in need of
       replacement at that time or such replacement could not fit with the allowable time
       and budget for that project.” In his deposition, Ahrens admitted he did not recall
       any conversations or decisions regarding the specific slabs at issue. Ahrens also
       testified he had no e-mails or documents in his possession related to those slabs.

¶ 35       The City has not presented any evidence documenting the decision not to repair
       the particular section of sidewalk at issue in this case. We do not believe the
       legislature intended to apply discretionary immunity under these circumstances.
       Under the City’s rationale, nearly every failure to maintain public property could be
       described as an exercise of discretion. In order to obtain absolute immunity, a city
       would only have to allege (i) it had a general policy or program to inspect its
       property for dangerous conditions, (ii) the defect at issue was included in the
       program, (iii) the defect at issue was not repaired, and (iv) thus, the city exercised
       discretion in deciding not to repair the defect. This reasoning expands the definition
       of discretionary immunity so broadly as to eliminate a city’s duty to maintain its
       property. See Id. (rejecting township’s argument that its failure to maintain or
       inspect its property was an act of discretion as an “ ‘impermissibly expansive
       definition of discretionary immunity’ ” (quoting Snyder, 167 Ill. 2d at 472)).

¶ 36       The facts in this case stand in marked contrast to another case involving a
       sidewalk defect. In Richter v. College of Du Page, 2013 IL App (2d) 130095, ¶¶ 1,
       4, a student filed a negligence action against the College of Du Page (College) after
       tripping and falling on an uneven sidewalk. The College moved for summary




                                               - 13 -
       judgment based on immunity under sections 2-109 and 2-201 of the Act. The trial
       court granted the motion, and the appellate court affirmed the entry of summary
       judgment. Id. ¶¶ 24, 50. The record showed Chris Kornsey, the manager of the
       buildings-and-grounds department, had unfettered discretion as to the handling of
       each sidewalk deviation, including the one at issue. Id. ¶ 41. The College’s policy
       for handling such deviations involved three levels: “first, placing orange cones to
       alert individuals to the deviation; second, applying yellow paint; and third,
       physically altering the sidewalk, if necessary.” Id. Kornsey’s own policy “was to
       use a wait-and-see approach to determine the level of correction required, if any.”
       Id. He testified that he “made a ‘per-case’ decision or judgment call depending on
       the height, timing, and location of the deviation.” Id. ¶ 44.

¶ 37       Sometime prior to the date of the plaintiff’s accident, Kornsey was notified of
       the defect because someone else had tripped on the same uneven sidewalk. Id.
       ¶¶ 20, 41. Kornsey placed orange cones and applied yellow paint at the site. The
       cones and paint were present at the time the plaintiff tripped and fell on the
       sidewalk. Id. ¶¶ 41, 44-45. After that incident, Kornsey waited until after the final
       thaw of the year to physically repair the sidewalk. Id. ¶ 21. He stated that patch
       work was done and the entire area was “ ‘planed down.’ ” Id. The court held
       Kornsey’s handling of the sidewalk deviation constituted an exercise of discretion
       and a determination of policy within the meaning of section 2-201. Id. ¶ 50. The
       College thus was absolutely immune from liability pursuant to sections 2-109 and
       2-201 of the Act. Id.

¶ 38       In contrast to the record before the Richter court, the record in this case contains
       no evidence of the City’s decision-making process with respect to the specific site
       of plaintiff’s accident. While the City presented evidence that the site was included
       in an overall evaluation of its sidewalks, there are no facts regarding the City’s
       assessment of the actual site. We do not know which factors were taken into
       account by the City in deciding not to repair the sidewalk. More importantly, we do
       not know whether anyone even took note of a sidewalk deviation at that location, or
       whether it was simply overlooked. The record before us thus does not contain
       sufficient evidence to establish that the City’s handling of the sidewalk defect
       constituted an exercise of discretion.




                                                - 14 -
¶ 39       Construing the Act strictly against the City, we conclude it has not met its
       burden to prove it is entitled to discretionary immunity under sections 2-109 and
       2-201 of the Act as a matter of law. We hold, therefore, that the City is not entitled
       to summary judgment based on its claim of discretionary immunity.


