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FOURTH DIVISION
August 7, 2003

MODIFIED UPON DENIAL OF REHEARING

JUSTICE KARNEZIS delivered the opinion of the court:

Marilyn Hanley appeals from an order of the trial court granting summaryjudgment to defendant, the City of Chicago, in her personal injury action and from thecourt's denial of her motion to reconsider the court's order. The court found defendantimmune from civil liability pursuant to the Local Governmental and GovernmentalEmployees Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 1998)) (the TortImmunity Act) for injuries plaintiff sustained when she tripped in a pothole and fell. Onappeal, plaintiff argues that the court erred in granting summary judgment to defendantbecause (1) the court erroneously barred plaintiff's expert from testifying at trial anddisregarded the expert's affidavit submitted with plaintiff's response to defendant'smotion for summary judgment and (2) defendant was not immune from liability. Wereverse and remand.

BACKGROUND

On January 8, 1996, plaintiff was injured when she tripped and fell in a potholewithin a crosswalk at the intersection of Michigan Avenue and Ontario Street in Chicago. Plaintiff filed a complaint against defendant alleging that defendant's negligence inmaintaining the crosswalk and its failure to repair the pothole and warn of the danger itpresented caused her injuries. Defendant answered, denying the claims and raising asan affirmative defense that it was immune from liability pursuant to section 3-102 of theTort Immunity Act because its property was in a reasonably safe condition for itsintended purpose when the accident occurred, defendant had no actual or constructivenotice that the condition of its property was not reasonably safe, and plaintiff failed toexercise ordinary care in crossing the street. Defendant also argued that plaintiff's ownnegligence proximately caused her injury and, in the event that defendant was foundnegligent, any judgment against defendant should be reduced comparatively.

On May 1, 2000, 45 days prior to trial, defendant brought a motion for summaryjudgment arguing that it was immune from liability (1) pursuant to section 2-201 of theTort Immunity Act because decisions whether to inspect or repair a street are purelydiscretionary; (2) pursuant to section 3-102(a) because no evidence was producedduring discovery that defendant had actual or constructive notice of the pothole; and (3)pursuant to section 3-104 because it has no liability arising from a failure to warn. Inresponse, plaintiff argued that the cited provisions of the immunity statute do not applybecause (1) defendant created the defect when it inadequately repaired the pothole; (2)there is no immunity for repairing a pothole, which is a ministerial rather than adiscretionary act; (3) defendant had notice of the pothole; and (4) section 3-104 onlyrefers to traffic control warning devices affecting motor vehicles, not, as here, affectingpedestrians. Plaintiff attached numerous exhibits to her response, including the affidavitand report of Douglas Bynum, Ph.D., P.E.

Dr. Bynum, an engineer, opined that the pothole had been patched at some pointbut that the repair had not been done "in the appropriate manner" or using appropriatematerials. He stated that the patched pothole should have been gouged out completelyand larger than the pothole itself before being filled with asphalt. He concluded that theoverall depth of the pothole was 2 5/16 inches below grade and that the depth wassufficient to cause most people to lose their balance, especially at night. He also statedthat plaintiff crossed the street in a prudent manner and that defendant had notice of the"dangerous and unsafe condition at the scene of the accident." Dr. Bynum was notdisclosed as an expert witness prior to trial pursuant to Supreme Court Rule 213 (177 Ill.2d R. 213) and the trial court barred him from testifying at trial.

Defendant filed a reply in support of its motion for summary judgment, moving tostrike Dr. Bynum's affidavit and report for introducing new facts, conclusions andopinions in violation of Supreme Court Rule 213. Defendant also argued that the reportand affidavit raised new allegations of improper repair that were "never beforeplead[ed]" and thus barred by the statute of limitations.

Subsequently, the court⁽¹⁾ granted defendant's motion for summary judgment,finding that defendant was immune from liability because repair of the pothole was adiscretionary act on defendant's part and there was no evidence that the pothole had been filled in a manner other than correctly prior to plaintiff's fall or that defendant hadnotice of the defective pothole. Because Dr. Bynum was barred from testifying at trial,the court did not consider Dr. Bynum's affidavit and report in making its determination,noting that only evidence admissible at trial may be considered in ruling on a motion forsummary judgment. The court stated that it would not address the issue of whetherdefendant properly repaired the pothole before plaintiff fell because this issue was notbefore the court. The court denied plaintiff's motion to reconsider and plaintiff timelyfiled her notice of appeal.

