NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 190320-U
Order filed August 26, 2022 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
CONNIE PAGE, ) Appeal from the Circuit Court ) of the 13th Judicial Circuit, Plaintiff-Appellant, ) Grundy County, Illinois. ) v. ) Appeal No. 3-19-0320 ) Circuit No. 17-L-21 VILLAGE OF COAL CITY, ) ) The Honorable Defendant-Appellee. ) Lance R. Peterson, ) Judge, presiding. ____________________________________________________________________________
JUSTICE DAUGHERITY delivered the judgment of the court. Presiding Justice O’Brien and Justice McDade concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: Defendant was immune from liability pursuant to sections 2-109 and 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2-109, 2-201 (West 2016)), where defendant made a conscious decision for the area of the roadway at issue, which had been excavated and filled with gravel, to remain unpaved and open to traffic and that decision was both a discretionary decision and a policy decision.
¶2 Plaintiff, Connie Page, filed a complaint against defendant, Village of Coal City, alleging
negligence in the maintenance and repair of a portion of the road where she had been involved in a motorcycle accident. Defendant filed a motion for summary judgment, which the trial court
granted. Plaintiff filed a motion to reconsider, which was denied. Plaintiff appeals, arguing the
trial court erred in granting defendant’s summary judgment motion and denying her motion to
reconsider because: (1) defendant was not immune from liability pursuant to sections 2-109 and
2-201 of the Local Governmental and Governmental Employees Tory Immunity Act (Tort
Immunity Act) (745 ILCS 10/2-109, 2-201 (West 2016)); (2) even though the gravel section of
the road at issue was open and obvious, defendant had reason to anticipate or expect that a
reasonable person in plaintiff’s position would deliberately encounter those portions of the road;
and (3) a material issue of fact remained as to the proximate cause of the motorcycle accident.
We affirm.
¶3 I. BACKGROUND
¶4 Plaintiff filed a negligence complaint against defendant, alleging the following in
pertinent part: on July 23, 2016, plaintiff was traveling southbound on her motorcycle on North
5th Avenue, at or near East 3rd Street, in the Village of Coal City, Illinois, when the tires of her
motorcycle came into contact with a section of loose gravel and, as a result of the sudden change
in the level of the adjoining roadway and the change from the pavement to loose gravel, plaintiff
lost control and was thrown from her motorcycle; prior to that time, defendant had removed
portions of the pavement at that location, leaving a 4 foot by 42 foot patch of gravel in its place;
there was a “substantial variant” in height between the surface of the gravel and the surrounding
pavement, with the surrounding pavement being substantially higher than the gravel; and the
gravel was loose and not compact. Plaintiff additionally alleged, in relevant part, that defendant
was negligent by: (1) removing a significant patch of the roadway; (2) carelessly and negligently
planning and designing North 5th Avenue at or near East 3rd Street; (3) permitting a 4 foot by 42
2 foot section of the roadway to remain unpaved; and (4) failing to repair or replace the missing
pavement that had been replaced by gravel. Plaintiff further alleged that because of defendant’s
wrongful actions, she was thrown from her motorcycle after her tires came in contact with the
unpaved section of the roadway and, as a direct and proximate result of that fall, she was
severely and seriously injured. Defendant denied the allegations and filed affirmative defenses,
which included a claim of comparative negligence and allegations that plaintiff: (1) failed to
watch where she was driving; (2) failed to use the paved section of the lane, which comprised
more than half of the lane; (3) failed to keep a safe and proper lookout; (4) failed to observe a
condition that was open and obvious or could reasonably be expected to be discovered by
plaintiff; (5) failed to use protective riding gear, including a helmet; and (6) operated her
motorcycle while impaired and under the influence of opiates.
¶5 Thereafter, defendant filed a motion for summary judgment, arguing the decision to do
the repair work involved a discretionary decision by the Director of the Public Works, Darrell
Olson, which was immune from liability under sections 10/2-109 and 10/2-201 of the Tort
Immunity Act. Alternatively, defendant argued that the alleged condition of the roadway was
open and obvious and, additionally, that there was no evidence indicating that the alleged
condition of the roadway was the proximate cause of plaintiff’s motorcycle crash. In support of
its motion for summary judgment, defendant attached various documents, including the
deposition transcripts of plaintiff and Darrell Olson, photographs of the portion of the roadway at
issue, and the affidavit of Pamela Carlton, who had witnessed the crash.