¶ 40                                  II. De Minimis Defect

¶ 41       The City asks this court to affirm the trial court’s order granting summary
       judgment on the alternative basis that the allegedly defective seam in the sidewalk
       was de minimis. Although the lower courts did not rule on this issue, we may affirm
       the judgment of the appellate court on any basis appearing in the record. Beacham
       v. Walker, 231 Ill. 2d 51, 61 (2008). In order to recover for negligence, a plaintiff
       must allege the defendant owed a duty of care, the defendant breached that duty,
       and the breach was a proximate cause of his or her injuries. Krywin v. Chicago
       Transit Authority, 238 Ill. 2d 215, 225 (2010). In a negligence action for injuries
       arising out of defects on public property, a plaintiff must allege that the city had a
       duty to maintain its property in a reasonably safe condition for those exercising
       ordinary care and that it had actual or constructive notice of the existence of the
       defect within a reasonably adequate time to have taken measures to protect against
       injuries. 745 ILCS 10/3-102(a) (West 2012); Wagner, 166 Ill. 2d at 151.

¶ 42       Illinois courts follow a de minimis rule in assessing injury claims resulting from
       deviations in adjoining sidewalk slabs. Burns v. City of Chicago, 2016 IL App (1st)
       151925, ¶ 20 (citing Bledsoe v. Dredge, 288 Ill. App. 3d 1021, 1023 (1997)).
       Reasoning that a municipality is not required to keep its sidewalks in perfect
       condition at all times, courts hold that slight defects are de minimis and not
       actionable as a matter of law. Id. A sidewalk defect is considered de minimis if a
       reasonably prudent person would not foresee some danger to persons walking on it.
       Id. ¶ 21 (citing Arvidson v. City of Elmhurst, 11 Ill. 2d 601, 605 (1957)).

¶ 43       There is no mathematical formula or bright-line test for determining whether a
       sidewalk defect is de minimis. Thus, the question turns on the facts of each case.
       Warner v. City of Chicago, 72 Ill. 2d 100, 104 (1978). Factors relevant to this
       analysis include the difference in height between adjoining slabs, the anticipated
       volume of traffic on the sidewalk and whether the sidewalk is located in a
       commercial or residential area. Birck v. City of Quincy, 241 Ill. App. 3d 119, 122



                                               - 15 -
       (1993). Injuries on sidewalks located in well-traversed or busy commercial areas
       are more likely to result in liability than those in residential areas. Warner, 72 Ill. 2d
       at 104; Baker v. City of Granite City, 75 Ill. App. 3d 157, 160 (1979).

¶ 44       In general, unless it is clear the defect is so minimal that no danger to
       pedestrians could reasonably be foreseen, a reviewing court should remand the
       cause for consideration by the fact finder. See, e.g., Warner, 72 Ill. 2d at 104-05
       (conflicting testimony as to whether a height difference between sidewalk slabs in a
       residential neighborhood was 2 inches or only 1⅛ inches presented a question for
       jury); Baker, 75 Ill. App. 3d at 160-61 (whether a crack in a sidewalk between 1¼
       inches and 2 inches in depth constituted an unreasonably dangerous condition
       should be decided by a jury).

¶ 45       For instance, in Arvidson, this court considered whether a defective slab of
       concrete in a commercial district was de minimis. Arvidson, 11 Ill. 2d at 609. The
       slab was “slanted downward toward the street, and was about 1 inch below the
       adjoining slab at one end, and 2 inches below the adjoining slab at the end which
       was nearer to the street.” Id. Since the defective sidewalk was located on a street
       with stores and parking meters, “it could reasonably be foreseen that the area would
       be traversed by pedestrians enroute to the stores.” Id. “Under these circumstances,”
       we held, “it [could not] be found that all reasonable minds would agree that the
       2-inch variation and the height of the adjoining slabs of the sidewalk near the curb
       was so slight a defect that no danger to pedestrians could reasonably be foreseen.”
       Id. We held, therefore, that the negligence claim was properly submitted to the jury.
       Id.