ANALYSIS

A drastic means of disposing of litigation, a motion for summary judgment isgranted only when the pleadings, depositions, and admissions on file, together with anyaffidavits, construed strictly against the movant and liberally in favor of the opponent ofthe motion, show that there is no genuine issue as to any material fact and that themoving party is entitled to a judgment as a matter of law. Purtill v. Hess, 111 Ill. 2d 229,240-41, 489 N.E.2d 867, 871 (1986). We review the trial court's entry of summaryjudgment de novo. Axen v. Ockerlund Construction Co., 281 Ill. App. 3d 224, 229, 666N.E.2d 693, 696 (1996).

Waiver of Affirmative Defense

The trial court granted summary judgment to defendant because it founddefendant immune from civil liability pursuant to section 2-201 of the Tort Immunity Act,which provides for immunity for discretionary acts. 745 ILCS 10/2-201 (West 1998). Defendant did not raise the section 2-201 discretionary immunity defense in its answerto plaintiff's complaint. Generally, in order to avoid surprise to the opposite party, anaffirmative defense must be set out completely in a party's answer to a complaint andfailure to do so results in waiver of the defense. 735 ILCS 5/2-613(d) (West 1998); Horwitz v. Bankers Life & Casualty Co., 319 Ill. App. 3d 390, 399, 745 N.E.2d 591, 598(2001); Rognant v. Palacios, 224 Ill. App. 3d 418, 422, 586 N.E.2d 686, 688 (1991). However, courts have held that an affirmative defense may be raised, as defendant didin this case, in a motion for summary judgment even though the defense was not raisedin an answer. Horwitz, 319 Ill. App. 3d at 399, 745 N.E.2d at 598; Holladay v. Boyd, 285Ill. App. 3d 1006, 1011, 675 N.E.2d 262, 266 (1996); Salazar v. State Farm MutualAutomobile Insurance Co., 191 Ill. App. 3d 871, 876, 548 N.E.2d 382, 385 (1989);Strzelczyk v. State Farm Mutual Automobile Insurance Co., 138 Ill. App. 3d 346, 349,485 N.E.2d 1230, 1232 (1985). We review the trial court's decision to allow defendantto raise its discretionary immunity defense for the first time in its motion for summaryjudgment for abuse of discretion. Horwitz, 319 Ill. App. 3d at 399, 745 N.E.2d at 599.

It appears from the record that plaintiff did not object to defendant's raising thisaffirmative defense until she filed her motion to reconsider the grant of summaryjudgment, and then only in the context of her use of Dr. Bynum's affidavit to counter thedefense. Accordingly, by her failure to object, plaintiff forfeited consideration of whetherdefendant waived its section 2-201 affirmative defense. Hill v. Chicago HousingAuthority, 233 Ill. App. 3d 923, 933, 599 N.E.2d 1118, 1124-25 (1992). Moreover, adetermination that an affirmative defense has been waived is especially inappropriatewhere, as here, the party asserting that the defense has been waived had ample time torespond to the defense and, as a result, was not unfairly prejudiced by the failure toraise it in the answer. Horwitz, 319 Ill. App. 3d at 399, 745 N.E.2d at 598. Althoughplaintiff may have been surprised by the discretionary immunity defense, she had 45days prior to trial in which to respond to the motion for summary judgment. In addition,the court granted plaintiff two extensions in which to file her response and ultimatelyallowed plaintiff to file her response instanter on July 13, 2000. We note that the courtalso rescheduled the trial date twice at plaintiff's request, from June 14, 2000, to July20, 2000, to September 13, 2000. Plaintiff had more than ample time in which torespond to the motion and did so. We find that she was, therefore, not prejudiced bydefendant's failure to raise its section 2-201 discretionary immunity defense in itsanswer, defendant did not waive that defense and the court did not abuse its discretionin considering it.

Fairness

In its motion for summary judgment, defendant argued that section 2-201 appliesto its actions in deciding to inspect or repair a street and that it is immune from liabilityfor any alleged negligence in making those discretionary determinations. In response,plaintiff argued that repair of the pothole was a ministerial act for which defendant doesnot have immunity because defendant created the defect by inadequately repairing thepothole, as shown by Dr. Bynum's affidavit. The court found defendant immune fromliability, disregarding Dr. Bynum's affidavit because Dr. Bynum was previously barredfrom testifying.

