                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




             Pleasant Hill Cemetery Ass’n v. Morefield, 2013 IL App (4th) 120645




Appellate Court            PLEASANT HILL CEMETERY ASSOCIATION and KEITH SMITH,
Caption                    Plaintiffs-Appellants, v. TIMOTHY MOREFIELD, Road Commissioner
                           of the Arrowsmith Township Road District, Defendant-Appellee.



District & No.             Fourth District
                           Docket No. 4-12-0645


Filed                      April 10, 2013


Held                       Plaintiff’s action seeking damages arising from defendant road
(Note: This syllabus       commissioner’s alteration of the surface flow of water onto plaintiff’s
constitutes no part of     farmland was barred by the Tort Immunity Act, regardless of plaintiff’s
the opinion of the court   contention that the complaint was not an action in tort, since, even
but has been prepared      assuming that the Act applies only to actions in tort, unreasonably
by the Reporter of         altering the flow of surface water amounts to the tort of nuisance.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of McLean County, No. 11-MR-245; the
Review                     Hon. Paul G. Lawrence, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Mercer Turner (argued), of Law Office of Mercer Turner, P.C., of
Appeal                     Bloomington, for appellants.

                           Robert J. Lenz (argued), of Bloomington, for appellee.


Panel                      JUSTICE APPLETON delivered the judgment of the court, with opinion.
                           Presiding Justice Steigmann and Justice Knecht concurred in the
                           judgment and opinion.



                                              OPINION

¶1          The plaintiffs in this case are Pleasant Hill Cemetery Association (Association) and Keith
        Smith. The Association owns some farmland, which Smith, as a tenant farmer, rents from
        the Association. The defendant is Timothy Morefield, the highway commissioner of
        Arrowsmith Township. Plaintiffs brought this case against Morefield for allegedly altering
        the surface flow of water, and thereby damaging the farmland, by some work he did on 3200
        East Road in Arrowsmith Township.
¶2          Invoking the immunity in section 2-201 of the Local Governmental and Governmental
        Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-201 (West 2010)),
        defendant moved to dismiss the amended complaint as “barred by *** affirmative matter
        avoiding the legal effect of or defeating the claim”–the “affirmative matter” being, of course,
        the immunity (735 ILCS 5/2-619(a)(9) (West 2010)). The trial court granted defendant’s
        motion, dismissing the amended complaint with prejudice. Plaintiffs appeal.
¶3          In their appellate briefs, plaintiffs offer no convincing rationale for holding the immunity
        in section 2-201 (745 ILCS 5/2-201 (West 2010)) to be inapplicable to the work that
        defendant did, as road commissioner, on 3200 East Road. Therefore, we affirm the trial
        court’s judgment.

¶4                                       I. BACKGROUND
¶5           The amended complaint has two counts, both of which allege that defendant violated the
        “Drainage Law” by making “unreasonable and material changes to the natural drainage
        patterns” on land that the Association owned and which Smith, as a tenant farmer, had been
        renting from the Association. Count I is the Association’s action against defendant. Count
        II is Smith’s action against defendant.
¶6           Both counts allege as follows. “In multiple phases during 2008 through 2010, the
        Defendant constructed a new farm drainage system, all related to and along 3200 East Road,
        which materially affects the farm real estate of the [Association], which is contiguous to
        3200 East Road” and “immediately downstream from the changes.”