¶ 46       In this case, the City argues the sidewalk defect was de minimis based on what
       the City characterizes as a slight height difference between the slabs of concrete
       involved in plaintiff’s fall. Plaintiff disputes the City’s characterization of the
       minimal nature of the defect. Two photographs in the record depicting the area
       where plaintiff fell, dated January 25, 2013, show a person holding a measuring
       tape next to what appears to be a concrete slab raised at a higher elevation than the
       adjoining slab. After viewing the photos, we are unable to ascertain a precise
       measurement of the height discrepancy. The photos do not clearly show whether
       the height was exactly two inches, as plaintiff argues, or less than two inches, as the
       City argues. The sidewalk depicted in the photos also contains ice and snow, which




                                                 - 16 -
       further hinders our ability to assess the seriousness of the defect. In addition, while
       the sidewalk is located in a commercial area, the record contains no evidence of the
       amount of foot traffic near that location.

¶ 47       Based on the totality of the circumstances, we are unable to find that all
       reasonable minds would agree the alleged sidewalk defect was so minimal that no
       danger to pedestrians could reasonably be foreseen. See id. In evaluating a motion
       for summary judgment, we are limited to the record as it existed at the time the
       motion was presented to the trial court. McCullough v. Gallaher & Speck, 254 Ill.
       App. 3d 941, 947 (1993). After reviewing the evidence in the record, we agree with
       plaintiff that genuine issues of material fact exist with respect to whether the
       sidewalk defect was de minimis. We thus find the City was not entitled to a
       judgment as a matter of law on this issue.


¶ 48                                      CONCLUSION

¶ 49       For the foregoing reasons, we reverse the judgments of the appellate court and
       the circuit court granting summary judgment to the City on the basis of statutory
       immunity and remand the cause to the circuit court for further proceedings. Upon
       remand, the circuit court is directed to consider the remaining argument presented
       in the City’s motion for summary judgment, that the condition of the sidewalk was
       open and obvious.


¶ 50       Reversed.

¶ 51       Cause remanded with directions.


¶ 52       JUSTICE THOMAS, specially concurring:

¶ 53       The central issue in this case concerns which of two possible provisions in the
       Local Governmental and Governmental Employees Tort Immunity Act (Act) (745
       ILCS 10/1-101 et seq. (West 2012)) governs the outcome—the general
       discretionary immunity provision of section 2-201 found in article II of the Act (id.
       § 2-201) or the specific provision governing a municipality’s duty to repair found
       in section 3-102 of article III of the Act (id. § 3-102). In other words, the question is




                                                - 17 -
       how to reconcile section 2-201 with section 3-102 of the Act where a plaintiff
       maintains section 3-102 controls over section 2-201. The majority concludes that
       nothing in the statutory language limits the scope of the immunity in section 2-201
       and that “[p]laintiff’s argument is at odds with precedent and simply not supported
       by the language in the Act.” Supra ¶ 27. The majority so finds without considering
       any precedent on point and without examining the language of section 2-201 that
       specifically limits the scope of the immunity found in that section.

¶ 54       The plain meaning of the statutory language indicates that section 3-102 was
       intended to control over section 2-201 where a local public entity fails to remedy or
       protect against a condition on its property that rendered it not reasonably safe for
       permitted and intended users exercising ordinary care and where the public entity
       had notice of the unsafe condition. See 745 ILCS 10/3-102 (West 2012). The
       majority’s reasoning to the contrary is not correct. Accordingly, I cannot join the
       majority opinion. I do agree, however, with the majority’s ultimate conclusion that
       the grant of summary judgment for the City should be reversed and the cause
       remanded for further proceedings.

¶ 55        The prefatory language to the general discretionary immunity of section 2-201
       states that the immunity applies “[e]xcept as otherwise provided by [s]tatute.” Id.
       § 2-201. This prefatory language indicates “that section 2-201 immunity is
       contingent upon whether other provisions, either within the Act or some other
       statute, create[ ] exceptions to or limitations on that immunity.” Murray v. Chicago
       Youth Center, 224 Ill. 2d 213, 232 (2007). Put another way, “the phrase ‘[e]xcept as
       otherwise provided by Statute’ indicates that the legislature contemplated the
       existence of conflicting statutory mandates that may obviate application of section
       2-201.” Arteman v. Clinton Community School District No. 15, 198 Ill. 2d 475, 491
       (2002) (Kilbride, J., dissenting, joined by Harrison, C.J.). In fact, this court has held
       it to be error for a court to find that the discretionary immunity of section 2-201
       abrogates a duty set forth in a statute. See Snyder v. Curran Township, 167 Ill. 2d
       466, 472 (1995).

