Find Legal Information

No. 2--03--1118

Plaintiff, Kevin's Towing, Inc., filed a complaint against defendants, Bette Thomas and theCity of North Chicago, alleging that defendants interfered with a towing contract between plaintiffand Edward Hines Lumber Company (Hines). The trial court granted summary judgment indefendants' favor on the basis that defendants were entitled to discretionary immunity under section2--201 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort ImmunityAct or Act) (745 ILCS 10/2--201 (West 2000)). We affirm.

The present dispute began on Saturday, June 30, 2001, when plaintiff towed a number ofunauthorized cars from Hines' parking lot in the City of North Chicago (City) and took them toplaintiff's storage lot in Waukegan. Plaintiff originally had a written towing contract with NorthChicago Lumber, the predecessor to Hines, and Hines had continued the relationship under the sameterms. The Hines lot is located near the entrance to the Great Lakes Naval Base, which was holdinga Fourth of July celebration. When the celebration ended and the vehicle owners returned to the lot,they discovered that their cars had been towed. The vehicle owners were informed that theirautomobiles had been transported to plaintiff's facility in Waukegan but that they could not retrievethem that night. Eventually, the North Chicago police department and Bette Thomas, the City'smayor, were notified. Mayor Thomas went to Hines' lot to see if she could resolve the situation.

Mayor Thomas testified in her deposition that when she arrived at the lot, she encounteredabout 15 people, including angry adults and crying children. It was chaotic, with people cursing andscreaming. At that time, Mayor Thomas did not know anything about the lot, including whether thelot was public or private, who owned the lot, or who had towed the cars.

Kelly Breneisen, plaintiff's employee, testified in her deposition that she was instructed byplaintiff's dispatch service to contact the police. The North Chicago police department, in turn,advised Breneisen to call the mayor. Mayor Thomas asked Breneisen to allow a pastor to retrievechurch keys from his car because he needed them to open the church the next day. Breneisen refused,saying that it was dangerous to release cars at night. The mayor seemed to understand. However,in a subsequent conversation, the mayor angrily demanded that plaintiff release all the vehicles butthen calmed down and again asked for just the pastor's keys. Breneisen told Mayor Thomas that shecould bring the pastor to plaintiff's facility but that a police officer should be present for everyone'ssafety. Breneisen dispatched driver Fred Schultz to the office to release the pastor's keys.

Mayor Thomas had all of the vehicle owners and passengers transported in City vehicles toplaintiff's office in Waukegan. She testified that she did so because she felt bad for the families anddid not want them to feel that the City was at fault. Mayor Thomas was also concerned that theincident would generate bad publicity for the City. Mayor Thomas felt that she should get thefamilies out of the City and take them to where their cars were.

Schultz testified in his deposition that when he arrived at plaintiff's office, he saw between 25and 30 people standing around the office lot. People demanded their cars, and Schultz feltthreatened. Mayor Thomas introduced herself to Schultz and became "belligerent and demandatory[sic] and very aggressive and outspoken." She demanded that plaintiff release all of the vehicles,saying that "Kevin has got a real racket going here" and should not be towing in the City becauseplaintiff did not have a facility there. She also said that she would do everything in her power,including contacting her attorneys, to ensure that plaintiff did not tow from the Hines lot again. Waukegan police officers arrived, and they negotiated the release of all of the towed vehicles.

Mayor Thomas testified that she felt that plaintiff's employees treated her without respect. She was not angry at plaintiff but was angry and "a little annoyed" with one of plaintiff's employeesbecause the employee was not contacting someone with authority to release the cars.

According to Kevin DePerte, plaintiff's owner, he learned of the June 30 incident on July 2,2001. He called Mayor Thomas that day. Mayor Thomas "promised" that plaintiff would lose itstowing contract with Hines, and she said that she would attack plaintiff in a City newsletter. MayorThomas said that she was "not done with Kevin's yet," and when DePerte began to respond to herstatements, she hung up.

