Doyle v. Village of Tinley Park , 426 Ill. Dec. 147 ( 2018 )

2018 IL App (1st) 170357
FIRST DISTRICT,
SECOND DIVISION
September 28, 2018
No. 1-17-0357
PATRICIA DOYLE and BRIAN DOYLE, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellants, ) Cook County, Illinois.
)
v. ) No. 11 L 13684
)
THE VILLAGE OF TINLEY PARK and MALONE ) Honorable
& MOLONEY, INC., ) Eileen O’Neill Burke and
) James E. Snyder,
Defendants-Appellees. ) Judges Presiding.
_____________________________________________________________________________
PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion.
Justices Pucinski and Hyman concurred in the judgment and opinion.
OPINION
¶1 Plaintiffs Patricia and Brian Doyle purchased a home in a Tinley Park subdivision in
2004. Several years later, the Doyles began to experience drainage problems on their property
which allegedly caused structural damage to the home. The Doyles brought a negligence suit
against the developer of the subdivision, Malone & Moloney, Inc. (Malone), 1 and the Village of
Tinley Park. The Doyles alleged that Malone failed to install a properly working storm drain
system, in breach of an annexation agreement entered into by Malone and the village in 1990.
The Doyles further alleged that the damage was exacerbated by the village’s delay in addressing
the drainage problem.
¶2 The trial court dismissed the claims against Malone, finding that the Doyles lacked
standing to sue under the annexation agreement either as successor owners of the property or as
1
Although the complaint in this case listed the company as “Malone & Maloney, Inc.,” the
company’s entry of appearance in this case corrects that spelling to “Malone & Moloney, Inc.”
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third-party beneficiaries. The trial court also granted summary judgment to the village, finding
that it was immune from suit under section 2-201 of the Local Governmental and Governmental
Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-201 (West 2012)), which
immunizes public employees “serving in a position involving the determination of policy or the
exercise of discretion” for their actions “in determining policy when acting in the exercise of
such discretion.” The Doyles now appeal. We agree with the trial court and affirm.
¶3 BACKGROUND
¶4 Malone is the developer of the Brookside Glen subdivision in Tinley Park. On January
11, 1990, Malone entered into an annexation agreement with the village regarding development
of the subdivision. The agreement defines the property subject to the agreement as follows:
“The Subject Property is generally bounded on the north by 191st Street, on the
east by Harlem Avenue, on the west generally by 88th Avenue but extending as far west
as 92nd Avenue, and on the south by several different housing developments. The
Subject Property contains approximately 828 acres and is contiguous with the Village of
Tinley Park.”
In relevant part, Malone agreed to design and construct storm sewers so that the subdivision’s
storm water runoff would be retained within a central detention system.
¶5 In 2004, the Doyles contracted with Malone to build a residence at 7606 Bayfield Drive
in the Brookside Glen subdivision. The contract contained a limited warranty providing that
Malone would fix any defects due to faulty construction brought to its attention within a year
from the date of closing. The sale closed on May 30, 2004, and the Doyles have lived at the
house since its completion.
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¶6 Sometime in 2007 or 2008, the Doyles began to notice a problem with their sump pump:
during times of rain or heavy snow, they could hear it ejecting water every few seconds, at a
higher rate than their neighbors’ pumps. Although the Doyles never had water in their basement,
they were concerned as to why their pump was overactive. The pump stopped working in July
2008, and the Doyles replaced it, but the issue persisted.
¶7 Patricia Doyle first contacted the village about the problem in fall 2009, via a phone call
to the Department of Public Works. She was told to have a plumber check the sump pump and
sprinkler system for leaks. After two plumbers found no leaks, the Doyles filed a drainage
complaint with the village on March 23, 2010. At this time, the Doyles had not yet observed any
structural damage to their home, but there was serious erosion around the storm drain on the west
side of the house: the surrounding dirt had caved in, and the ground in the area had dropped by
several feet.
