Legal Rule
Illinois’s discretionary immunity rules are found in sections 2‑109 and 2‑201 of the Tort Immunity Act. Together, these provisions protect local governments and their employees from liability for policy decisions and discretionary judgments made in good faith. In short, a public employee—and by extension the public body—is not liable for injuries that result from discretionary decisions made performing their official duties.
The Conscious Decision Standard
For discretionary immunity under the Act to apply, a local government must present evidence that it made a conscious decision with respect to the acts or omissions alleged in the complaint. This requirement ensures that public officials’ good faith policy determinations or exercises of discretion are protected. It encourages the exercise of judgment and decision-making without fear that such decisions might subject public officials or the municipality to liability.
Recent appellate court decisions have reiterated that awareness of a potentially defective condition is a threshold issue in determining whether a public official made a conscious decision. After all, no one can make a conscious decision about an alleged defective condition without first knowing the condition exists.
Importantly, Illinois courts have held that a local government’s failure to demonstrate such awareness prevents discretionary immunity under the Act.[1] With this in mind, a public body should employ the practices outlined below to document the conditions of its properties and any decisions made concerning those conditions. That allows it to claim the protections of discretionary immunity if it’s later accused of failing to fix the condition.
Practical Guidance for Local Public Entities
Establish formal inspection procedures. The resulting documentation may demonstrate awareness of the potentially defective condition, a critical element in proving discretionary immunity.[2]
Document specific potentially defective conditions. Identify and document specific potentially defective conditions in written inspection reports.[3]
Evaluate those potentially defective conditions. Record qualitative and/or quantitative data about the conditions so there is some basis upon which a decision could logically be made. The recorded data doesn’t need to be sophisticated or produced in a labor-intensive manner.[4]
Document the deliberative processes. Record the decision-making processes, including factors considered and the ultimate decisions made. Evidence of balancing competing interests (e.g., budgetary constraints, allocation of resources, and public safety) strengthens a claim of discretionary immunity.[5]
[1] In Andrews v. Water Reclamation District of Greater Chicago, 160 N.E.3d 895 (Ill. 2019). the water district’s clear lack of awareness of the condition involved in the accident proved fatal to its claim of discretionary immunity under the Act.
[2] In Goudanis v. Village of Hillsdale, 2025 IL App (1st) 242300-U, the presence of inspection records demonstrated that the municipality was aware of the defective condition when it exercised its authority.
[3] In Monson v. City of Danville, 115 N.E.3d 81 (Ill. 2018), a case involving a sidewalk injury similar to the injury in Goudanis, the city had conducted an evaluation of the sidewalks in the downtown area, but did not note the sidewalk deviation in question. The court noted that the City may have simply overlooked the deviation and therefore denied discretionary immunity under the Act. In Monson, the city’s director of public works testified that he believed the City looked at the particular concrete slabs at issue, but he conceded that he could not remember inspecting the specific slabs or making a decision not to repair the slabs. In contrast, the public official in Goudanis documented 21 specific slabs in the area at issue that he thought needed replacement. [See also Williams v. Village of Berkeley, 2024 IL App (1st) 231481. (The village was denied immunity when a public official inspected a tree and declared it to be healthy, lacking awareness of the rot in the tree which later caused the limb to break, injuring plaintiff.)]
[4] In Goudanis, the city was granted immunity based on the public works’ director’s testimony that although he thought the sidewalk at issue needed replacement, he determined it was not “overly hazardous.” For contrast, he testified that he repaired other sidewalks which he had evaluated as “obviously dangerous.”
[5] Again, the record of the deliberative process need not be overly sophisticated or involve highly formalized cost-benefit analysis. In Goudanis, immunity was granted on the basis of a record that contrasted the public works director’s observations and opinions about the sidewalk with the operational reality that the city’s annual budget was only $2 million.