The basis for summary judgment is that the plaintiff is unable to procure anexpert, not that she is in technical violation of a discovery schedule. Higgens v. House,288 Ill. App. 3d 543, 550, 680 N.E.2d 1089, 1094 (1997) (Cook, J., dissenting). Although the imposition of sanctions for a party's failure to comply with discovery rulesand orders is within the discretion of the trial judge, such sanctions must be just andcommensurate with the seriousness of the violation. Ralston v. Casanova, 129 Ill. App.3d 1050, 1056, 473 N.E.2d 444, 449 (1984); Kubian v. Labinsky, 178 Ill. App. 3d 191,196-97, 533 N.E.2d 22, 25 (1988). Here, the court barred Dr. Bynum from testifying attrial because plaintiff did not disclose him as an expert prior to close of discovery. Thecourt's subsequent disregard of Dr. Bynum's affidavit on the basis of the earlier orderresulted in the court's finding that there was no evidence that the repair had not beencorrectly done, thereby defeating any chance plaintiff had to rebut defendant'saffirmative defense. This was clearly an unjust result.

The purpose of sanctions is to accomplish the goal of discovery (Harris v. Harris,196 Ill. App. 3d 815, 820, 555 N.E.2d 10, 14 (1990)) but discovery on the issue ofadequate repair was not called for here until after the close of discovery. Plaintiff didnot ignore discovery deadlines or refuse to comply with discovery requests. Rather, shedid not explore the issue or declare an expert during discovery because adequacy ofrepair was not yet an issue in the case; defendant did not raise the affirmative defenseto which this evidence was germane until after the close of discovery. Revision of adiscovery schedule order is at the discretion of the circuit court and generallyappropriate to accommodate changes in the circumstances of the case. Smock v. Hale197 Ill. App. 3d 732, 740, 555 N.E.2d 74, 79 (1990). Since the court allowed defendantto raise its affirmative defense after the close of discovery, it should have allowedplaintiff to rebut this affirmative defense with evidence presented after close ofdiscovery. Accordingly, on remand, discovery is to be reopened in order to allowplaintiff to disclose additional expert witnesses in this action. See Cometo v. FosterMcGaw Hospital, 167 Ill. App. 3d 1023, 1030, 522 N.E.2d 117, 121 (1988); Smock v.Hale 197 Ill. App. 3d 732, 555 N.E.2d 74 .

Immunity Pursuant to Section 2-201

Section 2-201 provides that "[e]xcept as otherwise provided by Statute, a publicemployee serving in a position involving the determination of policy or the exercise ofdiscretion is not liable for an injury resulting from his act or omission in determiningpolicy when acting in the exercise of such discretion even though abused." 745 ILCS10/2-201 (West 1998). Any immunity for policy determinations and discretionary acts oromissions by its employees extends to defendant. In re Chicago Flood Litigation, 176 Ill.2d 179, 193-94, 680 N.E.2d 265, 272 (1997). Section 2-201 immunizes liability for bothnegligence and willful and wanton misconduct. Spangenberg v. Verner, 321 Ill. App. 3d429, 433, 747 N.E.2d 359, 362 (2001), citing In re Chicago Flood Litigation, 176 Ill. 2d at196, 680 N.E.2d at 273.

Our supreme court has held that " '[a] municipal corporation acts judicially orexercises discretion when it selects and adopts a plan in the making of publicimprovements, but as soon as it begins to carry out that plan it acts ministerially and isbound to see that the work is done in a reasonably safe and skillful manner.' " Greenev. City of Chicago, 73 Ill. 2d 100, 108, 382 N.E.2d 1205, 1209 (1978), quoting Johnstonv. City of East Moline, 405 Ill. 460, 466, 91 N.E.2d 401, 404 (1950). A local public entityis not immune from liability for the performance of ministerial tasks. Morrissey v. City ofChicago, 334 Ill. App. 3d 251, 257, 777 N.E.2d 390, 394 (2002). However, as this courtnoted:

"Every failure to maintain property could be described as an exercise ofdiscretion under the municipal defendants expansive approach to governmentalimmunity. The legislature could not have intended such a result; otherwise, itwould not have codified the common law duty to maintain property under section3-102 of the Act. The Act must be strictly construed against the public entityinvolved." Anderson v. Alberto-Culver USA, Inc., 317 Ill. App. 3d 1104, 1117, 740N.E.2d 819, 829 (2000).