¶8 On April 9, 2010, a public works crew was dispatched to the Doyles’ house. The crew
placed stone, soil, and grass seed around the storm drain in the area of the cave-in but did not
take further measures to remedy the cause of the sinkhole. The crew was sent at the direction of
Mary Dobyns, a foreman for the village’s Streets Department. Dobyns later explained that
although she assigns crews to jobs, what they do “is their call once they get there.” If a crew
believes that a problem is beyond its expertise, it is supposed to call Dobyns. The April 9 crew
did not call her.
¶9 Over the next several months, Patricia called the Department of Public Works several
more times to inform them that their sump pump was “not shutting off during rain.” By
September 30, 2010, Patricia observed that the rim of the storm drain was collapsing, and all of
the soil and rock added in April had fallen into the bottom of the drain. She called the
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Department of Public Works again, stating that the sinkhole on her property was dangerous and
that additional work needed to be done. She was told that Dobyns was on medical leave, but a
work order would be submitted for the property. On November 15, 2010, a second work crew
came to the house. Patricia observed them placing more stone around the storm drain as they did
in April.
¶ 10 Around December 2010, the Doyles first noticed structural damage to their home: the
floor was slanted on the ground level and in the basement, and the support beams in the
basement were, in Patricia’s words, “heaving up.”
¶ 11 On February 18, 2011, Patricia sent an e-mail regarding the damage to Kelly Borak, the
superintendent of the Streets Department. In response, the village sent a third work crew on
March 2, 2011. The crew performed a dye test by pouring dye into the storm drain. Within 20 to
30 minutes, the dye appeared in the Doyles’ sump pump pit, evidencing that the storm pipe was
leaking water. The next day, March 3, the work crew returned to the house and performed a
camera test by sending a robot with a camera attachment into the storm drain. The camera
footage confirmed that the pipe was compromised in several locations.
¶ 12 Later that day, Patricia e-mailed Borak to discuss these findings. Borak apologized to
Patricia for how long it took to identify the cause of the drainage problem, saying, “[T]he list of
drainage complaints is more than we can accommodate and we do not have the manpower to
complete the drainage complaints in a timely manner.” She assured Patricia that the village was
working with the board of trustees to remedy the problem.
¶ 13 After discussing the matter with Dobyns, Borak determined that the village could not fix
the damaged pipe on its own. Dobyns was in charge of soliciting bids from contractors. On
March 31, 2011, a contractor hired by the village installed a sleeve into the storm pipe on the
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west side of the Doyles’ property to repair the leak. After installing the sleeve, the contractor
dumped excess water into the storm drain down the street and then left. Minutes later, Patricia
heard her sump pump starting to operate. She called the Department of Public Works and told
them that the problem was not fixed.
¶ 14 Further tests by the village on April 11 and 12 showed that the storm pipe under the
street—a different pipe than was repaired on March 31—was also leaking. In an e-mail on April
25, Borak advised Patricia: “I have been collecting prices to repair the storm pipe in the street.
After we have 3 comparable quotes then it must be presented to the Village Manager for
approval. This will take some time.”
¶ 15 On May 2, 2011, Patricia sent an e-mail to Mayor Zabrocki expressing frustration that the
problem had not yet been fixed. In response, several village officials, including Trustee Thomas
Staunton, came to the Doyles’ house on July 1 to view the damage and discuss solutions.
According to Patricia, Staunton said that the village would not repair the storm pipe under the
street because it was “insignificant and not worth [the village’s] while.” He also told the Doyles,
“Go ahead and sue us. Tinley Park has no money and we are protected by tort immunity.”
¶ 16 Notwithstanding Staunton’s words, the village hired a second contractor to repair the
storm pipe under the street on July 27, 2011. This repair was more extensive than the March 31
repair in that it involved removal and replacement of the pipe. After this repair, the Doyles
experienced no further problems with their sump pump.
