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Modified on Denial of Rehearing

PRESIDING JUSTICE GALLAGHER delivered the opinion of the court:

Plaintiffs John Morrissey and Rosa Herrera brought wrongful death actions against theCity of Chicago (the City) seeking to recover damages in connection with the deaths of SusanMorrissey and Juan Manuel Herrera, Sr. On January 31, 1997, Susan Morrissey and JuanManuel Herrera, Sr., were killed as the result of a two-vehicle collision in the 7300-7700 blockof South Kedzie Avenue in the City of Chicago. The fatal collision occurred after SusanMorrissey lost control of her vehicle and crossed the center line of traffic, hitting the vehicle inwhich Juan Manuel Herrera was a passenger. Plaintiffs allege that the cause of the loss ofcontrol and subsequent collision was the City's failure to maintain the roadway in a reasonablysafe condition by, among other things, failing to warn of or to repair potholes. The City movedfor summary judgment on plaintiffs' claims, asserting, among other things,⁽¹⁾ that it was immunefrom liability pursuant to certain sections of the Local Governmental and GovernmentalEmployees Tort Immunity Act (Tort Immunity Act) which included sections 2-201 and 3-102(a).745 ILCS 10/2-201, 3-102(a) (West 1994). On August 2, 2001, following a hearing, the circuitcourt denied the City's motion for summary judgment, finding that questions of fact existed as to(1) whether the City's acts were discretionary or ministerial in the present case and (2) whetherthe City had constructive or actual notice under the immunity provisions of the Tort ImmunityAct. On September 5, 2001, however, after considering a joint motion of the parties, the courtcertified the following question for interlocutory appeal pursuant to Supreme Court Rule 308(155 Ill. 2d R. 308):

"Is a municipality immune from liability under section 2-201 of the LocalGovernmental and Governmental Employees Tort Immunity Act when themunicipality is sued for breaching the duty to maintain a public roadway in areasonably safe condition?"

On October 9, 2001, this court allowed the City's petition for leave to appeal. Oralarguments were heard on June 13, 2002. For the reasons that follow, we now dismiss thisappeal.

A local governmental entity is liable in tort on the same basis as a private tortfeasorunless a valid statute dealing with tort immunity imposes limitations upon that liability. Harinekv. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 345, 692 N.E.2d 1177, 1182-83(1998). Section 2-201 of the Tort Immunity Act provides:

"Except as otherwise provided by Statute, a public employee serving in aposition involving the determination of policy or the exercise of discretion is notliable for an injury resulting from his act or omission in determining policy whenacting in the exercise of such discretion even though abused." 745 ILCS 10/2-201(West 1998).

Section 3-102(a) of the Tort Immunity Act provides:

"Except as otherwise provided in this Article, a local public entity has theduty to exercise ordinary care to maintain its property in a reasonably safecondition for the use in the exercise of ordinary care of people whom the entityintended and permitted to use the property in a manner in which and at such timesas it was reasonably foreseeable that it would be used, and shall not be liable forinjury unless it is proven that it has actual or constructive notice of the existenceof such a condition that is not reasonably safe in reasonably adequate time prior toan injury to have taken measures to remedy or protect against such condition." 745ILCS 10/3-102 (West 1998).

The parties disagree as to how these relevant statutes should be interpreted with respect to theinstant case. Plaintiffs apparently take the position that the express codification by the legislatureof the duty to maintain property under section 3-102(a) rendered ministerial, as a matter of law,the alleged acts of negligence here, such that the immunity of section 2-201 could never apply. The City apparently takes the diametrically opposed position that, despite the duty to maintain itsproperty, it is entitled to absolute immunity regarding all of its decisions regarding pothole repair,i.e., when, where, how and whether to repair a pothole, because all involve both a policydetermination and the exercise of discretion and fall squarely within the immunity providedunder section 2-201.⁽²⁾

Our supreme court has often stated that the Tort Immunity Act is "in derogation of thecommon law" and must be strictly construed against the local government entity. See Snyder v.Curran Township, 167 Ill. 2d 466, 477, 657 N.E.2d 988, 994 (1995); Vaughn v. City of WestFrankfort, 166 Ill. 2d 155, 651 N.E.2d 1115 (1995); Curatola v. Village of Niles, 154 Ill. 2d 201, 208, 608 N.E.2d 882 (1993); Aikens v. Morris, 145 Ill. 2d 273, 278, 583 N.E.2d 487, 490(1991). Although the immunities afforded to units of local government under the Tort ImmunityAct, including the immunity pursuant to section 2-201, may preclude a plaintiff's right to recoverdamages, each immunity operates as an affirmative defense that must be properly raised andproven by the public entity. Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493,503, 732 N.E.2d 528, 535 (2000).