¶6 In his deposition, Olson testified that work done by the Public Works Department
involved maintaining streets and roadways in the Village of Coal City. Olson described two
ways to repair potholes—cold patching and hot patching. Due to budgetary reasons, defendant’s
3 own employees completed road work involving cold-patching and preparing the road for hot
patching, while the actual application of hot-mix asphalt to the gravel was contracted out.
Defendant did not have the equipment or resources to apply the hot-mix asphalt. In preparation
for hot patching/paving by the hired contractor, Public Works Department employees would
prepare the area in advance by digging up and removing asphalt, redoing the grade for the base,
and filling the hole. After doing the preparation work for hot patching and prior to the hot-mix
being rolled out by the contractor, defendant would add more gravel or spread out the existing
gravel in an area, as needed. When the hot patching was subsequently done by the contractor, it
would be placed down and rolled out immediately. Olson noted that cold patching was only a
temporary fix and cost almost two or three times as much as hot patching.
¶7 Olson indicated that road repairs would be done when a road became bad enough to
warrant a repair, which would be decided by Olson or a board trustee. Olson inspected the roads
four times per year to identify areas of road in need of repair. He would also inspect an area of
road after a complaint was received about that certain area. If Olson determined that an area
needed to be repaired, he would assess “how bad it [was]” and decide whether the repairs were to
be immediately done or if the repairs could be held off until the contractor came in to do the
annual paving for the Village. If Olson decided that a repair was necessary on an expedited basis,
within the next few days the Public Works Department employees would “core it out” down to
the base, put in different aggregate (stone/road mix), and roll it to compact it. Those repairs
would be checked approximately every two weeks to see if additional gravel was needed.
Thereafter, usually in October, everything would get paved by the contractor. If a repair was not
immediately necessary and could be held off until the time the contractor came in to do the
paving, the area would not be cored out until that time.
4 ¶8 Olson testified that at a Streets and Alley Committee meeting on March 3, 2016, an issue
with water being retained on North 5th Avenue was discussed. Olson explained that if the
shoulder was too high and water was standing on the road, the shoulder of the road would be
cored out and graded to the point that water could run off. Olson indicated that at the meeting on
March 3, 2016, a trustee had indicated that North 5th Avenue was a problem, especially “onto
the edges.” As a result of that complaint, a decision was made to remove the damaged pavement
on North 5th Avenue and have it repaved by the contractor (D Construction). At the time of the
meeting on March 3, 2016, the committee and Olson understood that the existing pavement
should be removed, even if it would remain unpaved for a period of time, because the existing
condition of the road was more dangerous than it would be if were excavated, filled with gravel,
and compacted.
¶9 Olson also testified that after that meeting, the condition of the road at issue worsened, so
“that’s why [they] ended up doing it when [they] did” in June. He explained that from water
sitting on the road, the road alligatored (began cracking) and, when a road started to alligator, it
would begin to lift. He stated, “when it started lifting, that becomes a road hazard.” The repair
work at issue was done right after the start of the fiscal year so having sufficient funds was not a
concern to Olson. He, therefore, made the decision to proceed with the repair. Olson indicated
that deciding whether to remove the pavement from an existing roadway was based on a myriad
of considerations, including the size and location of the pavement being removed, the condition
of the shoulder of the road and ditches around the area, and other pressing needs and priorities of
the Village.
¶ 10 In his deposition, Olson was shown two photographs that he had taken of the area of the
road at issue a few days to a week after the crash. He testified that between May 31 and June 13,
5 2016, Public Works Department employees had cut out a portion of the road, filled it with
aggregate (two-inch stone, three-quarter inch stone, and road mix), and rolled it—(the “June
repair”). The loose road mix/aggregate (hereinafter “gravel”) was compacted with the roller.
After the excavated area was filled with gravel and rolled, it would have been flush with the
surrounding pavement. The area was subsequently paved by a contractor a few months later, in
September or October. In the meantime, the area was open for traffic, so it was possible for some
of the gravel to come out when cars drove over it, which was something that Olson monitored for
until paving was complete. Olson also testified that if Public Works Department employees
“s[aw] something low, they will go ahead and add [gravel]” on their own accord without having
to ask Olson prior to doing so. Olson would also instruct employees to refill or rake gravel areas
at times.