The mayor approved an editorial in the City newsletter, criticizing plaintiff. The editorialasked citizens to call city hall if they had any complaints about plaintiff, but no one called to complain. Mayor Thomas asked City officials to check if the Hines lot was in compliance with the City code,and the City issued a citation to Hines due to the lot's condition. Mayor Thomas also arranged tohave a meeting with Hines' representatives.

According to Robert Long, a City attorney, the mayor asked if she had the right to forceHines to get a different towing company. Long told Mayor Thomas that she could not force Hinesto do so but that, at the meeting, the City would try to negotiate with Hines to obtain a towingcompany whose owner the City could contact in the middle of the night.

The meeting took place on August 14, 2001. In attendance were the mayor, Long, threeother City officials, two Hines employees, and Hy Addison, Hines' corporate attorney. MayorThomas testified that the purpose of the meeting was to see if the lot was in compliance with Cityordinances. Addison believed that the purpose of the meeting was to have Hines terminate itsrelationship with plaintiff.

At the meeting, City officials discussed zoning, licensing, and other matters related to theparking lot, including the June 30 incident. According to Addison, the meeting was cordial and allof the issues mentioned were legitimate City concerns that were within the City's authority to lookinto and discuss. Addison also felt that City officials were explicit about their desire to have Hinesend their relationship with Kevin's, in part because the City was raising many issues that Hines couldbe forced to resolve. Mayor Thomas testified that she did not request that Hines end its relationshipwith plaintiff, but she did say that it would be a good idea if Hines considered a local towing companyso that if another incident occurred, the City would be able to contact the company's owner andresolve the situation. The City provided Hines with the names of three local towing companies. Hines had previously been satisfied with plaintiff's work and had no intention of ending therelationship. However, as a direct result of the meeting, Addison terminated the contract because hewanted "to make the City of North Chicago happy." Hines then contracted with All Star Towing,a local towing company. The City did not raise the zoning, licensing, or other matters related to thelot again.

The owners of All Star Towing had assisted Mayor Thomas in her mayoral campaign byputting up signs, making telephone calls, and handing out leaflets. All Star Towing was a newbusiness when Mayor Thomas took office, and she helped the owners get a towing license and obtainCity business. The company's weekend office hours are 8 a.m. to noon on Saturday; it is closed onSunday. Due to safety concerns, the cars towed by All Star Towing may be picked up only duringoffice hours. The company has deviated from this policy on numerous occasions.

After Hines terminated its relationship with plaintiff, plaintiff filed suit against defendants. Plaintiff's third amended complaint alleged tortious interference with contract (count I) and abuse ofgovernmental power (count II). Defendants moved for summary judgment, on count I based onimmunity from suit under section 2--201 of the Tort Immunity Act, and on count II on the groundthat plaintiff did not have a protectable property interest. The trial court granted the motion, andplaintiff timely appealed.

On appeal, plaintiff contests the trial court's grant of summary judgment on count I only. Summary judgment is appropriate where the pleadings, depositions, admissions, and affidavits on file,when viewed in the light most favorable to the nonmoving party, show that there is no genuine issueof material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2--1005(c) (West 2002). We review de novo a grant of summary judgment. Shannon v. Boise CascadeCorp., 208 Ill. 2d 517, 524 (2004).

The Tort Immunity Act's purpose is to protect local public entities and public employees fromliability arising from the operation of government. 745 ILCS 10/1--101.1 (West 2000). Inpromulgating the Tort Immunity Act, the legislature "sought to prevent the dissipation of public fundson damage awards in tort cases." Van Meter v. Darien Park District, 207 Ill. 2d 359, 368 (2003). Our primary goal in construing a statute is to ascertain and give effect to the legislature's intent, andwe will not depart from a statute's plain language by reading into it exceptions, limitations, orconditions that conflict with the express legislative intent. Harrison v. Harden County CommunityUnit School District No. 1, 197 Ill. 2d 466, 471-72 (2001). The immunity afforded under the Actis an affirmative defense that is the defendant's burden to establish. People ex rel. Birkett v. City ofChicago, 325 Ill. App. 3d 196, 203 (2001). If an immunity does not apply, a municipality is liable intort to the same extent as a private party. Van Meter, 207 Ill. 2d at 368-69.