Pursuant to section 3-102(a) of the Tort Immunity Act, defendant "has the duty toexercise ordinary care to maintain its property in a reasonably safe condition." 745ILCS 10/3-102(a) (West 1998). To maintain property is to keep it " ' "in a state of repair[or] efficiency," ' " and is considered a ministerial act while to improve property fallsunder the discretionary decision of the government entity. Morrissey, 334 Ill. App. 3d at256, 777 N.E.2d at 394, quoting Anderson, 317 Ill. App. 3d at 1112, 740 N.E.2d at 826,quoting Webster's Third New International Dictionary 1362 (1993). A repair is generallyconsidered a ministerial act for which a defendant may be liable if negligentlyperformed. Morrissey, 334 Ill. App. 3d at 257, 777 N.E.2d at 394; In re Chicago FloodLitigation, 176 Ill. 2d at 194, 680 N.E.2d at 272-73. Therefore, the actual repair here,the filling of the pothole, could be considered a ministerial task, for which defendant hasno immunity if negligently performed. Morrissey, 334 Ill. App. 3d at 257, 777 N.E.2d at394; In re Chicago Flood Litigation, 176 Ill. 2d at 194, 680 N.E.2d at 272-73. However,whether acts are discretionary or ministerial must be determined " 'on a case-by-casebasis.' " Morrissey, 334 Ill. App. 3d at 257, 777 N.E.2d at 394, quoting Snyder v. CurranTownship, 167 Ill. 2d 466, 474, 657 N.E.2d 988, 993 (1995). Depending on thecircumstances of a particular case, an act which might be considered a repair can be adiscretionary matter. Wrobel v. City of Chicago, 318 Ill. App. 3d 390, 396, 742 N.E.2d401, 407 (2000), citing In re Chicago Flood Litigation, 176 Ill. 2d at 195, 680 N.E.2d at273.

In Wrobel, 318 Ill. App. 3d 390, 742 N.E.2d 401, this same defendant moved forsummary judgment in the plaintiffs' personal injury action, asserting discretionaryimmunity pursuant to section 2-201 for its alleged failure to maintain the public roadwayin reasonably safe condition. The plaintiffs were injured in a collision when a third partylost control of his car after striking a pothole in the roadway and veered into oncomingtraffic. The court held that, "under the facts and circumstances" of that case, thepreparation and filling of potholes were discretionary acts and policy determinations. Wrobel , 318 Ill. App. 3d at 395-96, 742 N.E.2d at 406-07. The evidence showed thatthe manner in which the asphalt mixture was applied to potholes differed among thevarious asphalt work crews, that "[i]n particular part, the crews do not follow any uniformapproach of handling asphalt debris and water within a pothole to be repaired." Wrobel,318 Ill. App. 3d at 392, 742 N.E.2d at 404. In addition, a supervisor's testimony showedthat asphalt workers used discretion and personal judgment in determining how to fillpotholes. Although the supervisor prescribed a method for repairs and the workersunder his supervision had no discretion to decide whether to follow that method, theamount of asphalt and moisture actually removed from a pothole and determined to besufficient was left to the personal judgment of the workers. Encompassed within thatjudgment are policy considerations of time and resource allocation among the variouspotholes scheduled for repair on a particular work day.

In Morrisey, defendant similarly moved for summary judgment in a wrongful deathaction, asserting discretionary immunity pursuant to section 2-201 for its alleged failureto maintain the public roadway in reasonably safe condition. The plaintiffs' deceasedswere killed in a collision when one of them allegedly lost control of her car due to thepoor condition of the roadway and the defendant's failure to warn of or to repairpotholes. The court noted that there was no evidence presented which indicated thatanyone had made any decision at all regarding the pothole at issue. The court,therefore, denied summary judgment, finding that questions of fact existed as to whetherthe case involved decisions which could be characterized as discretionary versusministerial. Where questions of fact exist regarding the distinction, summary judgmentshould not be granted. Morrissey, 334 Ill. App. 3d at 255, 777 N.E.2d at 393.

As in Morrissey, there is no evidence in the record regarding the filling of thepothole at issue here. Although the record does contain evidence that a repair crew hasdiscretion regarding whether a particular repair can be done or should be done on aparticular day, it contains no evidence regarding whether the actual repair of a potholeis discretionary, let alone any evidence regarding the filling of the pothole into whichplaintiff stepped. If repairing a pothole is done pursuant to a set procedure with no roomfor discretionary decisions, it is a ministerial act. See In re Chicago Flood Litigation, 176Ill. 2d at 196-97, 680 N.E.2d at 273. Unlike in Wrobel, there is no evidence hereregarding how a repair is actually performed. There is no evidence regarding whether aplan exists for pothole repair such that workers fill potholes pursuant to a set method ina prescribed manner without any exercise of discretion or whether, as in Wrobel, theyuse their own judgment in performing the repair. Determinations regarding whether anact or omission is discretionary versus ministerial are fact specific. Wrobel , 318 Ill.App. 3d at 395-96, 742 N.E.2d at 406-07. There are no such facts available here fromwhich to make that determination and summary judgment was, therefore, improper. Morrissey, 334 Ill. App. 3d at 255, 777 N.E.2d at 393.