¶ 11 Olson additionally testified that he knew for sure “at some point” more gravel had been
added to the area at issue on two occasions. He further testified that prior to the time he took the
photographs of the area at issue (a few days to a week after plaintiff’s accident), he had
instructed Public Works Department employees to “pull back” into the excavated area
(presumably by raking) some gravel that had been moved onto the shoulder of the road and roll
it. He testified that he had specifically remembered doing so because he had passed the area at
issue on his way to work, noticed it was low, and instructed the Public Works Department
employees to take care of it at that time. Olson testified that the area at issue was “just as hard as
the pavement” and was not loose. He also indicated the gravel area could degrade “over time”
from vehicles passing over it. Olson testified when he took photographs of the rectangle gravel
area at issue (a few days to a week after the accident) he believe the east edge of the area was
low (the side toward the center of the roadway), which was caused by traffic. He testified
6 indicated that area of the road was, however, not any less stable or hard than that pavement, the
gravel was not loose, and the area at issue was in a reasonably safe condition for cars or
motorcycles to travel over it.
¶ 12 Olson additionally testified that the contractor, D Construction, only did resurfacing for
defendant one time per year because the scope of the work that needed to be done. Olson
explained that D Construction was hired to do all the resurfacing one time per year for two or
three days because doing a few patches at different times was not cost effective. It would cost the
Village more to have D Construction come out every time a patch was needed, and there was not
enough money in the budget to do it that way. Defendant did not perform its own hot patching
work because: cost considerations, the limited number of employees in the Public Works
Department, it was less expensive to have paving done by the contractor one time per year, and
the Public Works Department did not have the resources or equipment to do hot patching.
¶ 13 Olson described the area of North 5th Avenue that is at issue as a two-way street, with
one lane running north and the other lane running south. He also testified the rectangle gravel
area at issue took up less than half of the southbound lane and someone operating a motorcycle
would have had enough room on the pavement portion to drive around the gravel section in the
southbound lane. Olson testified that he had formed the opinion that the area of the road at issue
was reasonably safe for motorcycle traffic after the excavation work because the gravel section
took up less than half of the lane, the speed limit was only 25 miles per hour, and the repaired
sections were apparent and visible to oncoming drivers so that they were able to drive around the
area at issue. A motorcyclist traveling in that southbound lane would have had the option to
avoid the gravel area by riding on the pavement portion of the lane or travel straight over the
7 gravel section, which was safe to do. There was adequate room for a motorcyclist to remain on
the pavement of the lane even if another vehicle was traveling in the northbound lane.
¶ 14 In her deposition, plaintiff testified that she did not remember the day of the accident
after 2 p.m. or 3 p.m., and the motorcycle accident took around 6:57 p.m. Plaintiff was informed
after the accident that she had been traveling on the road at issue with her friend David riding a
motorcycle in front of her and her friend Michael riding a motorcycle behind her. Plaintiff
testified, “[t]hey said I hit the gravel, that’s what threw me.” Plaintiff spoke with David after the
accident, who told her that she was already falling to the ground when he looked in his mirror at
the time of the accident. Plaintiff has never spoken with Michael about the accident or about how
she fell. After viewing a photograph of the gravel portion of the road at issue, plaintiff
acknowledged that there had been room to go around the gravel section and she was not aware of
any reason why she could not have done so. She also indicated the gravel area at issue would
have been visible and that it was not a hidden condition. Plaintiff did not know where she had
been looking at the time of the accident. She testified, after looking at photographs of the area at
issue (taken by Olson a few days to a week after the accident), there was a height variance
between the gravel and the roadway but she could be tell how much of a height variance.
¶ 15 In her affidavit, Pamela Carlton averred that she had witnessed plaintiff’s motorcycle
accident and that she was traveling in her vehicle in the opposite-direction (in the northbound
lane). Just prior to the accident Carlton, observed three motorcycles traveling southbound in a
single file. Carlton further indicated that she had observed the second motorcycle (plaintiff’s
motorcycle) travel through the section of the roadway filled with gravel and crash. Carlton
indicated that she did not observe anything that would have blocked plaintiff’s view of the gravel
8 section of the roadway, noting that the gravel section “was large” and plaintiff should have been
able to see it.