¶ 56       In Courson v. Danville School District No. 118, 333 Ill. App. 3d 86, 92 (2002),
       the court specifically found that section 3-102 codifies the duty of a public entity to
       exercise reasonable care to maintain its property and is therefore a provision
       “otherwise provided by [s]tatute” within the meaning of section 2-201. Courson




                                                - 18 -
       observed that section 3-102 is not simply a judicially created exception like that
       involved in Arteman, 198 Ill. 2d at 483, a case where the court refused to extend a
       judicially created rule so as prevent immunity under section 2-201. Courson, 333
       Ill. App. 3d at 92. Rather, section 3-102 is a provision that is “otherwise provided
       by [s]tatute,” which therefore negates the immunity of section 2-201. Id.

¶ 57      I would hold that section 3-102 is precisely the kind of conflicting statutory
       mandate that obviates section 2-201. Section 3-102 provides as follows:

          “(a) Except as otherwise provided in this Article, a local public entity has the
          duty to exercise ordinary care to maintain its property in a reasonably safe
          condition for the use in the exercise of ordinary care of people whom the entity
          intended and permitted to use the property in a manner in which and at such
          times as it was reasonably foreseeable that it would be used, and shall not be
          liable for injury unless it is proven that it has actual or constructive notice of the
          existence of such a condition that is not reasonably safe in reasonably adequate
          time prior to an injury to have taken measures to remedy or protect against such
          condition.

              (b) A public entity does not have constructive notice of a condition of its
          property that is not reasonably safe within the meaning of Section 3-102(a) if it
          establishes either:

              (1) The existence of the condition and its character of not being reasonably
          safe would not have been discovered by an inspection system that was
          reasonably adequate considering the practicability and cost of inspection
          weighed against the likelihood and magnitude of the potential danger to which
          failure to inspect would give rise to inform the public entity whether the
          property was safe for the use or uses for which the public entity used or
          intended others to use the public property and for uses that the public entity
          actually knew others were making of the public property or adjacent property;
          or

             (2) The public entity maintained and operated such an inspection system
          with due care and did not discover the condition.” (Emphasis added.) 745 ILCS
          3-102 (West 2012).




                                               - 19 -
¶ 58       The difference in the prefatory language of sections 3-102 and 2-201 is stark.
       Section 2-201 specifically provides that any conflicting statute controls the
       outcome, whereas section 3-102 provides that its provisions can only be obviated
       by a conflicting provision in article III. Thus, it is clear from the legislature’s use of
       the prefatory language “[e]xcept as otherwise provided in this [a]rticle” that the
       detailed provisions of section 3-102 were intended to apply unless one of the
       limitations on liability set forth in that section or an immunity found elsewhere in
       article III applies. Unfortunately for the defendant City in this case, the general
       discretionary immunity in section 2-201 of the Act is found in article II. Thus, by
       the express terms of section 3-102, the immunity in section 2-201 does not apply to
       negate the more specific and contradictory provisions set forth in section 3-102.
       This conclusion is in turn completely compatible with section 2-201’s language
       that mandates a yielding of its immunity when “otherwise provided by [s]tatute.”

¶ 59       The above-tendered analysis would seem to be the end of the matter but for
       defendant’s argument that section 3-102 merely codifies the common-law duty,
       does not create a duty, and does not provide immunity; therefore it cannot be a
       more specific immunity provision that takes precedence over section 2-201.
       According to defendant, then, section 3-102’s duty to maintain property can be
       subject to section 2-201’s discretionary immunity. There are a number of problems
       with defendant’s argument.

