When are Illinois Local Governments Liable for Improper Repairs?

Local government units, like municipalities, are protected from liability for tortious conduct under Illinois’ Local Government and Governmental Employees Tort Immunity Act. In general, an Illinois city or county cannot be held liable for acts considered discretionary government functions like the formation of policy and plans. However, local governments may be held liable for negligently performed acts of repair. This is because once a local government has decided to plan for the repair and crafted the plan—both discretionary government functions—the only thing left for the city or county to do is to carry out the plan in a safe and skillful way. The recent Illinois appellate court opinion of Robinson v. Washington Twp., 2012 IL App (3d) 110177 (3d Dist. Aug. 29, 2012) illustrates this general rule but it also highlights the problems that may befall a plaintiff when pursuing a local government for poorly performed repairs of government property.

In Robinson, the plaintiff was injured in a vehicle accident that he contended was caused by the defendant’s improperly performed road repairs and leaving of debris and construction materials in the roadway. The plaintiff took care to allege that the defendant first started repairs prior to performing the specific acts of negligence. The trial court dismissed the case but the appellate court concluded that the defendant’s acts of repair were the implementation of its maintenance and repair plans to which liability could attach. 

The decision in Robinson distances itself from the proposition that minute tasks­­—like a worker’s deciding how deep to dig or how much soil to remove from a hole—involve discretion may immunize a local government from liability; however, it suggested that such tasks could be immune from liability depending on the facts presented to the court. The Robinson court cited a case where a municipality succeeded in characterizing a construction supervisor’s decision over how much water and debris to remove from a roadway pothole before patching it was a discretionary government function. As such, the municipality in that case was not liable for the plaintiff’s injuries. The Robinson court suggested that a line exists between discretionary and actionable decisions of government employees but declined to describe where that line falls.  

The Robinson opinion highlights the need for artful pleading and framing of issues in pursuing subrogation against an Illinois local governmental unit, namely, ensuring that the acts of negligence occur in the implementation or performance of a government repair plan.   The opinion also warns plaintiffs that Illinois courts are still free to examine the most minute of tasks to determine whether government employee conduct is actionable which may diminish the chances of recovery.

Expert Opinions in Wisconsin--What Has Changed?

The Wisconsin legislature enacted a comprehensive tort reform package in early 2011. Part of the legislation changed Wisconsin’s evidence rules governing the admissibility of witness testimony on scientific, technical or specialized subjects. Wisconsin law now aligns with federal standards, which means that Wisconsin practitioners will have to identify any expert opinions they may need in a particular case and ensure that a suitable witness has been selected to render that opinion.

Under the old rules, a witness could offer an expert opinion as long as the judge determined that the witness was an expert in a particular field based on the person’s knowledge, skills, experience, training, or education. The old rule allowed lay witnesses with extensive practical work experience to testify about scientific, technical or specialized subjects. This meant that such a witness did not need degrees or certifications to qualify as an expert witness, and the testimony need only be relevant to be presented to a jury.

The new rules subject the bases for expert opinions to greater scrutiny. In addition to determining whether a witness is qualified to give an opinion on technical matters, a judge must now determine whether the expert’s testimony is based on sound data and methods. This evaluation also entails an assessment of whether the witness’s opinion is based on adequate facts and that the facts were properly used in forming the opinion. Under the new rule, it is important that a witness have the ability to articulate the principles underlying her opinion and the process she went through in forming her opinion.

These new requirements may lead some recovery practitioners to more closely scrutinize a potential witness’s educational background. Most importantly, when an expert opinion is needed, one must now be certain that the expert can state and explain the principles, facts and methods behind the opinion.