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¶7       Before defendant began the construction and also during the construction, the
     Association “informed the Defendant of the likely results of its alteration of water diversion,
     difficulty of cultivation to some parts of the [Association’s] land as a result of water
     diversion, and the adverse effects of the concentration of water flow on other parts of [the
     land].” Both counts assert: “When making the changes [in the drainage system], the
     Defendant was willful and wanton because he knew changes would violate the common law
     and statutory obligation to maintain natural drainage patterns, and result in the alteration of
     natural drainage patterns ***.”
¶8       In count I, the Association specifically describes the property damages it allegedly has
     incurred as a result of defendant’s alteration of the natural drainage patterns. For this property
     damage, the Association seeks compensation in an amount in excess of $50,000. Count I
     alleges:
             “9. The changes created by the Defendant in the natural drainage pattern created the
         following adverse conditions for the [Association’s] farm real estate, which have
         damaged the Plaintiff:
                 (a) a reduction in tillable acres,
                 (b) a reduction in the productivity due to the need to delay planting,
                 (c) increased erosion,
                 (d) a need to replace existing drainage tile which will become uncovered as a
             result of erosion, and
                 (e) a need to install additional drainage tile to remove the additional volume of
             water flowing onto the premises, which does not drain away since the additional
             inflow was not placed into an existing drainage pattern[ ],
         which collectively has reduced the value of the [Association’s] farm real estate by an
         amount in excess of $50,000.00, which damage the [Association] is seeking herein.
             10. Plaintiff’s use and enjoyment of his affected land has been unreasonably and
         substantially invaded, creating a confiscatory effect.
             11. The changes described *** above proximately caused the damage Plaintiff has
         suffered.”
¶9       Likewise, in count II, Smith alleges:
             “9. The changes created by the Defendant in the natural drainage pattern caused the
         following adverse conditions for the [Association’s] farm real estate, which have
         damaged [Smith] by reducing his income:
                 (a) a reduction in tillable acres,
                 (b) a reduction in the productivity due to the need to delay planting,
                 (c) increased erosion, and
                 (d) a need to install additional drainage tile to remove the additional volume of
             water onto the premises, which does not drain away since the additional inflow was
             not placed into an existing drainage pattern.
             10. [Smith’s] use and enjoyment of his affected land has been unreasonably and

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           substantially invaded, creating a confiscatory effect.
               11. The changes described *** above proximately caused the damage Plaintiff has
           suffered, which amount [sic] to a reduction in farm income in excess of $50,000.00[ ].”
¶ 10       The prayer in both counts is for a “Judgment against Defendant in an amount in excess
       of $50,000.”
¶ 11       Pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9)
       (West 2010)), defendant moved to dismiss the amended complaint on the ground that “the
       claim asserted against defendant [was] barred by *** affirmative matter.” The affirmative
       matter was defendant’s claimed immunity under section 2-201 of the Tort Immunity Act (745
       ILCS 10/2-201 (West 2010)), which provided that “a public employee serving in a position
       involving the determination of policy or the exercise of discretion [was] 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.” Defendant alleged that all the improvements he had
       made to 3200 East Road “were the result of [his] policy decisions balancing competing
       interests within [his] jurisdiction.” Also, he alleged that the improvements “were the result
       of discretionary acts unique to the office of Township Highway Commissioner.”
¶ 12       Defendant acknowledged that section 3-108 of the Tort Immunity Act (745 ILCS 10/3-
       108 (West 2010)) carved out an exception to immunity if the public employee was “guilty
       of willful and wanton conduct in its supervision proximately causing such injury.”
       Nevertheless, he contended that he could not reasonably be found “guilty of willful and
       wanton acts in performing improvements to 3200 East Road, Arrowsmith Township for the
       safety and well-being of the public merely because Plaintiffs object[ed] to said improvements
       on the basis of their private property interests.”
¶ 13       Along with his motion for dismissal, defendant filed his affidavit, in which he averred
       as follows:
               “1. Affiant is an adult resident of the State of Illinois, is under no legal disability, and
           makes this Affidavit of his own personal knowledge.
               2. I am the duly elected Highway Commissioner of Arrowsmith Township, County
           of McLean, State of Illinois.
               3. During the Spring of 2010 I made a policy decision in my official capacity as
           Township Road Commissioner by making a judgment call that it best served all of the
           interests in my township that I honor Plaintiffs’ request to clean out and deepen the
           township road drainage ditch on the west side of 3200 East Road.
               4. At my direction, and in my discretion as Township Highway Commissioner, the
           drainage ditch in the township road right-of-way on the west side of 3200 East Road was
           clean [sic] out and deepen [sic] during the Spring of 2010.
               5. During 2010 I made a policy decision in my official capacity as Township Road
           Commissioner by making a judgment call that it best served all of the interests in my
           township that the natural flow of water from east to west be dispersed underneath 3200
           East Road rather than flowing over the roadway.
               6. In my official capacity as Township Highway Commissioner I judged that it was


