dissenting:
The majority opinion correctly notes that the Local Governmental and Governmental Employees Tort Immunity Act (Immunity Act) grants immunity to public entities for the performance of discretionary functions (745 ILCS 10/2 — 109, 2 — 201 (West 1992)). I believe, however, that the majority seriously errs in determining that the act in question here was not a discretionary function. Accordingly, I dissent.
Analysis reveals that the highway commissioner’s decision where to place the reverse turn sign cannot properly be characterized as ministerial in this case. This court described the nature of a "traffic plannerfs]” job in West v. Kirkham (1992), 147 Ill. 2d 1. There, in discussing the expressed purpose of the Immunity Act, we stated:
"The 'operation of government’ necessarily encompasses the policy decisions made by a municipality; that is, those decisions which require the municipality to balance competing interests and to make a judgment call as to what solution will best serve each of those interests. The decision whether to install a traffic signal requires the municipal traffic planner to balance a host of competing interests, among them, safety, convenience and cost. In the instant case, the City could have determined that the competing interests were best served by installing a left turn arrow for northbound traffic on Lincoln Avenue, but not for southbound traffic on Lincoln Avenue. The fact that Bradley Avenue is unpaved on the east side of Lincoln Avenue may have resulted in the conclusion that left turns onto eastbound Bradley Avenue would be too infrequent to justify the expenditure of tax dollars for a left turn arrow. Regardless, this is not the sort of decision that should be second-guessed by the courts. Were such second-guessing permitted, the traffic planner would be more concerned with avoiding possible litigation than with using his best judgment to properly balance the competing interests.” (West, 147 Ill. 2d at 11-12.)
This language accurately portrays a traffic planner’s function in our complex society. The traffic planner does not "perform on a given state of facts in a prescribed manner,” as the majority opinion would have us believe. Rather, the traffic planner is continually making judgment calls as to what solution will balance and best serve the many competing interests, including safety, convenience, and cost.
In the present case, the township’s highway commissioner could have determined that the competing interests were best served by purchasing a single sign for installation at the curve on Route 7 South. The commissioner then made a judgment call as to the best placement for the sign. The record shows that he placed the reverse turn sign between 67 and 120 feet before the curve on the left side of the road, next to the driver’s eye. The commissioner testified that he believed this to be the most obvious place for the driver to see the sign. Parenthetically, the majority opinion emphasizes the commissioner’s testimony that the curve was dangerous. His specific trial testimony, however, was that the curve may be dangerous to a driver who is inattentive. Regardless, as in West, this is not the type of decision that should be second-guessed by the courts. The commissioner’s decision to place the reverse turn sign where he did required an exercise of official judgment. Therefore, it was a discretionary function, entitled to immunity. See Greeson v. Mackinaw Township (1990), 207 Ill. App. 3d 193, 202 (holding that, apart from any traffic manual, a highway commissioner’s decision to place an S-curve warning sign precisely where he did required the exercise of judgment and was thus a discretionary function).
Assuming, arguendo, that this case turns on an interpretation of language in the Illinois Manual on Uniform Traffic Control Devices (92 Ill. Adm. Code § 546.100 et seq. (Supp. 1986)), the majority’s conclusion that the commissioner’s sign placement was a ministerial function under that manual is nonetheless incorrect. The Illinois Manual itself plainly states which provisions are mandatory and which are not. Section 1A — 5, entitled "Meanings of 'Shall,’ 'Should’ and 'May’ ” provides:
"1A — 5 Meanings of 'Shall,’ 'Should’ and 'May’
In the Manual sections dealing with the design and application of traffic control devices, the words 'shall,’ 'should’ and 'may’ are used to describe certain specific conditions concerning these devices. To clarify the meanings intended in this Manual by the use of these words, the following definitions apply:
1. SHALL — a mandatory condition. Where certain requirements in the design or application of the device are described with the 'shall’ stipulation, it is mandatory when an installation is made that these requirements be met.
2. SHOULD — an advisory condition. Where the word 'should’ is used, it is considered to be advisable usage, recommended but not mandatory.
3. MAY — a permissive condition. No requirement for design or application is intended.” (Emphasis in original.) (Illinois Manual § 1Á — 5.)