¶ 60       While it is true that section 3-102 articulates the duty to which the subsequently
       delineated immunities apply and the Act itself creates no new duties (see Vesey v.
       Chicago Housing Authority, 145 Ill. 2d 404, 412 (1991)), defendant’s argument
       and the majority’s analysis ignore that section 3-102 expresses a clear legislative
       intent that the common-law duty delineated now by statute be applied “[e]xcept as
       otherwise provided in this Article.” And, moreover, section 3-102 is a provision
       “otherwise provided by [s]tatute.” It cannot be emphasized enough that this
       language of the statutory scheme clearly shows that it was the legislature’s intent to
       make the duty set forth in section 3-102 subject only to the immunities and
       exceptions in article III. The majority has not cited a single case that holds
       otherwise.

¶ 61       The majority attempts to support its analysis by citing West v. Kirkham, 147 Ill.
       2d 1 (1992). But that case actually supports my position. There, the appellate court




                                                 - 20 -
       relied upon the duty to maintain property set forth in section 3-102 and held that
       that duty precluded the entry of summary judgment on behalf of the defendant
       public entity. West v. Kirkham, 201 Ill. App. 3d 1051, 1054. This court reversed the
       appellate court and held that the immunity of section 3-104 fell under the “except as
       otherwise provided by this [a]rticle” language of section 3-102 and therefore no
       liability could be imposed. West, 147 Ill. 2d at 14. In so holding, this court reached
       the unremarkable conclusion that the immunity of section 3-104 was not limited
       and that it “clearly and unequivocally states that the municipality is immune from
       all liability arising out of the failure to provide a traffic control device.” (Emphasis
       omitted.) Id. at 7. West additionally described section 3-102 not only as a duty
       provision but also as an immunity provision that expresses the legislative desire to
       limit the immunity afforded therein to situations where the municipality was
       without notice that it had created the unsafe condition. Id. West, then, is simply a
       case where an article III immunity was allowed to negate the duty set forth in
       section 3-102, precisely as contemplated by the prefatory language of section
       3-102. Nothing in West, however, precludes the obvious conclusion that the
       legislature intended to limit the immunities that could negate the duty delineated in
       section 3-102 to those immunities found in article III of the Act.

¶ 62       Given that section 3-102 codifies a duty that runs counter to the general
       discretionary immunity in section 2-201 and is therefore “otherwise provided by
       [s]tatute,” the majority’s claim that section 3-102 provides no immunity is not a
       point crucial to the analysis. At any rate, I disagree with the majority’s conclusion
       that section 3-102 provides no immunity.

¶ 63       It is not at all clear that section 3-102 is strictly a codification of the
       common-law duty. The Tort Immunity Act was enacted, at least in part, as a result
       of this court’s rejection of sovereign immunity in Molitor v. Kaneland Community
       Unit School District No. 302, 18 Ill. 2d 11 (1959), is in derogation of the common
       law, must be strictly construed, and specifies certain limitations on the liability of
       public entities, and “[o]ne of those limitations appears in section 3-102(a).”
       (Emphasis added.) Curtis v. County of Cook, 98 Ill. 2d 158, 165 (1983). Section
       3-102(a) sets forth the common-law duty, to be sure: “a local public entity has a
       duty to exercise ordinary care to maintain its property in a reasonably safe
       condition.” 745 ILCS 10/3-102(a) (West 2012). But it could also be said that the
       section then provides immunity—“a local public entity *** shall not be liable for




                                                - 21 -
       injury.” (Emphasis added.) Id.; West, 147 Ill. 2d at 7 (with section 3-102, “the
       legislature, in clear and deliberate language, expressed its intent to limit th[is]
       section[’s] immunity to situations where the municipality was without notice that it
       had created the unsafe condition” (emphasis omitted and added)); see also Sylvester
       v. Chicago Park District, 179 Ill. 2d 500 (1997) (finding that an argument based on
       lack of constructive notice was an “immunity argument” under section 3-102);
       Pattullo-Banks v. City of Park Ridge, 2014 IL App (1st) 132856, ¶ 15 (finding that
       section 3-102(a) provides “immunity” to a local public entity that breaches its duty
       to exercise ordinary care to maintain its property in a reasonably safe condition
       when (1) the entity did not have actual or constructive notice or (2) the injured
       party failed to use ordinary care or (3) the injured party was not an intended and
       permitted user of the property). And section 3-102(a) also delineates the
       circumstances under which its immunity does not apply—e.g., “unless it is proven
       that it has actual or constructive notice” of the unsafe condition and has adequate
       time prior to the injury to remedy the condition. Section 3-102(b) contains further
       tweaks on the notice provision that are not strictly part of the common-law duty.
       For example, it allows for an inspection system that is subject to a cost-benefit
       analysis of sorts. 745 ILCS 10/3-102(b) (West 2012). Similarly, subsection (a)
       removes from liability, in ways not countenanced by the common-law duty,
       situations involving nonintended and nonpermitted users as well as those involving
       injury to persons not exercising ordinary care. Id. § 3-102(a).