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           necessary as a matter of public safety that the natural flow of water from east to west be
           directed underneath 3200 East Road rather than flowing over the top of the roadway
           where it was washing out the shoulders and thereby creating a hazardous condition.
               7. In support of my policy decision to direct the water, as it continued its natural flow
           to the west, under 3200 East Road rather than on top of it, I directed that improvements
           be made to 3200 East Road during June of 2010 removing one old culvert and installing
           three new culverts in the same location.
               8. In my discretion as Township Highway Commissioner I directed that the three new
           culverts installed during June of 2010 replacing the one old culvert underneath 3200 East
           Road were all of a larger size than the old culvert.
               9. All Arrowsmith Township Road District improvements made to 3200 East Road,
           Arrowsmith Township by and at my direction during the time I have served as
           Arrowsmith Township Highway Commissioner were the result of policy decisions I
           made in my official capacity balancing competing interests and making a judgment call
           as to what solution would best serve each of the competing interests in my jurisdiction.
               10. All Arrowsmith Township Road District improvements made to 3200 East Road,
           Arrowsmith Township by and at my direction during the time I have served as
           Arrowsmith Township Highway Commissioner were the result of discretionary acts
           unique to the office of Township Highway Commissioner undertaken by me.”
¶ 14       Plaintiffs filed no counteraffidavit.

¶ 15                                       II. ANALYSIS
¶ 16                                 A. Our Standard of Review
¶ 17        On appeal from the dismissal of a complaint as barred by affirmative matter (735 ILCS
       5/2-619(a)(9) (West 2010)), our standard of review is de novo. Hellweg v. Special Events
       Management, 2011 IL App (1st) 103604, ¶ 5. That means we perform the same analysis a
       trial court should perform, without giving any deference to the trial court’s ruling. Khan v.
       BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).
¶ 18        We accept as true all well-pleaded facts in the complaint. Hellweg, 2011 IL App (1st)
       103604, ¶ 5. Conclusions do not qualify as “well-pleaded facts.” Hanks v. Cotler, 2011 IL
       App (1st) 101088, ¶ 17. If the amended complaint contains conclusions–either legal
       conclusions or conclusory factual allegations–we disregard them unless they are earned by
       specific allegations of fact. Id.
¶ 19        Whenever it would be reasonably defensible to draw an inference in the plaintiff’s favor
       from the well-pleaded facts, we draw that inference. Id. In other words, we look at the
       complaint in its best possible light. Hellweg, 2011 IL App (1st) 103604, ¶ 5.
¶ 20        In scrutinizing the complaint, we take for granted that it states a cause of action, because
       a motion for dismissal pursuant to section 2-619(a) (735 ILCS 5/2-619(a) (West 2010))
       admits the legal sufficiency of the complaint (Solaia Technology, LLC v. Specialty
       Publishing Co., 221 Ill. 2d 558, 578-79 (2006)), while asserting defects or defenses outside
       the complaint that defeat the claim (Solaia, 221 Ill. 2d at 578-79). Instead of refuting any

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       allegation of material fact in the complaint, affirmative matter negates the claim as a whole.
       Provenzale v. Forister, 318 Ill. App. 3d 869, 878 (2001).
¶ 21       Unless the affirmative matter is already apparent on the face of the complaint, the
       defendant must support the affirmative matter with an affidavit or with some other material
       that could be used to support a motion for summary judgment. Kedzie & 103rd Currency
       Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993). The plaintiff then must come forward
       with a counteraffidavit refuting the evidentiary facts in the defendant’s affidavit, or else those
       facts will be deemed admitted. Id. Given the affidavits and pleadings, we decide whether
       there is a genuine issue of material fact that should have precluded the dismissal of the
       complaint, or, alternatively, if there is no genuine issue of material fact, we decide whether
       the dismissal was legally justified. Id. at 116-17.