In their motion for summary judgment, defendants claimed that they were immune fromliability on count I under section 2--201 of the Tort Immunity Act. That section states:

"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 injuryresulting from his act or omission in determining policy when acting in the exercise of suchdiscretion even though abused." 745 ILCS 10/2--201 (West 2000).

This immunity also extends to a local public entity, as the entity is not liable for an employee's actionswhen the employee is immune. 745 ILCS 10/2--109 (West 2000). For section 2--201 to apply, theemployee's position may involve either determining policy or exercising discretion. Arteman v.Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 484 (2002). However, theemployee's act or omission leading to the alleged injury must be both a policy determination and anexercise of discretion. Arteman, 198 Ill. 2d at 484. We discuss these requirements at length later inour decision.

Citing Harrison, 197 Ill. 2d 466, plaintiff first argues that section 2--201 has a good-faithrequirement. In Harrison, the supreme court stated that the immunity granted by the Tort ImmunityAct to public officials is "premised upon the idea that such officials should be allowed to exercise theirjudgment in rendering decisions without fear that a good-faith mistake might subject them to liability." (Emphasis added.) Harrison, 197 Ill. 2d at 472.

We disagree with plaintiff's argument. In Harrison, the supreme court did not expressly holdthat section 2--201 requires that a decision be made in good faith. If fact, the supreme courtrecognized that rules of statutory construction require a court to interpret a statute's plain languageand not read into it exceptions, limitations, or conditions that conflict with the express legislativeintent. Harrison, 197 Ill. 2d at 471-72. Just a few months before it issued the Harrison decision, thesupreme court held that the Tort Immunity Act contains no exception for "corrupt or maliciousmotives." Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 486 (2001). As such,section 2--201 does not require that the act be done in good faith.

As CDG Enterprises, Inc. is highly relevant to this case, we examine it in more detail. There,CDG petitioned the planning commission for the Village of Bloomingdale to annex and rezone fiveparcels of land so that CDG could build a subdivision. The village denied the petition and sued CDGfor payment for services. CDG counterclaimed for tortious interference with business expectancy andrecovery under quasi-contract. CDG alleged that although village officials repeatedly met with CDGand said that its project would be approved, the village secretly pursued the acquisition anddevelopment of a golf course adjacent to the parcels, prepared a plan to redesign the golf course sothat some of the holes would be on the parcels, and met with other individuals to create oppositionto CDG's plan. CDG also alleged that an individual who later bought one of the parcels hadconnections to certain village officials. CDG Enterprises, Inc., 196 Ill. 2d at 486-87.

The trial court dismissed CDG's counterclaim, ruling that it was barred by the Tort ImmunityAct. The appellate court reversed, holding that the Act's immunities were limited by the common-lawexception for "corrupt or malicious motives." CDG Enterprises, Inc., 196 Ill. 2d at 488-89. Thesupreme court reversed the appellate court, holding that the Act's plain language prohibited thecreation of such an exception. It noted that throughout the Act, the legislature had recognizedexceptions to immunity for willful and wanton misconduct, and the court reasoned that if thelegislature had intended to create an exception for "corrupt or malicious motives," it would haveexpressly stated so. CDG Enterprises, Inc., 196 Ill. 2d at 493-95. The supreme court also held thatthe appellate court ignored the language of section 2--104 of the Act (745 ILCS 10/2--104 (West1998)), which immunizes a local public entity from liability for injury caused by the denial of a permit. CDG Enterprises, Inc., 196 Ill. 2d at 495. Although CDG claimed that it was really challenging theprocess by which the petition was denied, the supreme court stated that it was irrelevant whether "theVillage denied the petition through an 'abuse of official process and power,' through 'corrupt andmalicious misuse of power,' or for 'corrupt or malicious motives,' " because section 2--104 containedno reference to intent. CDG Enterprises, Inc., 196 Ill. 2d at 495-96.