The City asserts in its brief that "the circuit court erred in recognizing an exception tosection 2-201's discretionary immunity whenever a local government is alleged to have breachedits duty to maintain the public roadway in a reasonably safe condition." (Emphasis added.) Contrary to the City's characterization of the trial court's decision, our review of the transcript ofthe hearing on defendant's motion for summary judgment shows that the trial court, in denyingsummary judgment, instead determined that questions of fact existed as to whether the presentcase involved decisions which could be characterized as ministerial or discretionary, which is therelevant inquiry regarding the applicability of section 2-201. In fact, the trial court noted thatthere was nothing in the testimony before it which indicated that anyone had in fact even madeany "decision" with respect to this particular hole. Where questions of fact exist regarding thedistinction, grants of summary judgment have been held to be error. Courson v. Danville SchoolDistrict No. 118, 301 Ill. App. 3d 752, 704 N.E.2d 447 (1998).

In Courson, a student was injured during class while using a saw with the safety guardremoved. The court noted the distinction between situations involving the making of a policychoice and the exercise of discretion and situations involving some oversight or mereinadvertence. Courson, 301 Ill. App. 3d at 757-58, 704 N.E.2d at 451. The court held thatfactual questions existed as to whether the removal of the guard was an exercise of discretion, inwhich case immunity might apply, or simply an oversight, in which case the omission would notbe immunized. Thus, because the defendant district, by failing to establish that the omissionthere was a discretionary act, had not met its burden of proof, the motion for summary judgmentshould have been denied. Courson, 301 Ill. App. 3d at 758, 704 N.E.2d at 451; see also Roark v.Macoupin Creek Drainage District, 316 Ill. App. 3d 835, 841, 738 N.E.2d 574 (2000)(concluding that issue of whether a defendant's decision not to repair a drainage system wasdiscretionary or ministerial presented a question of fact).

More recently, in Anderson v. Alberto-Culver USA, Inc., 317 Ill. App. 3d 1104, 740N.E.2d 819 (2000), this court reversed a trial court's grant of summary judgment to municipaldefendants on grounds of governmental immunity where factual questions remained. As thecourt explained:

"[P]laintiffs may very well succeed in demonstrating that municipaldefendants failed to use ordinary care in maintaining [their property] in areasonably safe condition. Every failure to maintain property could be describedas an exercise of discretion under municipal defendants' expansive approach togovernmental immunity. The legislature could not have intended such a result;otherwise, it would not have codified the common law duty to maintain propertyunder section 3-102 of the [Tort Immunity] Act. The Tort Immunity Act must bestrictly construed against the public entity involved.[Citation.]

Accordingly, summary judgment may not be entered where there is amaterial fact question of whether public property was maintained in conformitywith applicable safety standards * * *" (Emphasis added.) Anderson, 317 Ill.App. 3d at 1117, 740 N.E.2d at 829.

Plaintiffs, relying in part on Anderson, assert that "when a municipality has the duty torepair, the routine maintenance of a public roadway via pothole repair is a ministerial act." InAnderson, the court stated as follows:

"Plaintiffs allege that municipal defendants failed to maintain the RSA[⁽³⁾]in a reasonably safe condition as provided in section 3-102, in contrast to havingfailed to make an improvement to the RSA. A statutory provision concerned withpublic rights-of-way defines 'maintain' and 'maintenance' as '[t]he performance ofall things necessary to keep a highway in serviceable condition for vehiculartraffic.' 605 ILCS 5/2-214 (West 1998). This definition is supported by theordinary dictionary definition, that to maintain is 'to keep in a state of repair, [or]efficiency.' Webster's Third New International Dictionary 1362 (1993). 'Improvement,' on the other hand, is defined as a permanent addition to orbetterment of real property that enhances its capital value; it involves theexpenditure of labor or money and is designed to make the property more usefulor valuable as distinguished from ordinary repairs. Webster's Third NewInternational Dictionary 1138 (1993). To maintain property is considered aministerial act; to improve property falls under the discretionary decision of thegovernment entity." [Emphasis omitted and added.] Anderson, 317 Ill. App. 3d at1112-13, 740 N.E.2d at 826, citing Koltes v. St. Charles Park District, 293 Ill.App. 3d 171, 176, 687 N.E.2d 543 (1997), and Kennell v. Clayton Township, 239Ill. App. 3d 634, 640-42, 606 N.E.2d 812 (1992).

The City contends that Anderson is distinguishable because it involved specific safetystandards of the Federal Aviation Administration with which the municipal defendants wererequired to comply, whereas the present case involves no binding statute, regulation, or policymandating how crew supervisors are to assign their crews. The City acknowledges, however,that a municipality is not immune from liability for the performance of ministerial tasks. See,e.g., In re Chicago Flood Litigation, 176 Ill. 2d 179, 194, 680 N.E.2d 265, 272 (1997), citingCity of Chicago v. Seben, 165 Ill. 371, 377-78, 46 N.E. 244 (1897)(in which, although discussingpublic improvements, the court explained that a municipality's selection and adoption of a planmay be discretionary but, as soon as the entity begins to carry out that plan, it actsministerially).