¶ 17 The Doyles filed suit against Malone and the village on December 27, 2011, seeking
compensation for the damage to their property. In count V of their third amended complaint, the
Doyles alleged that Malone breached its 2004 contract with them by failing to build their
residence “in a good workmanlike manner.” In counts III and IV, the Doyles alleged that Malone
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breached its duty to install a sewage system that was adequate to properly drain water from
properties in the subdivision, in violation of the 1990 annexation agreement between Malone and
the village. The Doyles argued that they had standing to enforce the annexation agreement based
upon the agreement’s successor liability clause, which provided:
“This Agreement shall be binding upon and inure to the benefit of the parties
hereto, successor owners of record of the Subject Property, assignees, lessees and upon
any successor municipal authorities of said Village and successor municipalities ***.”
The Doyles claimed that they could enforce the agreement as successor owners of a residence in
the Brookside Glen subdivision. Alternately, the Doyles argued that they were third-party
beneficiaries of the agreement. 2
¶ 18 As for the village, the Doyles alleged that the damage to their home was exacerbated by
the village’s failure to deal with the drainage problem in a timely or appropriate manner. The
Doyles filed their drainage complaint with the village on March 23, 2010. Although work crews
visited the house on April 9 and November 15, they merely filled in the sinkhole without
attempting to ascertain its cause. By April 12, 2011, the village was aware that the storm pipe
under the street was compromised, but it did not fix the pipe until July 27.
¶ 19 The Doyles alleged that, due to defendants’ negligence, large quantities of water
accumulated beneath the base slab of their house, cracking the slab, pushing up the columns, and
causing other structural damage. The water also created a dangerous sinkhole on the property.
The Doyles alleged that their property was not salable in its damaged condition.
¶ 20 Malone moved to dismiss counts III and IV pursuant to section 2-619 of the Code of
Civil Procedure (735 ILCS 5/2-619 (West 2012)), arguing that the Doyles lacked standing to sue
under the annexation agreement. The trial court granted Malone’s motion on September 9, 2015,
2
The Doyles also raised various other claims against Malone that are not relevant to this appeal.
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finding that, although the annexation agreement provided for successor liability, the Doyles were
successors to Malone and not the village, so they could not sue Malone for its alleged breach of
the agreement. The court also held there was no evidence that subsequent purchasers of homes,
such as the Doyles, were intended third-party beneficiaries of the annexation agreement.
¶ 21 Malone then moved for summary judgment on count V, arguing that (i) the defective
storm pipes that damaged the Doyles’ house were beyond the scope of the 2004 contract between
Malone and the Doyles; (ii) there was no evidence that Malone’s construction of the house was
faulty; and (iii) in any event, the Doyles did not notice any damage to their residence until well
after the expiration of the one-year warranty. The trial court granted Malone’s motion for
summary judgment, finding that the Doyles’ allegations of faulty construction were “conclusory
in nature.”
¶ 22 The village also moved for summary judgment, arguing that it was entitled to
discretionary tort immunity under section 2-201 of the Tort Immunity Act (745 ILCS 10/2-201
(West 2012)) because the means and methods by which its employees address drainage
complaints from residents involve the exercise of discretion. The trial court initially denied the
village’s motion, finding that whether the village’s acts were ministerial or discretionary was a
question of fact. The village moved for reconsideration, and on September 14, 2016, the trial
court granted the motion and entered summary judgment for the village “for reasons stated on
the record.”
¶ 23 The Doyles now appeal (i) the trial court’s dismissal of counts III and IV against Malone
and (ii) the court’s grant of summary judgment for the village.
¶ 24 ANALYSIS
¶ 25 Standing to Sue to Enforce the Annexation Agreement
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¶ 26 As discussed, the Doyles’ claims against Malone in this appeal are premised on Malone’s
alleged breach of the annexation agreement that Malone and the village executed in 1990. The
Doyles argue that they had standing to bring such an action, both as successor owners of the
property and as intended third-party beneficiaries of the contract. We consider these claims in
turn, accepting as true all well-pleaded facts in the complaint and construing the pleadings in the
light most favorable to the Doyles, as is appropriate in reviewing a section 2-619 dismissal.
