Premises Liability and Tort Immunity


Premises Liability and Tort Immunity

When suing a local public entity including a municipality or its employees we need to refer to the Tort Immunity Act. 745 ILCS Section 10/3-102 provides that 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. This section further provides that a public entity is not liable unless it is proven that it has actual or constructive notice of the existence of a defective condition on its premises. This section of the tort immunity act only applies to defective conditions due to ministerial functions and does not apply to defects that are a result of exercise of discretion and/or policy determinations.

The act provides immunity from being sued for a local public entity or its employee when the defective condition that results in the injury is due to a discretionary decision. However, the same immunity is not available when the defective condition is due to a ministerial decision. Whether the defect is due to a discretionary decision or ministerial function is evaluated on a case by case basis. Illinois Supreme Court has held that “a municipal corporation acts judicially or exercises discretion when it selects and adopts a plan in the making of public improvements, but as soon as it begins to carry out that plan it acts ministerial and is bound to see that the work is done in a reasonably safe and skillful manner”. In other words, discretionary acts involve the exercise of personal judgment in deciding whether to perform a particular act or in the manner in which the act needs to be performed. Whereas ministerial acts are those which a person performs in a prescribed manner, in obedience to the mandate of legal authority.

Aside from determining the discretionary and/or ministerial origin of the defect, we also have to look at the location of the defective condition. The act also provides immunity for a public entity and its employee when the liability is based on the “existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities”. This section applies if public property is intended or permitted to be used for recreational purposes, regardless of the primary purpose of the property. This section also may apply to facilities or structures that increase the usefulness of public property intended or permitted to be used for recreational purposes.

In order for us to evaluate a premises liability case against a local public entity or its employees, it is extremely important that after the injury you collect as much information as you can regarding the location of the accident and the nature of the defect. Helpful information would include taking pictures of the defect and determining the exact location of the defect.