¶ 16 In response to defendant’s motion for summary judgment, plaintiff argued that defendant
was not entitled to discretionary immunity where defendant’s employees had no discretion “in
the preparation of the roadway for the eventual paving.” She claimed a question of fact existed as
to whether defendant undertook the repairs in a reasonably safe manner. Plaintiff argued
defendant had decided to excavate the portion of the roadway at issue in June, knowing it would
not be paved for several months and, in the meantime, left the area open to traffic even though it
could degrade and the evidence showed the area at issue was degraded at the time of her accident
where it was “significantly below street grade” and consisted of loose gravel and other material.
¶ 17 In support of her response to defendant’s motion for summary judgment, plaintiff
attached the deposition transcript of Carlton. In her deposition, Carlton testified that she had
witnessed plaintiff’s motorcycle accident on July 23, 2016, which occurred as Carlton was
driving home and traveling northbound on North 5th Avenue. Plaintiff was traveling southbound
in the middle of a single file line with two other motorcycles. Carlton pulled over on the right
shoulder of the northbound lane and stopped her vehicle at some point prior to the gravel area at
issue because had seen the three motorcyclists approaching the gravel area in the opposite lane
and thought it would be safer to pull to the side. Carlton lived on the west side of the road and
had pulled over to the righthand side (the east side) of the northbound lane so the motorcycles
could pass before she turned into her driveway. Carlton testified that she was specifically
watching plaintiff (and not the first motorcyclist) because plaintiff had driven through a prior
gravel area in the road and Carlton was wondering whether plaintiff would travel through the
second gravel area (the area at issue) or go around it. Carlton testified, “[s]he went right through
9 it.” Carlton indicated that as plaintiff entered the gravel area, plaintiff’s front wheel turned to the
east and plaintiff’s motorcycle dropped. Carlton did not know what had caused plaintiff’s wheel
to turn or why plaintiff had lost control of her motorcycle. There had been nothing to obstruct
plaintiff’s view of the road.
¶ 18 Carlton additionally testified that after the area at issue had been excavated and filled
with gravel in June and before it was paved in October, she drove over the area when leaving her
driveway and did not recall bumping down into the area or bouncing up from it. Prior to the area
being excavated and filled with gravel, Carlton had complained to the Village about the
condition of that area of the roadway. Carlton felt that prior to the area being excavated, the
condition of the road (crumbled pavement) was hazardous.
¶ 19 In reply, defendant argued that the evidence demonstrated that defendant’s decision
regarding which repairs were to be done was discretionary and was made in consideration of the
Village’s resources and safety issues. Defendant also argued there had been no evidence that the
portion of the roadway at issue was unsafe at the time of plaintiff’s motorcycle accident and
there had been no evidence that the gravel area at issue was “significantly below” street grade at
the time of the accident. Defendant also argued that there had been no evidence indicating the
gravel section of the roadway caused plaintiff to crash her motorcycle where plaintiff had no
memory of the accident and Carlton, who was the sole eyewitness, testified she did not know
what had caused plaintiff to lose control of the motorcycle.
¶ 20 At the hearing on defendant’s motion for summary judgment, the trial court indicated that
the evidence showed defendant’s decisions to repair the roadway were “conscious decisions,”
resulting from an inspection or complaints about certain areas of roadway in disrepair. The
method of repair was always done the same way, and there were no allegations or evidence that
10 defendant’s method of repair was defective. The trial court further indicated, “[e]very step of this
was conscious, discretionary decisions by [defendant].” The trial court noted that, arguably, the
only part of the process that was not discretionary was, once defendant had identified a location
to be repaired, “they did [the repair work] the same way every time.” The trial court also noted
there was no evidence indicating that the manner in which defendant had done the work, which
was “sort of nondiscretionary and ministerial,” was negligent or that it had caused a hazard.
¶ 21 Plaintiff filed a motion to reconsider, arguing that the trial court misapplied the law on all
three issues raised by defendant—statutory immunity, the open and obvious doctrine, and
proximate cause. After the hearing on the motion, the trial court indicated that defendant
decisions in regard to when and where to do road repairs was “all discretionary.” The trial court
acknowledged plaintiff’s argument that once defendant chose to repair a portion of the road,
defendant had duty to do it in a reasonably safe manner. The trial noted there was no evidence
supporting plaintiff’s contention that the excavated area was significantly below street grade at
the time of the accident and, even with reviewing the photographs, there was no indication that
the repair work had not been completed in a reasonable safe manner. The trial court further
indicated that even though there had been evidence indicating an excavated/graveled/compacted
area could degrade, there was no evidence that the area of roadway at issue had, in fact,
degraded. For those reasons, the trial court denied plaintiff’s motion to reconsider.