Plaintiff argues that the holding in CDG Enterprises, Inc. is limited to section 2--104 of the Act(745 ILCS 10/2--104 (West 2000)) and that any mention of section 2--201 is dicta. We disagree, asthe supreme court specifically stated that section 2--201 was at issue in the case (CDG Enterprises,Inc., 196 Ill. 2d at 492), discussed section 2--201 throughout the case, and held that it was affirming"the trial court's dismissal of CDG's counterclaim in tort as barred by the Village's sovereign immunityunder sections 2--104, 2--106, 2--109, and 2--201 of the Act" (emphasis added) (CDG Enterprises,Inc., 196 Ill. 2d at 500). Plaintiff also attempts to distinguish CDG Enterprises, Inc. by stating that the village acted for its own benefit without regard to the impact on CDG, whereas in this case MayorThomas specifically intended to harm plaintiff. However, CDG never alleged that the villagebenefitted from its conduct (CDG Enterprises, Inc., 196 Ill. 2d at 488), and the supreme court heldthat the Tort Immunity Act immunized the village even if it had "corrupt or malicious motives" fordenying the petition. CDG Enterprises, Inc., 196 Ill. 2d at 495-96. We also note that section 2--201contains no exception to immunity for willful and wanton misconduct (Harinek v. 161 North ClarkStreet Ltd. Partnership, 181 Ill. 2d 335, 347 (1998)), which is defined under the Act as "actual ordeliberate intention to cause harm *** or conscious disregard for the safety of others or their property"(emphasis added) (745 ILCS 10/1--210 (West 2000)).

Plaintiff next argues that Mayor Thomas's act of asking Hines to use a local towing companyis not protected by section 2--201 because it was not discretionary. While the negligent performanceof discretionary duties cannot subject a municipality to tort liability, the negligent performance ofministerial duties can. Harrison, 197 Ill. 2d at 472. Discretionary acts are "those which are uniqueto a particular public office," whereas ministerial acts are "those which a person performs on a givenstate of facts in a prescribed manner, in obedience to the mandate of legal authority, and withoutreference to the official's discretion as to the propriety of the act." Snyder v. Curran Township, 167Ill. 2d 466, 474 (1995) (township's duty to place warning sign in conformity with law was a ministerialduty); see also Harinek, 181 Ill. 2d 335 (fire marshal's instruction to individual to stand near a doorduring fire drill was discretionary because he had discretion in determining how, where, and when tohold drill and was under no legal mandate to perform duties in prescribed manner); In re ChicagoFlood Litigation, 176 Ill. 2d 179, 195 (1997) (city's supervisory power over dredging company's piledriving was discretionary because city had broad discretion in choosing where to locate piling). Thereis no precise formula for classifying an act as either discretionary or ministerial, so the determinationmust be made in light of the facts and circumstances of each case. Snyder, 167 Ill. 2d at 474.

Plaintiff claims that the mayor's act was not discretionary, because "retaliation and intent toharm are not unique to the office of Mayor, nor to any public office." Plaintiff further maintains thatwhether the mayor's act was discretionary is a question of fact to be decided by a jury, which couldfind that the mayor's sole motivation was to harm plaintiff. However, categorizing actions as non-discretionary solely based on an employee's intent would conflict with the supreme court's rulings thatsection 2--201 immunity is not limited by willful and wanton conduct (Harinek, 181 Ill. 2d at 347) or"corrupt or malicious motives" (CDG Enterprises, Inc., 196 Ill. 2d at 493-95). As such, even if thetrier of fact determined that the mayor acted maliciously, that would not preclude immunity undersection 2--201. Indeed, for the purposes of summary judgment, we assume the allegations of thecomplaint are true. Therefore, we agree with defendants that we must look primarily at the mayor'sconduct itself, rather than the intent behind it, in determining whether it is protected by section 2--201. Cf. Courson v. Danville School District No. 118, 301 Ill. App. 3d 752 (1998) (Courson I) (grant ofsummary judgment based on section 2--201 immunity reversed because shop teacher had not beendeposed, and factual questions existed as to whether his removal of a table saw's safety shield was adiscretionary decision or negligence). Plaintiff alleged that Mayor Thomas, in her official capacity,asked Hines to use a local towing service. We conclude that the act was discretionary because it isclear that Mayor Thomas was not following a set policy in a routine manner.