Moreover, a question of fact exists regarding whether the repair was adequatelyperformed. A municipality has a duty to reasonably maintain its crosswalks for the useof pedestrians (Wojdyla v. City of Park Ridge, 209 Ill. App. 3d 290, 293, 568 N.E.2d 144,145 (1991)), and the record shows that defendant maintained the crosswalk at issuehere by repairing the pothole. Kenneth Rigan, chief engineer for defendant's bureau ofstreets maintenance division at the time of plaintiff's accident, acknowledged that, basedon photographs taken two days after the accident, "some crewman at some point madethe determination to fix or patch the pothole." Rigan opined that the pothole had beenfilled with a cold mix and that the patch job appeared to be properly done. Thisevidence that the pothole exhibited signs of repair made prior to plaintiff's accident isevidence that, at some point in time, defendant had notice that the pothole was thereand decided to repair it.

Once defendant embarked on the repair, it had a duty to perform the repair in a "'reasonably safe and skillful manner' " (Greene, 73 Ill. 2d at 108, 382 N.E.2d at 1209,quoting Johnston, 405 Ill. at 466, 91 N.E.2d at 404), "with reasonable care and in anonnegligent manner" (Snyder, 167 Ill. 2d at 474-75, 657 N.E.2d at 993). If defendantcreates a hazardous condition, it must respond in damages if someone is injured as aresult. Washington v. City of Chicago, 188 Ill. 2d 235, 240, 720 N.E.2d 1030, 1033(1999), citing Baran v. City of Chicago Heights, 43 Ill. 2d 177, 181, 251 N.E.2d 227, 229(1969). Dr. Bynum's opinion is that the repair was inadequate and created a hazardouscondition while Rigan's testimony is that the repair appeared to be properly done. Thedetermination of whether the repair was adequate is material to plaintiff's claim becausedefendant is liable for the negligent performance of a ministerial repair task. If therepair was inadequate, defendant's section 2-201 affirmative defense fails. Given theconflicting evidence, we find that a genuine issue of material fact exists as to whetherthe repair was adequately performed and that the court erred in granting summaryjudgment to defendant.

Dr. Bynum's Affidavit

Since discovery will be reopened to permit plaintiff to disclose Dr. Bynum as herexpert, an analysis of the court's determination that it could not consider Dr. Bynum'saffidavit in support of plaintiff's response to defendant's motion for summary judgmentbecause Dr. Bynum was barred from testifying at trial is superfluous. Suffice it to saythat Supreme Court Rule 191, which sets forth the requirements for affidavits used insupport of and in opposition to motions for summary judgment, does not state therequirement that the affiant must be sworn as a witness. Rather, the rule states that theaffidavit must "affirmatively show that the affiant, if sworn as a witness, can testifycompetently" to the contents of the affidavit. (Emphasis added.) 134 Ill. 2d R. 191(a). "[A] literal reading of Rule 191 requires that the affiant could testify competently, not thataffiant will testify. If the supreme court had intended that Rule 191 affiants be disclosedas expert trial witnesses, it could have specifically provided for such." (Emphasis inoriginal.) Brooks v. Illinois Masonic Hospital & Medical Center, 240 Ill. App. 3d 521, 524-25, 608 N.E.2d 483, 486 (1992) (court erred in striking undisclosed expert's affidavitpresented in opposition to motion for summary judgment even though plaintiff indicatedthat expert would not be called at trial). See also Andrews v. Northwestern MemorialHospital, 184 Ill. App. 3d 486, 540 N.E.2d 447 (1989) (trial court erred in strikingundisclosed expert's affidavit presented in opposition to motion for summary judgmentsolely because prior order limited parties to one expert; plaintiff should have beenallowed opportunity to modify order to enable him to name additional expert).

For the reasons stated above, we reverse the decision of the trial court andremand for further proceedings.

Reversed and remanded.

HARTMAN and GREIMAN, JJ., concur.

1. A different judge presided over the hearing on defendant's motion for summaryjudgment than presided over the previous motion hearings.