¶ 22            B. Plaintiffs’ Contention That Their Actions Do Not Sound in Tort
¶ 23        Plaintiffs quote the appellate court’s reasoning in Raintree Homes, Inc. v. Village of Long
       Grove, 335 Ill. App. 3d 317, 320 (2002), that “the Tort Immunity Act *** applies only to
       actions in tort.” That case, however, went to the supreme court, and the supreme court was
       unconvinced by the appellate court’s reasoning that the Tort Immunity Act applied only to
       tort actions. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 261 (2004) (“we
       do not adopt or approve of the appellate court’s reasoning that the Tort Immunity Act
       categorically excludes actions that do not sound in tort”). In any event, plaintiffs argue that
       their actions, which allege violations of the “Drainage Law,” are not actions in tort and that,
       hence, section 2-201 of the Tort Immunity Act (745 ILCS 10/2-201 (West 2010)) affords
       defendant no immunity to their actions.
¶ 24        Assuming, for the sake of argument, that the Tort Immunity Act applies only to actions
       in tort, plaintiffs’ actions do sound in tort. Damaging someone’s land by unreasonably
       altering the flow of surface water is a nuisance (Meyers v. Kissner, 149 Ill. 2d 1, 10-11
       (1992)), and a nuisance is a tort (In re Chicago Flood Litigation, 176 Ill. 2d 179, 207
       (1997)). In fact, the Restatement (Second) of Torts has a section devoted to this type of tort,
       section 833, entitled “Interference With the Flow of Surface Waters.” Restatement (Second)
       of Torts § 833 (1979). Comment b of section 833 describes the same tortious interference
       with water drainage that plaintiffs allege in their amended complaint:
            “When one person drains or cultivates his land, grades it or builds roads, structures or
            embankments upon it, he usually interferes with the flow of surface waters upon or
            across it; and this interference often causes harm to a neighbor in the use and enjoyment
            of his land. That harm may arise from the backing up of water on the neighbor’s land or
            from an increase in the flow of the water or from a change in its direction or velocity. ***
            Whatever the particular situation may be, the same general rules apply in determining
            liability for the invasion of the neighbor’s interest in the use and enjoyment of his land
            as apply when an invasion results through vibrations, noise, smoke or the pollution of
            waters. In all these cases the type of interest invaded is the same, the only difference
            being in the manner in which the invasion is caused and in the type of conduct that
            causes it.” Restatement (Second) of Torts § 833 cmt. b (1979).


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       As comment b confirms, plaintiffs’ actions are classic actions in tort. Therefore, the Tort
       Immunity Act applies to their actions.

¶ 25               C. Plaintiffs’ Attempt To Relabel, as Restitution, the Damages
                      That They Explicitly Seek in Their Amended Complaint
¶ 26       Section 2-101 of the Tort Immunity Act (745 ILCS 10/2-101 (West 2010)) provides:
       “Nothing in this Act affects the right to obtain relief other than damages against a local
       public entity or public employee.” Plaintiffs argue that the relief they seek in their amended
       complaint is not damages. They argue that, instead, they “are merely seeking a remedy
       comparable in nature to restitution.” They cite Raintree, a case in which seeking a monetary
       remedy against a village did not trigger the Tort Immunity Act (Raintree, 209 Ill. 2d at 258).
¶ 27       Plaintiffs’ actions, however, are significantly different from the action in Raintree, both
       in legal theory and in the remedy sought. In Raintree, a village ordinance required the
       plaintiffs to pay “impact fees” in return for each building permit the village issued to them.
       Id. at 252. The plaintiffs sought a declaratory judgment that the village lacked statutory and
       constitutional authority to enact such an ordinance, and they also sought a refund of the
       impact fees they had paid to the village. Id. at 253. The village moved for the dismissal of
       the amended complaint, pursuant to section 2-619(a)(5) of the Code of Civil Procedure (735
       ILCS 5/2-619(a)(5) (West 2000)), because the plaintiffs had not brought their action within
       the one-year period of limitation in section 8-101 of the Tort Immunity Act (745 ILCS 10/8-
       101 (West 2000)). Raintree, 209 Ill. 2d at 253. The trial court granted the motion, but the
       appellate court reversed the trial court’s judgment. Id. Although the supreme court did “not
       adopt or approve of the appellate court’s reasoning that the Tort Immunity Act categorically
       exclude[d] actions that [did] not sound in tort” (id. at 261), the supreme court affirmed the
       appellate court’s judgment, for a different reason: the supreme court held that the
       “[p]laintiffs’ claim [was] an action which [sought] ‘relief other than damages,’ as set forth
       in the first sentence of section 2-101, and [was], therefore, excluded from the [Tort
       Immunity] Act.” Id. at 256 (quoting 745 ILCS 10/2-101 (West 2002)). The first sentence of
       section 2-101 provided: “Nothing in this Act affects the right to obtain relief other than
       damages against a local public entity or public employee.” 745 ILCS 10/2-101 (West 2002).
       Because the plaintiffs in Raintree had brought a declaratory judgment action seeking
       restitution of the impact fees they had paid the village, not damages, section 2-101 made the
       Tort Immunity Act inapplicable to their claim. Raintree, 209 Ill. 2d at 256.
¶ 28       In the present case, by contrast, plaintiffs do not bring an action for declaratory judgment;
       they bring a tort action–and as its name announces, the Tort Immunity Act applies to tort
       actions. Also, as plaintiffs repeatedly say in their amended complaint, they seek an award of
       damages. They do not seek restitution. As the supreme court explained in Raintree,
       restitution is measured by the defendant’s unjust gain, whereas damages are measured by the
       plaintiff’s loss. Raintree, 209 Ill. 2d at 257. In paragraphs 9 and 11 of both counts of the
       amended complaint, plaintiffs purport to measure their monetary remedy by the property
       damage they allegedly have suffered. Hence, they seek damages, not restitution.