This section leaves no doubt that only where the Illinois Manual utilizes the word "shall” are public officials arguably performing ministerial duties. In all other cases, public officials are fully expected to make a judgment call in determining whether to apply the Illinois Manual’s advice to the particular road conditions involved. This requires the public official to exercise discretion, as discussed above.
The provisions of the Illinois Manual relevant to this case are not "shall” sections. Plaintiffs’ expert traffic engineer opined that the reverse turn sign should have been placed on the right-hand shoulder; however, he admitted that the Illinois Manual provides guidelines only and did not mandate such a placement. Section 2A — 21, the controlling provision, states:
"2A — 21. Standardization of Location
Standardization of position cannot always be attained in practice; however, the general rule is to locate signs on the right-hand side of the roadway, where the driver is looking for them. On wide expressways, or where some degree of lane-use control is desirable, or where space is not available at the roadside, overhead signs are often necessary. Signs in any other locations ordinarily should be considered only as supplementary to signs in the normal locations. Under some circumstances signs may be placed on channelizing islands or (as on sharp curves to the right) on the left-hand shoulder of the road, directly in front of approaching vehicles. A supplementary sign located on the left of the roadway is often helpful on a multi-lane road where traffic in the right-hand lane may obstruct the view to the right.” (Emphasis added.) (Illinois Manual § 2A— 21.)
A review of this section’s plain language reveals that there is no "shall” provision directing that the sign in question be placed on the right-hand side of the road. Rather, locating signs on the right-hand shoulder is just "ordinarily,” "the general rule” and, "[ujnder some circumstances[,] signs may be placed *** on the left-hand shoulder of the road, directly in front of approaching vehicles.” This section further explains why this "general rule” is not mandatory: "Standardization of position cannot always be attained in practice.” Consequently, I agree with the appellate court that section 2A — 21 does not mandate precise sign placement. In fact, by setting forth indefinite guidelines, section 2A — 21 acknowledges that traffic planners must analyze road conditions and make a judgment call each time a traffic sign is installed. Therefore, the sign placement at issue here was a discretionary function even in light of the applicable provisions of the Illinois Manual. See Francis v. Mills (1991), 214 Ill. App. 3d 122, 125 (holding that the decision of township employees not to replace or upgrade an existing traffic control device was a discretionary function because the applicable manual did not mandate a certain course of conduct).
The majority, in an attempt to bolster its conclusion that the sign placement was ministerial, further notes another so-called example "of the defendant’s noncompliance with the Illinois Manual.” (167 Ill. 2d at 471.) The majority then discusses section 2C — 3 of the Illinois Manual. The majority neglects to point out that this section is not mandatory, a point which even plaintiffs’ expert conceded at trial. Section 2C — 3 lists "suggested minimum sign placement distances” (Illinois Manual § 2C — 3) and is thus merely recommended usage. Therefore, this section does not support the majority’s conclusion. Section 11 — 304 of the Illinois Vehicle Code (625 ILCS 5/11 — 304 (West 1992)) is also irrelevant to the majority’s conclusion because the majority declines to address whether it applied to the sign placement in question. See 167 Ill. 2d at 472.
Lastly, the majority implies that to countenance the township’s interpretation of the Illinois Manual would be absurd because a government official would be immunized for "plac[ing] a traffic control device upside down, behind a tree, or anywhere else he chooses.” (167 Ill. 2d at 472.) This suggestion, with its exaggerated scenarios, flies in the face of the Immunity Act. The Immunity Act expressly grants immunity to public entities and officials for the performance of discretionary functions, even if negligent. (745 ILCS 10/2 — 109, 2 — 201 (West 1992).) Accordingly, the proper analysis here focuses simply on whether the Immunity Act’s grant of discretionary immunity applies in this case. It is not for this court to rewrite the Immunity Act and replace its judgment for that of the General Assembly’s.
In conclusion, I would affirm the appellate court and hold that the commissioner’s placement of the sign was a discretionary function. Under the Immunity Act, both he and the township are provided immunity from tort liability for his performance of this discretionary function, even if negligent.