¶ 64       According to the majority, the acid test for characterizing a provision as an
       immunity involves determining which party has the burden of proof. The majority
       says that section 3-102 cannot be an immunity provision because it places the
       burden on plaintiff to prove actual or constructive notice. First of all, section 3-102
       does not anywhere refer to “plaintiff’s burden” of proof, as the majority claims.
       (Emphasis in original.) See supra ¶ 23. Second, the majority misses that the statute
       actually places the burden of proof on the public entity to establish that it lacked
       constructive notice under certain circumstances. 745 ILCS 10/3-102(b) (West
       2012). By the majority’s own definitions, then, section 3-102 must be at least a
       hybrid immunity provision.

¶ 65       The only case cited by the majority for the view that section 3-102 does no more
       than codify the common-law duty and provides no immunity is Wagner v. City of
       Chicago, 166 Ill. 2d 144, 152 (1995), which stated the following:




                                               - 22 -
           “[T]he purpose of section 3-102(a) is not to grant defenses and immunities.
           Instead, it merely codifies, for the benefit of intended and permitted users, the
           common law duty of a local public body to properly maintain its roads.
           Immunities and defenses are provided in other sections.”

¶ 66      This observation from Wagner (1) conflicts with this court’s statements in
       Curtis and West that section 3-102(a) places certain limitations on liability and is an
       immunity provision and (2) does not appear to have been made after a careful
       comparison of section 3-102(a) with the general duty at common law to maintain
       property in a reasonably safe condition.

¶ 67       Nevertheless, even if it can be said that section 3-102 merely codifies the
       common-law duty without providing any limitations on liability or any immunity,
       section 3-102 would still not fall within the reach of the immunity of section 2-201.
       See Courson, 333 Ill. App. 3d at 92. Unlike the situation involving a judicially
       created duty, which this court has held not to be a rule “otherwise provided by
       [s]tatute” (see Arteman, 198 Ill. 2d at 487), the duty set forth in section 3-102(a) has
       been codified and thus falls squarely within the “otherwise provided by [s]tatute”
       language of section 2-201, thus excepting section 3-102(a) from the reach of
       section 2-201’s immunity. Courson, 333 Ill. App. 3d at 91-92.

¶ 68       Additionally, even if Wagner is correct in its assessment that the immunities
       and defenses are found “elsewhere,” section 3-102(a) provides the location of
       “elsewhere”—namely, “as otherwise provided in this Article.” As noted above,
       “this Article” refers to article III, not article II where the section 2-201 immunity is
       located.

¶ 69      This plain reading of the Act makes perfect sense. There are numerous
       immunities found in article III, 2 and as the title of that article suggests, they all

           2
            The article III immunities include the following: immunity for adoption of a plan or design
       (745 ILCS 10/3-103 (West 2012)), immunity for failure to initially provide traffic control devices or
       signs (id. § 3-104), immunity for the effect of weather conditions (id. § 3-105), immunity for
       property used for recreational purposes (id. § 3-106), immunity for use of access roads or trails (id.
       § 3-107), immunity in connection with the supervision of an activity (id. § 3-108), immunity for
       hazardous recreational activities (id. § 3-109), and immunity for injury on a waterway owned by a
       public entity (id. § 3-110).




                                                      - 23 -
       relate to “Immunity From Liability For Injury Occurring In the Use of Public
       Property.” 3 It would only stand to reason that the legislature, having codified the
       duty of care in section 3-102(a), would also delineate that the immunities available
       to negate the duty would be limited to those found in the very same article III.