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¶ 29         D. The Presupposition of the Tort Immunity Act That a Public Employee
                           Possibly Has Committed a Civil Wrong, a Tort
¶ 30       In Van Meter v. Darien Park District, 207 Ill. 2d 359, 375 (2003), the supreme court
       reiterated its holding from previous cases, that, in order for a public employee to have
       immunity under section 2-201 of the Tort Immunity Act (745 ILCS 10/2-201 (West 1994)),
       the alleged acts or omissions by the public employee had to be “both a determination of
       policy and an exercise of discretion.” (Internal quotation marks omitted.) Plaintiffs argue: “A
       municipality is not authorized by [Van Meter] to create a policy which violates the law.
       Secondly, discretion pertains to how an action is performed, when there is more than one way
       to do it. However, the available alternatives must be lawful. Electing between a lawful way
       and a lawless way does not immunize a local unit of government.”
¶ 31       Plaintiffs seem to be arguing that the Tort Immunity Act immunizes public employees
       only insomuch as they make lawful choices. The trouble with that argument is that it makes
       the Tort Immunity Act pointless. A tort is, by definition, contrary to law–it is a civil wrong,
       a breach of a legal duty, for which the law affords a remedy (Black’s Law Dictionary 1496
       (7th ed. 1999))–and by immunizing a public employee from tort liability, the Tort Immunity
       Act necessarily immunizes the public employee from liability for choosing the “unlawful
       way,” provided that the public employee’s conduct is not willful and wanton (745 ILCS 10/3-
       108 (West 2010)). In other words, the Tort Immunity Act presupposes that a public employee
       possibly has committed a civil wrong, a tort. That is why it is called the “Tort Immunity
       Act.”
¶ 32       Section 2-201 (745 ILCS 10/2-201 (West 2010)), for example, specifically immunizes
       an abuse of discretion. The statute says: “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.” (Emphasis added.) Id.
       A decision is an abuse of discretion only if no reasonable person would agree with it. Shaw
       v. St. John’s Hospital, 2012 IL App (5th) 110088, ¶ 18. It follows that, if a public employee
       has abused his or her discretion, the public employee necessarily has breached the
       reasonable-person standard of tort law (see Advincula v. United Blood Services, 176 Ill. 2d
       1, 22 (1996)).

