A plaintiff sued his Village after a limb of a Village owned tree broke and fell onto him and his dog. The plaintiff suffered injuries from the tree and his dog died. The Illinois Appellate Court in that matter concluded the Village employee authorized to determine policy or exercise discretion to address the defective condition must be aware of the defect that causes injury. Under the Tort Immunity Act, immunity from liability applies when an employee makes a discretionary decision regarding the act or omission that caused a plaintiff’s injury. Immunity applies to shield a public entity from liability when an employee with authority consciously disregards a repair for policy related reasons. Here, the Court found the Village failed to prove that its employee made a discretionary policy determination when deciding not to cut down the tree that caused the injury noting the Village must show awareness of the defect and the determination not to address it for policy related reasons.  Further,  the Village did not show it had exercised reasonable care by having in place an inspection plan or program that did not discover  the defect. 

The full case decision is available at:

Williams v. Village of Berkeley, 2024 IL App (1st) 231481, 2024 WL 3378030 (Published June 27, 2024)

A more detailed summary of the case is set forth hereafter.

Case Summary

Williams v. Village of Berkeley, 2024 IL App (1st) 231481, 2024 WL 3378030

(Published June 27, 2024)

Facts

The Plaintiff in this case asserted two premises-liability claims against the Village for the failure to maintain a parkway tree which posed a danger to the  public. A large branch of a Village owned tree broke off and fell on the Plaintiff, injuring him and killing one of his dogs. Plaintiff sued the Village alleging that the Village negligently allowed the tree to become and remain in a dangerous condition and that the Village was willful and wanton in allowing the dangerous condition of the tree to exist.

In this appeal, the Court focused on Plaintiff’s argument that the Village failed to demonstrate it was immune from liability under Sections 2-109 and 2-201 of the Act. 745 ILCS 10/2-109; 745 ILCS 10/2-201. The Court noted that to establish immunity under these sections, “a municipal defendant must establish that (1) the employee held either a position involving the determination of policy or a position involving the exercise of discretion and (2) the employee engaged in both the determination of policy and the exercise of discretion when performing the act or omission from which the plaintiff’s injury resulted.” Andrews v. Metropolitan Water Reclamation District of Greater Chicago, 2019 IL 124283, ¶ 26.

The Plaintiff alleges that the Village failed to establish both required elements of immunity because it did not show that a Village employee with policy-making or discretionary authority made a determination of policy and exercise of discretion in deciding not to cut down the tree at issue. The Court’s analysis focuses on the requirement that the employee who has the authority to make a determination of policy or exercise of discretion must also be the employee who makes a determination of policy and exercise of discretion regarding the defect at issue. Immunity cannot be established through generalized knowledge of the public entity, rather the evidence must point to a specific employee with authority that took specific steps regarding the defect causing injury.

Village Position That Decides When a Parkway Tree is Removed is a Determination of Policy and an Exercise of Discretion

The Court first determined which of the Village’s employees held a position involving the determination of policy or exercise of discretion regarding parkway tree removal. Wagner, the Village’s superintendent of public works, is the only employee who can decide to remove a parkway tree. Wagner testified that he is the sole employee with the authority to decide to remove a tree, unless the removal would require hiring an outside contractor for more than $20,000, where Village board approval is required. Therefore, the Court focused on Wagner’s actions with respect to the limb that broke and injured Plaintiff.

Awareness of Defect is Required to Make a Determination of Policy or to Exercise Discretion

The Court held that the Village failed to prove that Wagner made a discretionary policy determination when deciding not to cut down the tree that fell on Plaintiff. For immunity under 2-109 and 2-201, the Court noted that the Village needs to show awareness of the defect that caused injury and conscious disregard not to address it for policy related reasons. Wagner did not make a conscious decision not to repair the tree because Wager was not even aware of the state of rot that caused the limb to fall on Plaintiff. Specifically, Wagner testified he did not see external indication of internal rot or drying, and he believed the tree to be healthy. The Court held that no conscious decision to address the defect in the tree could be made when Wagner was unaware of the condition, even after inspecting the tree.

The Court rejected the Village’s argument that immunity should protect the Village because they should not be punished for Wagner’s unsuccessful assessment of the tree. The Court notes that though it may not be reasonable to expect municipalities to have all trees inspected by a certified arborist and that having Wagner inspect the tree was an exercise of reasonable care by the municipality, this argument goes to liability rather than immunity.

The Village argues that the Plaintiff’s testimony can establish immunity because he testified that multiple unnamed Village employees informed him that the Village was going to repair the tree soon. The Village alleges this testimony shows that the Village was aware of the defect, an employee with decision making authority decided to cut down the tree, and that it had not been cut down yet due to policy reasons. Yet, the Court rejects this argument because that conclusion would require the Court to draw inferences in favor of the Village.  The Court finds the testimony to be too vague and generalized regarding who made the decision, whether that person held a position involving policy determinations or exercises of discretion, and what policy reason caused the removal to be delayed. The testimony fails to point to specific employees or actions, and the Court finds that specificity to be important when establishing immunity under the Section 2-201 of the Tort Immunity Act,

Therefore, the Court denied summary judgment to the Village, stating the evidence fails to establish that the Village was immune from liability for the injury caused by the Village owned tree.

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