Sandholm v. Kuecker, 2012 IL 111443, ¶ 55.
¶ 27 Initially, we observe that the Doyles do not appeal the trial court’s grant of summary
judgment on count V, regarding their 2004 contract with Malone. Nor would any such appeal be
meritorious. As the trial court found, there was no evidence that Malone’s construction of the
Doyles’ house was faulty. Rather, the evidence showed that the Doyles’ house was damaged by
faulty storm drains, which were outside the scope of the 2004 contract. Thus, the Doyles’ claims
depend on their ability to enforce Malone’s obligations under the annexation agreement.
¶ 28 By definition, an annexation agreement is a contract between a municipality and an
owner of land in unincorporated territory. 65 ILCS 5/11-15.1-1 (West 2012). The contract
annexes the land to the municipality, thereby subjecting it to the municipality’s ordinances,
control, and jurisdiction. Id. § 11-15.1-2. The Illinois Municipal Code provides that any
annexation agreement “shall be binding upon the successor owners of record of the land which is
the subject of the agreement and upon successor municipal authorities of the municipality and
successor municipalities. Any party to such agreement may by civil action *** enforce and
compel performance of the agreement.” Id. § 11-15.1-4. Additionally, the agreement itself
provides for successor liability in section 16, “Binding Effect and Term and Covenants Running
with the Land.” That section provides, in relevant part: “This Agreement shall be binding upon
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and inure to the benefit of the parties hereto, successor owners of record of the Subject Property,
assignees, lessees and upon any successor municipal authorities of said Village and successor
municipalities.”
¶ 29 The Doyles argue that they, as purchasers of an individual lot within the Brookside Glen
subdivision, are “successor owners of record” of the subdivision, under both the 1990 annexation
agreement and section 11-15.1-4 of the Illinois Municipal Code (65 ILCS 5/11-15.1-4 (West
2012)). This assertion underlies both their claim to successor liability and their third-party
beneficiary claim.
¶ 30 We disagree with this fundamental assertion. In interpreting the annexation agreement,
our primary goal is to effectuate the parties’ intent by interpreting the contract as a whole. Joyce
v. DLA Piper Rudnick Gray Cary LLP, 382 Ill. App. 3d 632, 636-37 (2008). Moreover, we will
construe the contract reasonably to avoid absurd results. Suburban Auto Rebuilders, Inc. v.
Associated Tile Dealers Warehouse, Inc., 388 Ill. App. 3d 81, 92 (2009). Initially, we do not find
that the wording of the annexation agreement supports the Doyles’ construction. The agreement
defines the “Subject Property” as an 828-acre parcel of land contiguous with the village—i.e.,
the entire subdivision. If the drafters of the agreement intended to confer successor status upon
each and every purchaser of a lot within the subdivision (as opposed to, say, a developer who
purchased the entire subdivision property from Malone), the agreement would have said
“successor owners of record of the Subject Property or any portion thereof.”
¶ 31 Likewise, the statute refers to “successor owners of record of the land which is the
subject of the agreement” (65 ILCS 5/11-15.1-4 (West 2012)), but makes no reference to those
who purchase only a small portion of that land. The Doyles do not cite any cases where
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homeowners who purchase a single lot from a larger annexed territory are considered “successor
owners of record” under the statute, nor does our research disclose any.