¶ 70       Sylvester v. Chicago Park District, 179 Ill. 2d 500, is representative of the cases
       that have noted the duty provision of section 3-102 only to find that a plaintiff’s
       claim was ultimately barred by one of the immunities located in article III. There,
       the plaintiff fell and was injured on Chicago Park District property. She alleged that
       the park district breached its duty of care with respect to the area where the injury
       occurred. This court found that the park district was immune from suit under
       section 3-106, an article III immunity that applies to any injury on public property
       intended or permitted to be used for recreational purposes. Id. at 501, 513. As an
       aside, this court in Sylvester referred to the park district’s additional argument that
       it did not have constructive notice of the condition of the property under section
       3-102 as an “immunity argument.” Id. at 511.

¶ 71       The majority cites In re Chicago Flood Litigation, 176 Ill. 2d 179, 195 (1997),
       for the proposition that “[t]his court has recognized that, depending on the facts,
       decisions involving repairs to public property can be a discretionary matter subject
       to immunity under section 2-201.” Supra ¶ 33. But any reliance by the majority on
       Chicago Flood to support the notion that section 2-201 may control over section
       3-102 to provide immunity for a public entity’s decision to refuse to repair an
       unsafe condition on its premises would be misplaced. The issues involved in
       Chicago Flood had nothing to do with the question before us here, as that case did
       not involve an occasion to consider the interplay between section 2-201 and section
       3-102. There, the underground tunnel system below the central business district of
       the city of Chicago flooded, ultimately causing property damage to the nearby
       aboveground private properties. The duty of ordinary care under section 3-102 for
       unsafe conditions on public property was not at issue. None of the plaintiffs in that
       case were even noted to have ever used the tunnel, let alone claimed to have been
       invited and permitted users of it where they then suffered an injury. This court
       properly resolved the issues that were before it in Chicago Flood, but the case gives
       no guidance as to the issue involved in the present case.
          3
           Article II in contrast is titled “General Provisions Relating to Immunity.”




                                                    - 24 -
¶ 72        I would hold that if the plaintiff brings her case within the parameters of section
       3-102 and the defendant public entity is unable to establish any immunity or
       exception found in article III, then potential liability should exist if the wish of the
       legislature as expressed in the plain meaning of the statute is to be carried out. After
       all, the chief goal of this court in construing any statutory scheme is to discern and
       give effect to the intent of the legislature, and the most reliable indication of that
       intent is the plain and ordinary meaning of the words used. People ex rel. Madigan
       v. Wildermuth, 2017 IL 120763, ¶ 17.

¶ 73       With the possible exception of Richter v. College of Du Page, 2013 IL App (2d)
       130095, the majority has not cited a single case finding a public entity immune
       from liability under section 2-201 where a plaintiff raised section 3-102 and could
       satisfy its requirements. Richter, however, is either distinguishable on its facts or a
       wrongly decided aberration. The defendant in that case actually took measures to
       protect against the sidewalk defect by putting down orange cones and highlighting
       the defect with yellow paint until the period of winter freeze and thaw ended and
       the defect could be reasonably repaired. Id. ¶ 15. To the extent that Richter can be
       construed as holding that section 2-201 trumps section 3-102 where section 3-102
       is properly raised by the plaintiff and the defendant public entity takes no
       reasonable action to repair or otherwise remedy the unsafe condition in a
       reasonable period of time, I would find that Richter was wrongly decided and
       should be overruled.

¶ 74       In conclusion, I would find that the legislature intended application of a limited
       number of immunities—confined to article III—for a public entity’s failure to
       repair its unsafe property. It did not intend to erase the specific language of section
       3-102 with section 2-201’s general discretionary immunity. Otherwise a municipal
       official could simply inspect and list everything that is defective and dangerous and
       institute a “policy decision” not to repair it, thus obliterating section 3-102. This
       obviously could not have been the intent of the legislature.

¶ 75      Accordingly, I depart from the majority’s contrary conclusions.

¶ 76      JUSTICES KILBRIDE and THEIS join in this special concurrence.




                                                - 25 -