Our supreme court has explained that it "has long recognized that the distinction betweendiscretionary and ministerial functions resists precise formulation, and that the determinationwhether acts are discretionary or ministerial must be made on a case-by-case basis." Snyder v.Curran Township, 167 Ill. 2d 466, 474, 657 N.E.2d 988, 992-93 (1995), citing Johnston v. Cityof Chicago, 258 Ill. 494, 497, 101 N.E. 960 (1913), and Johnston v. City of East Moline, 405 Ill.460, 466, 91 N.E.2d 401 (1950). "Discretion" connotes a conscious decision. Corning v. EastOakland Township, 283 Ill. App. 3d 765,768, 670 N.E.2d 350, 353 (1996). As the trial courtnoted, questions of fact remain on the issue of whether the City actually made a consciousdecision that would entitle it to discretionary immunity regarding the alleged failure to repair thepothole in question.

Illinois Supreme Court Rule 308 provides in pertinent part:

"When the trial court, in making an interlocutory order not otherwiseappealable, finds that the order involves a question of law as to which there issubstantial ground for difference of opinion and that an immediate appeal fromthe order may materially advance the ultimate termination of the litigation, thecourt shall so state in writing, identifying the question of law involved."155 Ill. 2d R. 308(a).

Supreme Court Rule 308 is an exception to the general rule that only final orders from a court aresubject to appellate review. Rule 308, governing permissive interlocutory appeals, was intendedto be used sparingly; it was not intended to open the floodgates to a vast number of appeals frominterlocutory orders in ordinary litigation. Camp v. Chicago Transit Authority, 82 Ill. App. 3d 1107, 403 N.E.2d 704 (1980). Thus,"[a]ppeals under Rule 308 should be limited to certain'exceptional' circumstances; the rule should be strictly construed and sparingly exercised." Vossv. Lincoln Mall Management Co., 166 Ill. App. 3d 442, 445, 519 N.E.2d 1056 (1988). Afternow reviewing the briefs and the record in this case, conducting our independent research andallowing oral arguments, we do not believe the interlocutory order involves a question of law asto which there is a substantial ground for difference of opinion or that an immediate appeal fromthe order may materially advance the ultimate termination of the litigation.

In Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 693 N.E.2d 358 (1998), the IllinoisSupreme Court declined to answer a certified question where, as here, factual issues remained. The court stated as follows:

"Although the matter is framed as a question of law, we believe that any answerhere would be advisory and provisional, for the ultimate disposition *** willdepend on the resolution of a host of factual predicates. For proof that factualissues remain, we need look no further than the trial judge's ruling on thedefendants' motion for summary judgment on this count: in denying the motion,the trial judge stated that issues of material fact remained, which precluded entryof summary judgment." Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d at 469, 693N.E.2d at 363-64.

We believe that the same principle applies to the certified question here. The certified question,as phrased, necessarily involves factual considerations and can only be answered equivocally. The basis of the trial court's denial of summary judgment, in the instant case, was the existenceof material questions of fact. The trial court's order does not involve a question of law as towhich there is substantial ground for difference of opinion. Thus, the City's assertion that thecourt, in denying its motion for summary judgment, erred in recognizing an exception to section2-201's discretionary immunity whenever a local government is alleged to have breached its dutyto maintain the public roadway in a reasonably safe condition mischaracterizes the trial court'sorder. Any answer we could give to the certified question would be equivocal, as well as,"advisory and provisional." Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d at 469, 693 N.E.2d at363-64; Arriola v. Time Insurance Co., 323 Ill. App. 3d 138, 152, 751 N.E.2d 221, 232 (2001);see also Courson, 301 Ill. App. 3d at 758, 704 N.E.2d at 451 ("It is not clear how the supremecourt would reconcile sections 2-201 and 3-102, but we need not decide that question now. It issufficient to note that the District is not entitled to summary judgment, because it has notestablished that the failure to provide the saw guard was a discretionary act"). Therefore, wenow vacate our order of October 9, 2001, allowing this interlocutory appeal. The City's petitionfor leave to appeal is denied and this appeal is dismissed.

Appeal dismissed.

O'BRIEN, P.J. and BUCKLEY, J. concurring.

1. Those matters were unrelated to the subsequently certified question.

2. During oral argument, however, the City conceded that a ministerial duty might bebreached where a crew worker is told to fill a pothole but, instead, goes to the race track.

3. "RSA" stands for "Runway Safety Area," and is a term used by the Federal AviationAdministration to refer to the area surrounding a runway designed to enhance the safety ofairplanes which undershoot, overrun or veer off the runway, and it provides greater accessibilityfor firefighting and rescue equipment during such incidents.