The Implications of Andrews on the Landscape of the Tort Immunity Act
Sep 2, 2025
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When faced with litigation, Illinois school districts and municipalities, i.e. governmental entities, rely heavily on the Local Governmental and Governmental Employees Tort Immunity Act (“Tort Immunity Act”). There are numerous sections within the Tort Immunity Act that provide significant protections; however, the most prominent and effective sections of the Tort Immunity Act are Sections 2-109 and 2-201. They provide as follows:
“A local public entity is not liable for an injury resulting from an act or omission of its employees where the employee is not liable.” 745 ILCS 10/2-109 (West 2012).
“Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or 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 2012).
Simply put, when read together, these sections shield a governmental entity from liability for discretionary acts or omissions of its employees. Significantly, Section 2-201 provides absolute immunity for both negligence and willful and wanton conduct. The broad discretionary immunity provided by Sections 2-109 and 2-201 is “premised upon the idea that public officials should be allowed to exercise their judgment in rendering decisions without fear that a good-faith mistake might subject them to liability.” Harrison v. Hardin County Community Unit School District No. 1, 197 Ill. 2d 466, 472 (2001).
Although the landscape surrounding the Tort Immunity Act has been rather consistent since its inception, the Illinois Supreme Court has issued decisions that have chipped away at the protections afforded under 2-109 and 2-201. One such case went to great lengths to limit the broad immunity provided by Section 2-201. In Andrews v. Metropolitan Water Reclamation District of Greater Chicago, 2019 IL 124283 (Dec. 19, 2019), the Illinois Supreme Court was faced with determining whether Sections 2-109 and 2-201 of the Tort Immunity Act immunized a water reclamation district from liability for injuries sustained by an employee of the contractor. The case centered on a job-made ladder which was composed of two ladders leaning against each other, that the contractor’s employees had to maneuver down in order to get inside a chamber they were working in. As plaintiff, an employee of the contractor, was maneuvering the job-made ladder, he fell over 30 feet and suffered extensive injuries. The water reclamation district claimed that they were immunized from liability for plaintiff’s injury because its employees made discretionary or policy decisions with respect to the job-made, two ladder configuration that resulted in plaintiff’s injuries.
On appeal, the Illinois Supreme Court determined that the water reclamation district was not immunized under Sections 2-109 and 2-201 of the TIA because there was no evidence that any safety decisions were made by its employees. Specifically, the Court stated that an employee’s act or omission will be deemed discretionary where the employee has exercised “personal deliberation and judgment in deciding whether to perform a particular act, or how and in what manner the act should be performed.” The Court’s decision hinged on the fact that there was no evidence supporting the water reclamation district’s, through its employees, decision to use the job-made ladder to transition down the chamber. The Tort Immunity Act does not justify immunity for the making of no decision, in fact for Sections 2-109 and 2-201 to apply, the government entity or its employee must have engaged in actual decision making.
The Andrews holding takes the application of Sections 2-109 and 2-201, as we once knew them, one step further. Now, not only must governmental employees prove that their employee engaged in both the determination of policy and the exercising of discretion when performing the act or omission which resulted in the plaintiff’s injury, but they must also provide evidence that they made the conscious decision to either do or not do the act or omission. This imposes a higher burden on governmental entities. As some may know, the first stage of litigation focuses on the pleadings, i.e. plaintiff’s complaint. Typically, the governmental entities will put forth a Motion to Dismiss, arguing that plaintiff’s complaint is insufficient on its face and that another matter voids the legal effect of plaintiff’s claims. Here that other matter would be the applicable sections of the Tort Immunity Act, likely to include Sections 2-109 and 2-201. Because of the Andrews holding, some judges may require that additional evidence or affidavits are attached to the Motion to Dismiss showing that the governmental employee that engaged in the determination of policy and the exercising of discretion made a conscious decision to do or not do the act that led to Plaintiff’s injury. Simply put, this holding opens the door for discovery, typically the stage that follows the pleading stage, to take place prior to determining the sufficiency of the pleadings, ultimately inflicting a much higher burden on the governmental entity to be afforded immunity by the Tort Immunity Act. It has the potential to delay an already lengthy process to find resolution and could potentially paralyze cases in a holding pattern of pre-suit discovery.