¶ 22 Plaintiff appealed.
¶ 23 II. ANALYSIS
¶ 24 On appeal, plaintiff argues the trial court erred by granting defendant’s motion for
summary judgment and by denying her motion to reconsider because: (1) defendant was not
entitled to discretionary immunity under the Tort Immunity Act because there was no evidence
11 defendant’s employees had discretion in preparing area of roadway at issue for eventual paving,
and the evidence showed it could degrade and was significantly below street grade at the time of
the accident and, thus, a question of fact remains as to whether defendant undertook those repairs
in a reasonably safe manner; (2) defendant had reason to anticipate or expect that a reasonable
person in plaintiff’s position would deliberately encounter the open and obvious danger of the
condition of the roadway at issue; and (3) a material issue of fact remained as to the proximate
cause of plaintiff’s motorcycle crash where a reasonable inference could be drawn that the road
condition at issue was a proximate cause. In response, defendant argues the trial court correctly
granted its motion for summary judgment on discretionary immunity grounds. In addition,
defendant contends that the condition of the portion of the road at issue was open and obvious
(with no applicable exception to the open and obvious doctrine) and there was no evidence that
the condition of the area of the road at issue was a proximate cause of plaintiff’s negligence
claim.
¶ 25 A party is entitled to summary judgment where “the pleadings, depositions, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.” 735
ILCS 5/2-1005(c) (West 2016). In reviewing a trial court’s order granting summary judgment,
we must determine whether a genuine issue of material fact existed to precluded summary
judgment or, absent such an issue of fact, whether summary judgment was proper as a matter of
law. Andrews v. Metropolitan Water Reclamation District of Greater Chicago, 2019 IL 124283,
¶ 20. We review a trial court’s order granting summary judgment de novo. Id. ¶ 21.
¶ 26 Under the Tort Immunity Act, “[a] local public entity is not liable for an injury resulting
from an act or omission of its employee where the employee is not liable.” 745 ILCS 10/2-109
12 (West 2016). Section 2-201 of the Tort Immunity Act provides, “[e]xcept 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 injury resulting from his act or omission in determining
policy when acting in the exercise of such discretion even though abused.” 745 ILCS 10/2-201
(West 2016). Taken together, sections 2-109 and 2-201 of the Tort Immunity Act shield a
municipality from liability for discretionary acts or omission by its employees. Andrews, 2019 IL
124283, ¶ 26. Discretionary immunity for public officials stems from the idea that public
officials should be allowed to exercise their judgment in making decisions without fear that a
good-faith mistake might subject them to liability. Id.
¶ 27 A local public entity is entitled to immunity for the discretionary acts of its employee
pursuant section 2-201 of the Tort Immunity Act if: “(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.” (Emphases in
original). Id. ¶ 27. Policy determinations are decisions that require the public entity or employee
to balance competing interests and make a judgment call as to what solutions will best serve each
interest. Id. ¶ 28. Such competing interests may include safety, convenience, and cost. Id.
Discretionary acts are those acts that involve the exercise of personal deliberation and judgment
when deciding whether a particular act should be performed or in deciding how and in what
manner that act should be performed. Id.
¶ 28 In contrast, the negligent performance of ministerial tasks is not protected by immunity
under the Tort Immunity Act. Monson v. City of Danville, 2018 IL 122486, ¶ 30. While a
discretionary act requires the exercise of judgment, ministerial acts are performed in a prescribed
13 manner, in obedience to the mandate of legal authority, without regard to an official’s exercise of
discretion as to the propriety of the acts being done. Id. A municipality exercises its discretion
when selecting and adopting a plan to make public improvements but, in general, will act
ministerially in carrying out the plan and is bound to see that the work is done in a reasonably
safe and skillful manner. In re Chicago Flood Litigation, 176 Ill. 2d 179, 194 (1997).
¶ 29 Determining whether an injury resulted from a discretionary act or omission should be
determined based on the particular facts and circumstances of each case. Andrews, 2019 IL
124283, ¶ 28. The governmental entity claiming immunity under the Tort Immunity Act as an
affirmative defense bears the burden of properly raising and proving the immunity. Van Meter v.
Darien Park District, 207 Ill. 2d 359, 370 (2003). The entity claiming immunity must have
“made an actual decision with respect to the acts or omissions giving rise to the injuries.”
