concurring in part and dissenting in part:
I dissent from two of the holdings in the majority opinion. For the reasons more fully stated in my dissenting opinion in Barnett v. Zion Park District, 171 Ill. 2d 378, 399 (McMorrow, J., dissenting) and because I do not believe that the legislature intended to immunize willful and wanton misconduct, I dissent from the majority’s holding that willful and wanton misconduct is shielded by the immunity contained in section 2 — 201 of the Tort Immunity Act. Additionally, I dissent from the majority’s holding that the discretionary immunity doctrine insulates the City, as a matter of law, from liability for failing to repair the tunnel damage upon notice of the breach and for failing to warn plaintiffs of the risks of harm resulting from the breach. I briefly address each point in turn.
The majority’s disposition of the willful and wanton counts in the complaint is premised on the reasoning that tortious conduct of a willful and wanton nature is immunized by a particular provision of the Tort Immunity Act whenever such conduct is not expressly excluded from the immunity provision in issue. As I noted in my dissent in Barnett, the rationale underlying a grant of immunity for simple negligence is different in kind from any justification for immunizing tortious conduct that is intentionally harmful or willful and wanton. This critical distinction has long been noted in Illinois decisions. See, e.g., McCormick v. Burt, 95 Ill. 263, 266 (1880) (recognizing immunity for good-faith errors in public official’s discretionary judgment, where no allegations were made that official acted "either wantonly or maliciously” (emphasis added)); accord Barth v. Board of Education, 141 Ill. App. 3d 266, 273-74 (1986). Today, the majority expressly overrules Barth and other cases which hold that section 2 — 201 of the Tort Immunity Act does not immunize willful and wanton misconduct. I do not join in this ruling.
I further note that the decision upon which the majority relies for much of its explanation of the discretionary immunity doctrine, City of Chicago v. Seben, 165 Ill. 371 (1897), stated, "Municipal corporations will not be held liable in damages for the manner in which they exercise, in good faith, their discretionary powers of a public, or legislative, or quasi judicial character.” (Emphasis added.) Seben, 165 Ill. at 377-78, quoted in 176 Ill. 2d at 194. As the Seben court implicitly recognized in the above passage, good faith is a component of discretionary immunity. Good faith is incompatible with willful and wanton misconduct.
My second point of departure from the majority opinion involves the application of discretionary immunity to those counts of the complaint alleging that the City breached its duty to repair the tunnel damage upon notice of the breach and to warn class plaintiffs of the harm presented by the breach. The trial court denied the City’s motion to dismiss those counts of the complaint, and the appellate court affirmed the denial of that motion to dismiss. In reversing the appellate court on this issue, the majority concludes that the City is entitled to what is, in effect, unlimited immunity under the discretionary immunity doctrine. The majority explains that plaintiffs are barred from proceeding on the counts based on the City’s failure to repair and failure to warn because the plaintiffs "do not allege that there was any prescribed method for how to repair the tunnel and how quickly, or how to warn class plaintiffs of the tunnel breach. Thus, the City’s actions cannot be considered ministerial. See Seben, 165 Ill. at 378.” (Emphasis added.) 176 Ill. 2d at 196-97.
It would appear from the above holding that the majority bases the City’s discretionary immunity upon the failure of plaintiffs to plead specified methods, rules, or policies governing repairs and warnings. This suggests that such methods, rules, or policies actually exist, or that the existence of preformulated "rules of repair” or warning procedures is essential to stating a cause of action for failure to repair and warn. No authority is cited for this novel interpretation of the discretionary immunity doctrine, except for Seben. However, Seben does not hold that a municipality’s inaction or failure to repair a known potentially dangerous condition is immunized if there are no set policies or rules in place for directing the specific repair. Indeed, it is curious that the majority does not acknowledge that the Seben court’s analysis actually favors a finding that the acts or omissions in the case at bar were ministerial rather than discretionary. The Seben court affirmed a verdict in favor of an injured plaintiff despite the City’s attempt to characterize its acts or omissions in connection with an open and uncovered catch basin as discretionary and therefore immune. The court noted, "A municipal corporation acting in good faith is not liable for any error of judgment in constructing a system of drainage. *** The adoption of a general plan of sewerage involves the performance of a duty of a quasi judicial character, but the construction and regulation of sewers and the keeping of them in repair, *** are ministerial duties, and the municipality, which constructs and owns such sewers, is liable for the negligent performance of such duties.” (Emphasis added.) Seben, 165 Ill. at 378-79. It would appear, therefore, that the reasoning and result in Seben require the opposite holding from the one reached by the majority on the issue of failure to repair.
In justifying the City’s failure to warn as a discretionary decision cloaked with immunity, the majority states that the City "had to decide whether warning the public would cause panic and, if so, whether that warning was justified.” 176 Ill. 2d at 197. I cannot join in this reasoning insofar as it implies that the legal standard for deciding whether failure to warn of a known danger is immunized as a matter of law is whether such a warning might cause panic.
I note also that the burden of establishing entitlement to immunity, as an affirmative defense, is on the City. The Tort Immunity Act contains no express immunity for failing to repair a known hazardous condition on City property or for failing to warn affected individuals of the risks of harm. As the majority acknowledges in its opinion, private entities and public entities are equally liable in tort, except as the legislature expressly provides through the passage of express immunity statutes. Because I am not persuaded that the discretionary immunity doctrine insulates the City from liability for failure to repair the tunnel and warn potential victims that they lay in harm’s way, I do not join the majority’s decision to grant the City immunity as a matter of law on this issue.
For the reasons stated, I dissent in part from the opinion of the majority.