¶ 32 Moreover, if we adopted the Doyles’ interpretation of the annexation agreement and the
statute, then each and every homeowner in the subdivision would succeed to Malone’s interest in
the property. Humphrey Property Group, L.L.C. v. Village of Frankfort, 392 Ill. App. 3d 611,
614 (2009) (with respect to an annexation agreement, a successive purchaser of land stands in the
place of the original landowner who made the contract with the municipality). As successors, the
homeowners would stand in Malone’s shoes and be bound to Malone’s obligations—and, as a
result, the village could sue the Doyles, or any other homeowners in the subdivision, for failing
to properly design and construct storm sewers in accordance with the annexation agreement. See
Village of Orland Park v. First Federal Savings & Loan Ass’n of Chicago, 135 Ill. App. 3d 520,
526 (1985) (because annexation agreement was binding upon successor owner of property,
village could sue successor owner to enforce its provisions). We decline to find that either the
parties to the contract or the legislature intended such an absurd result. Accordingly, we find that
the Doyles lack standing to bring an action against Malone as successor owners of the property. 3
¶ 33 Because the Doyles cannot be considered “successor owners of record” of the subject
property, their third-party beneficiary argument fails as well. Under Illinois law, not every third
party who benefits from a contract can sue for its breach. Carlson v. Rehabilitation Institute of
Chicago, 2016 IL App (1st) 143853, ¶ 14. Third parties have rights under a contract only if they
are intended beneficiaries; that is, the contracting parties must have intended to directly benefit
the third parties by the performance of the contract. Id.; F.H. Paschen/S.N. Nielsen, Inc. v.
3
We additionally observe that even if the Doyles could be considered successor owners of the
property, they would succeed to Malone’s interest in the annexation agreement, not to the village’s. See
Humphrey Property Group, 392 Ill. App. 3d at 614. As such, the Doyles could not sue Malone (in whose
shoes they would be standing) for breach of the annexation agreement.
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Burnham Station, L.L.C, 372 Ill. App. 3d 89, 96 (2007). By contrast, an incidental beneficiary
has no rights under a contract and lacks standing to sue to enforce its terms. Carlson, 2016 IL
App (1st) 143853, ¶¶ 14-15. In determining whether a third-party beneficiary is intended or
incidental, courts consider the language of the contract and the circumstances surrounding its
execution. Id. ¶ 14. Because parties typically enter into contracts to benefit themselves rather
than third parties, there is a presumption against intended beneficiary status that “can only be
overcome by an implication so strong as to be practically an express declaration.” Estate of
Willis v. Kiferbaum Construction Corp., 357 Ill. App. 3d 1002, 1008 (2005); see also Carlson,
2016 IL App (1st) 143853, ¶ 16.
¶ 34 No such implication is present in the annexation agreement. As discussed, individual
homeowners such as the Doyles are not “successor owners of record of the Subject Property”
within the meaning of the annexation agreement. Thus, there is no expressed intent to benefit
such individual homeowners. Although there is no question that the parties were aware that the
storm drainage system would benefit homeowners, this is insufficient under Illinois law to afford
homeowners intended third-party beneficiary status. See Altevogt v. Brinkoetter, 85 Ill. 2d 44, 56
(1981) (builder’s knowledge that a third party would occupy the house did not establish that
occupants were intended beneficiaries); 155 Harbor Drive Condominium Ass’n v. Harbor Point
Inc., 209 Ill. App. 3d 631, 647 (1991) (individual unit owners were not intended beneficiaries of
construction contracts even though “[t]here is no question that the parties *** were aware that
the building was being built for subsequent purchasers”).
¶ 35 Accordingly, we affirm the trial court’s dismissal of counts III and IV of the Doyles’
complaint.
¶ 36 Tort Immunity
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¶ 37 The Doyles next argue that the trial court erred in granting summary judgment to the
village on the basis of discretionary tort immunity. We review the grant of summary judgment
de novo (Williams v. Manchester, 228 Ill. 2d 404, 417 (2008)), keeping in mind that summary
judgment is appropriate only where “there is no genuine issue as to any material fact and *** the
moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2016).
In order to prevail, the nonmoving parties must present some evidence that would arguably
entitle them to recover at trial. Keating v. 68th & Paxton, L.L.C., 401 Ill. App. 3d 456, 472
(2010).
¶ 38 Section 2-201 of the Tort Immunity Act provides: “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.” 745 ILCS 10/2-201
(West 2012). For an employee to enjoy immunity under this section, the employee’s allegedly
tortious action must result from both “the determination of policy” and “the exercise of
discretion.” Id.; see Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 341
(1998); Albers v. Breen, 346 Ill. App. 3d 799, 808 (2004). The Doyles argue that the village’s
failure to remedy the sinkhole in a timely manner did not meet either of these criteria.