Plaintiff further argues that section 2--201 is not applicable because the conduct did not involvea policy decision. As discussed, a public employee's act must be both discretionary and a policydetermination for section 2--201 to apply. Arteman, 198 Ill. 2d at 484. "Policy decisions" are"decisions requiring a governmental entity to balance competing interests and to make a judgment callas to what solution will best serve those interests." Van Meter, 207 Ill. 2d at 379. Illinois courts haveapplied this definition to a wide range of situations. A fire marshal's instruction to an individual tostand near a door during a fire drill was a policy decision because the marshal had to balance thevarious interests competing for the fire department's time and resources, including the interests ofefficiency and safety, in planning and conducting the drill. Harinek, 181 Ill. 2d at 342. Similarly, ashop teacher's decision to remove a table saw's safety shield was a policy determination because theteacher was charged with balancing various interests that competed for the class's time and resources,including the interests of efficiency and safety, and he made a judgment call as to how best to performhis teaching duties. Courson v. Danville School District No. 118, 333 Ill. App. 3d 86, 91 (2002)(Courson II), appeal allowed, 202 Ill. 2d 600 (2002). Workers filling potholes were engaged in policydecisions because they allocated their time and resources among the various potholes to be repaired(Wrobel v. City of Chicago, 318 Ill. App. 3d 390, 395 (2000)), and a principal's denial of a student'srequest to leave school early due to bad weather was a policy decision because it involved balancingthe student's interest with the school's interest in an orderly dismissal (Harrison, 197 Ill. 2d at 474).

Plaintiff argues that unlike the cases discussed above, Mayor Thomas did not balancecompeting interests or make a judgment call, because she was imposing her own agenda of retaliationand intent to harm. Again, such an argument is untenable given that section 2--201 has no exceptionsfor willful and wanton conduct (Harinek, 181 Ill. 2d at 347) or "corrupt or malicious motives" (CDGEnterprises, Inc., 196 Ill. 2d at 493-95). Besides malicious intent, plaintiff offers no argument as towhy the mayor's act of asking Hines to use a local towing company was not a policy decision. Themayor's conduct ostensibly involved balancing Hines' interest in not having unauthorized cars on itsproperty and the City's interest in not having a repeat of the June 30 situation. Furthermore, as withthe fire marshal in Harinek, the shop teacher in Courson II, and the workers repairing potholes inWrobel, Mayor Thomas had to allocate her time and resources among a multitude of concerns, whichin her position involved constituent and City issues. Accordingly, we conclude that defendants areimmune from plaintiff's claim under section 2--201. While this result may seem harsh, we haveinterpreted the statute's plain language, and it is the legislature's prerogative to determine the scopeof discretionary immunity. See Arteman, 198 Ill. 2d at 487-88.

Finally, plaintiff argues that Mayor Thomas specifically denied the facts upon which defendantsbase their immunity claim. According to plaintiff, Mayor Thomas testified, " 'I wasn't mad at Kevin'sTowing or Kevin's. I didn't even hint at that meeting with Hines that they should get a different tower. It is not my contention in this litigation that I had the right to get Hines to change towing companies. I am not contending that.' " The portions of Mayor Thomas's deposition that are included in therecord on appeal do not actually include such a quote, nor does the pleading that plaintiff cited for thisquotation. In any event, anger toward plaintiff is certainly not necessary for immunity under section2--201. Additionally, while Mayor Thomas denied that she asked Hines to terminate its relationshipwith plaintiff or that she had a legal right to do so, she also explained that she "did suggest" that Hinesconsider a local towing company so that if another incident occurred, the City would be able to contactthe company's owner and resolve the situation. As such, Mayor Thomas did not deny the facts uponwhich defendants base their immunity claim.

For the foregoing reasons, we affirm the judgment of the circuit court of Lake County.

Affirmed.

McLAREN and HUTCHINSON, JJ., concur.