Andrews, 2019 IL 124283, ¶ 37. An “omission” in the context of section 2-201 must be
construed as “an affirmative decision to take no action” under the circumstances. Id.
¶ 30 Here, there is no dispute that Olson’s position involved the determination of policy or an
exercise of discretion. See 745 ILCS 10/2-109 (West 2016). However, the evidence indicates that
Olson exercised his discretion in determining that the section of the roadway at issue was to be
excavated, filled with gravel, and rolled in June in preparation for eventual paving in October.
He testified the area was alligatored and was lifting, which was a hazard. Additionally, defendant
had made a “conscious decision” to refrain from paving the graveled area and having that portion
of roadway remain open to traffic, until it could be paved a few months later when defendant’s
contractor did its annual paving work. Defendant’s “conscious decision” for the gravel section at
issue to remain unpaved until October was based on economic and safety reasons in that it was
more cost-effective to have multiple areas paved at the same time and the area at issue was safer
14 after it was prepared for eventual patching than it would have been if left in the original state of
disrepair. Thus, defendant’s conscious decision to prepare the area at issue for paving in June but
refrain from having the area paved until months later was an exercise of discretion. See Andrews,
¶ 34 (“a municipal defendant asserting immunity under section 2-201 must present evidence of a
‘conscious decision’ by its employee pertaining to the conduct alleged to have caused the
plaintiff's injuries”). Additionally, defendant’s contemplation of, and determination regarding,
the Village’s funds and resources demonstrates defendant engaged in a policy determination. See
Doyle, 2018 IL App (1st) 170357, ¶ 45 (“deciding how best to spend limited resources is a policy
determination”). Because defendant was immune from liability, we need not address plaintiff’s
additional arguments.
¶ 31 We acknowledge plaintiff’s argument that the Public Works Department’s roadcrew
employees adhered to a “set process” in preparing the area at issue for eventual paving and, thus,
the performance of that work was ministerial rather than discretionary. We agree that no
evidence was presented indicating the roadcrew had any discretion when performing that work,
and it was defendant’s burden to prove discretionary immunity regarding that “set process”
(excavating the area, filling the area in with gravel, and rolling it to compact the area). See Van
Meter, 207 Ill. 2d at 370 (2003); cf. Wrobel v. City of Chicago, 318 Ill. App. 3d 390, 396 (2000)
(finding the acts complained of by plaintiff were not ministerial where workers had discretion in
determining how much asphalt and moisture to remove from the pothole and the amount
removed was left to “the personal judgment of the workers”). Nonetheless, regardless of whether
the actions of defendant’s roadcrew in preforming that “set process” were discretionary or
ministerial, there was no indication the work had not been completed in a reasonably safe and
skillful manner. See Chicago Flood, 176 Ill. 2d at 194; Wrobel, 318 Ill. App. 3d at 397 (although
15 plaintiffs, as nonmovants, were not required to prove their case at the summary judgment stage,
they had a burden to present some factual basis that would arguably entitle them to a judgment).
Even considering the referenced photographs of the area at issue (taken days after the accident),
there was no evidence that the excavated/gravel area was “significantly below” street grade at the
time of the accident, as plaintiff contended. Also, plaintiff could not recall anything that
happened in the hours leading up to or at the time of the accident, including where she was
looking at the time of the crash. Even Carlton, the sole eyewitness, testified that she did not
know what had caused plaintiff to crash. Additionally, Olson had testified that the gravel area at
issue did not consist of loose gravel and, instead, had been compacted and was just as hard as the
surrounding pavement, with it being safe for a motorcyclist to drive over. Thus, there was no
indication that the area at issue was not reasonably safe at the time of plaintiff’s motorcycle
crash. See In re Estate of Frakes, 2020 IL App (3d) 180649, ¶ 16 (“[u]nsupported conclusions,
opinions, or speculation are insufficient to raise a genuine issue of material fact”).
¶ 32 Consequently, defendant was entitled to discretionary immunity from liability pursuant to
the Tort Immunity Act. See 745 ILCS 10/2-109, 2-201 (West 2016). We, therefore, affirm the
trial court’s grant of defendant’s motion for summary judgment.
¶ 33 III. CONCLUSION
¶ 34 The judgment of the circuit court of Grundy County is affirmed.
¶ 35 Affirmed.