¶ 39 For purposes of section 2-201, policy determinations are decisions that require a
governmental employee “ ‘to balance competing interests and to make a judgment call as to what
solution will best serve each of those interests.’ ” Harinek, 181 Ill. 2d at 342 (quoting West v.
Kirkham, 147 Ill. 2d 1, 11 (1992)). Discretionary acts “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, 395
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(2000). By contrast, ministerial acts (which do not enjoy immunity) are performed in a
prescribed manner without reference to the official’s discretion. Id. at 396; see also In re
Chicago Flood Litigation, 176 Ill. 2d 179, 194 (1997) (ministerial acts are “absolute, certain and
imperative, involving merely the execution of a set task” (internal quotation marks omitted)).
¶ 40 The Doyles concede that the village’s initial decision to repair the sinkhole, made in
response to the Doyles’ drainage complaint on March 23, 2010, was both an exercise of
discretion and a determination of policy. But they argue that all of the village’s actions thereafter
were “merely the execution of a set task” (internal quotation marks omitted) (Chicago Flood
Litigation, 176 Ill. 2d at 194) and not entitled to immunity. We disagree.
¶ 41 The record shows that the village sent work crews to the Doyles’ house on April 9, 2010,
and on November 15, 2010. On both of those occasions, the crew placed stone and soil around
the storm drain but, according to Patricia, did not test the integrity of the storm pipes by
conducting a dye test or a camera test. These remedial measures were discretionary in nature:
Dobyns explained that the workers’ actions to address the problem were “their call once they get
there.” Here, the workers decided that it was sufficient to fill in the sinkhole. The Doyles argue
that they should have performed tests to determine the cause of the problem. But by criticizing
the workers’ judgment—effectively arguing that they made the “wrong call”—the Doyles
inadvertently highlight the discretionary nature of the remedial actions.
¶ 42 In this regard, this case is analogous to Wrobel, 318 Ill. App. 3d 390, in which the court
held that city workers’ conduct in repairing potholes involved the exercise of discretion. A driver
struck a pothole, lost control of his vehicle, and veered into traffic, injuring plaintiffs. Plaintiffs
sued the city for negligent maintenance of the road. It was undisputed that four days before the
accident, city workers had repaired potholes on that block. Wrobel held that the city was immune
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from suit. The court explained that workers repairing potholes “enjoy discretion in determining
how much asphalt and moisture should be actually extracted [from each pothole] and whether
that amount is indeed adequate to ensure a durable patch.” Id. at 395. Likewise, the record in this
case shows that the work crews sent to the Doyles’ house had discretion in determining how best
to deal with the drainage problem.
¶ 43 In response to the Doyles’ continued concerns, the village sent a third work crew to their
house on March 2 and 3, 2011, and testing determined that the storm pipe on their property was
leaking in several locations. The record shows that fixing the pipe was not “merely the execution
of a set task” (internal quotation marks omitted) (Chicago Flood Litigation, 176 Ill. 2d at 194),
but required “the exercise of personal deliberation and judgment” (Wrobel, 318 Ill. App. 3d at
395) by village officials. Borak discussed the problem with Dobyns and determined that the
village did not have the resources to fix the pipe on its own. Dobyns then began the process of
soliciting bids from outside contractors. Eventually a contractor was hired to fix the pipe on the
Doyles’ property—but it was discovered that the pipe under the street was also leaking,
necessitating a new round of decisionmaking and bidding from contractors. Borak stated as much
in her April 25, 2011, e-mail to Patricia: “I have been collecting prices to repair the storm pipe in
the street. After we have 3 comparable quotes then it must be presented to the Village Manager
for approval. This will take some time.”
¶ 44 We find that the village employed discretion at every step of the repair process, from the
first work crew that visited the Doyles’ house and had to decide what to do about the sinkhole, to
the village manager who decided to approve the street pipe repair.