¶ 33         E. The Theory That Defendant Is Guilty of Willful and Wanton Conduct
                                      and Therefore Not Immune
¶ 34       Plaintiffs argue that, under section 3-108 of the Tort Immunity Act (745 ILCS 10/3-108
       (West 2010)), their “allegations of willful and wanton conduct would have *** created an
       exception to immunity.” “The alleged willful or wanton conduct,” however, “must be
       manifested in the facts alleged; conclusory allegations or mere characterizations of alleged
       acts as willful are insufficient.” Snyder v. Olmstead, 261 Ill. App. 3d 986, 991 (1994). See
       also Thurman v. Champaign Park District, 2011 IL App (4th) 101024, ¶ 10 (“When the
       plaintiff is alleging that the defendant engaged in willful and wanton conduct, such conduct
       must be shown through well-pled facts, and not merely by labeling the conduct willful and

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       wanton.” (Internal quotation marks omitted.)). Thus, we do not accept as true the allegation,
       in paragraph 7 of counts I and II, that, “[w]hen making the changes [in the drainage patterns],
       the Defendant was willful and wanton because he knew changes would violate the common
       law and statutory obligation to maintain natural drainage patterns.” The allegation of
       willfulness and wantonness, together with the allegation of what defendant “knew,” is
       conclusory, and we disregard conclusory assertions in the amended complaint. See Simpkins
       v. CSX Transportation, Inc., 2012 IL 110662, ¶ 26; Hanks, 2011 IL App (1st) 101088, ¶ 17;
       Snyder, 261 Ill. App. 3d at 991. Just because the Association predicted to defendant that
       installing the culverts under 3200 East Road would damage the Association’s land, it does
       not reasonably follow that defendant knew such an outcome would result; nor does it
       reasonably follow that he was willful and wanton by disbelieving the Association’s
       prediction.
¶ 35       More to the point, defendant could have responsibly decided that eliminating a threat to
       public safety was worth the additional burden that might be placed on the Association’s land.
       Plaintiffs assert in their amended complaint that defendant had a “common law and statutory
       obligation to maintain natural drainage patterns.” On the contrary, that is not the law. Instead,
       case law has adopted a standard of “reasonableness of use” (Templeton v. Huss, 57 Ill. 2d
       134, 141 (1974)): essentially, a nuisance standard, under which the benefits to the higher
       property, from the altered drainage pattern, are weighed against the harm to the lower
       property (Swigert v. Gillespie, 2012 IL App (4th) 120043, ¶ 32; Dovin v. Winfield Township,
       164 Ill. App. 3d 326, 335-36 (1987), overruled on other grounds by Gerill Corp. v. Jack L.
       Hargrove Builders, Inc., 128 Ill. 2d 179 (1989)).
¶ 36       It was not willful and wanton conduct on defendant’s part to decide that the safety of
       drivers outweighed the risk of disrupting the drainage patterns on the Association’s land.
       According to defendant’s unrebutted affidavit, water flowing over 3200 East Road had been
       washing away the shoulders of the road, endangering drivers, and to keep the water from
       washing away the shoulders, defendant installed additional and larger culverts under the
       road, so that the water would flow under the road instead of over it. “When supporting
       affidavits have not been challenged or contradicted by counteraffidavits or other appropriate
       means, the facts stated therein are deemed admitted.” (Internal quotation marks omitted.)
       Thurman, 2011 IL App (4th) 101024, ¶ 21. To be guilty of willful and wanton conduct,
       defendant had to pursue “a course of action which show[ed] *** an utter indifference to or
       conscious disregard for the safety of others or their property.” 745 ILCS 10/1-210 (West
       2010). Given the pleadings and defendant’s uncontradicted affidavit, one could not fairly and
       accurately say that defendant showed an utter indifference to, or conscious disregard of, the
       safety of the Association’s land. Instead of irresponsibly ignoring the threat to the
       Association’s land, defendant took it into account and decided that the protection of life and
       limb was a weightier consideration. This choice was not willful and wanton.
¶ 37       In sum, in our de novo review, we find no genuine issue of material fact that would have
       precluded the dismissal of the amended complaint, and we conclude that the dismissal was
       legally justified because, under section 2-201 of the Tort Immunity Act (745 ILCS 10/2-201
       (West 2010)), defendant has immunity to plaintiffs’ tort actions.


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¶ 38                               III. CONCLUSION
¶ 39   For the foregoing reasons, we affirm the trial court’s judgment.

¶ 40   Affirmed.




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