¶ 45 Moreover, the record demonstrates that village officials were engaged in ongoing policy
determinations regarding the allocation of village funds and resources. In an e-mail to Patricia,
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Borak stated, “[T]he list of drainage complaints is more than we can accommodate and we do
not have the manpower to complete the drainage complaints in a timely manner.” In a similar
vein, Staunton, one of the village’s trustees, told the Doyles that the village “has no money” and
opined that fixing the leaking street pipe was “not worth [the village’s] while.” It is well
established that deciding how best to spend limited resources is a policy determination.
¶ 46 For instance, in Nichols v. City of Chicago Heights, 2015 IL App (1st) 122994, plaintiffs’
homes were damaged in flooding during a two-day rainstorm. They sued the city, alleging
operational negligence of the storm sewer system. Nichols held that immunity applied to the
city’s decisions regarding the maintenance and improvement of its sewer system. Id. ¶ 33.
Evidence showed that the city had an ongoing sewer rehabilitation program, including dye
testing of “ ‘high priority’ ” locations and discussion of cost-effective solutions to stay within
budgetary constraints. Id. ¶¶ 34-38. The court concluded that “the mayor and the City were
balancing competing interests and making continued and ongoing judgment calls as to what set
of action would best serve those competing interests”—i.e., they were both exercising discretion
and determining policy. Id. ¶ 39. The court further stated:
“We understand plaintiffs’ frustration that their homes were flooded with waste
and we, like the trial court below, recognize that this flooding may have been avoided
had the City’s sewers been better maintained. However, a municipality must function
while balancing many interests, including a limited budget. Here, the City had a plan and
was moving forward on that plan, balancing, as a municipality must, many interests.
Even if its conduct were negligent, we would still find that it was immune from suit
under section 2-201.” Id. ¶ 41.
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Likewise, we are not unsympathetic to the Doyles’ frustration regarding the length of time it took
to fix the drainage problem and the resultant damage to their home. But village officials
exercised their judgment in utilizing the village’s limited manpower and budget, and, as a result,
their actions are immune from liability.
¶ 47 The Doyles nevertheless argue that the present case is analogous to Gutstein v. City of
Evanston, 402 Ill. App. 3d 610 (2010), in which the city’s failure to perform scheduled repairs
was held to be ministerial rather than discretionary. Gutstein tripped and fell in an unpaved alley
abutting her property. Id. at 612. She sued the city for negligent maintenance of the alley. The
city’s policy was to annually regrade each of its unpaved alleys, but there was no evidence the
city did any work in the alley before Gutstein’s fall. Id. at 612, 626. Under these facts, Gutstein
held that discretionary tort immunity did not apply. The court explained that the city’s decision
to implement a program of repairs (the annual regrading of alleys) involved the exercise of
discretion, but once the program was implemented, carrying out that program was a ministerial
act, in that it was “ ‘absolute, certain and imperative, involving merely the execution of a set
task.’ ” Id. at 625 (quoting Chicago Flood Litigation, 176 Ill. 2d at 194). The court also
distinguished Wrobel, since there was no evidence that the regrading process required any
“complex, location-specific determinations,” unlike the pothole repair process in Wrobel. Id. at
627.
¶ 48 Gutstein is readily distinguishable. Unlike the city in Gutstein, which failed to perform
any repairs on the alley in question, the village engaged in extensive repair efforts that involved
many complex determinations and did eventually solve the Doyles’ drainage problem. The
Doyles criticize the manner in which these repair efforts were conducted, but, as discussed,
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deciding how to perform the repairs involved both the exercise of discretion and the
determination of policy, and the village is therefore immune from suit under section 2-201.
¶ 49 CONCLUSION
¶ 50 Because the Doyles lacked standing to enforce the annexation agreement between
Malone and the village, we affirm the trial court’s dismissal of counts III and IV against Malone.
We also affirm the trial court’s grant of summary judgment for the village on grounds of
discretionary tort immunity.
¶ 51 Affirmed.
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