{ "id": 5767729, "name": "ELIZABETH GUTSTEIN, Plaintiff-Appellee, v. THE CITY OF EVANSTON, Defendant-Appellant", "name_abbreviation": "Gutstein v. City of Evanston", "decision_date": "2010-06-04", "docket_number": "No. 1\u201408\u20143607", "first_page": "610", "last_page": "629", "citations": [ { "type": "official", "cite": "402 Ill. App. 3d 610" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "145 Ill. 2d 273", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596413 ], "year": 1991, "pin_cites": [ { "page": "278" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0273-01" ] }, { "cite": "43 Ill. 2d 177", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2842395 ], "year": 1969, "pin_cites": [ { "page": "180-81" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/43/0177-01" ] }, { "cite": "224 Ill. 2d 213", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3607095 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/ill-2d/224/0213-01" ] }, { "cite": "198 Ill. 2d 475", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 29959 ], "year": 2002, "pin_cites": [ { "page": "487", "parenthetical": "school district decided not to provide roller blading safety equipment for a high school physical education class" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/198/0475-01" ] }, { "cite": "301 Ill. App. 3d 798", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 257179 ], "year": 1998, "pin_cites": [ { "page": "809", "parenthetical": "finding that a tumbling coach's decisions not to ensure adequate placement of safety mats and not to warn of the dangers inherent in using a mini trampoline involved determinations of policy and exercises of discretion" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/301/0798-01" ] }, { "cite": "318 Ill. App. 3d 390", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 279509 ], "weight": 6, "year": 2000, "pin_cites": [ { "page": "395", "parenthetical": "finding that laborers' decisions concerning how to fill potholes involved a determination of policy and an exercise of discretion" }, { "page": "395" }, { "page": "391" }, { "page": "395" }, { "page": "395" }, { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/318/0390-01" ] }, { "cite": "333 Ill. App. 3d 86", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 487104 ], "year": 2002, "pin_cites": [ { "page": "91", "parenthetical": "finding that a shop teacher's decision to remove the safety shield from a saw involved a determination of policy and an exercise of discretion" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/333/0086-01" ] }, { "cite": "343 Ill. App. 3d 49", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3718728 ], "year": 2003, "pin_cites": [ { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/343/0049-01" ] }, { "cite": "165 Ill. 371", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3103367 ], "year": 1897, "pin_cites": [ { "page": "377-78" } ], "opinion_index": 0, "case_paths": [ "/ill/165/0371-01" ] }, { "cite": "176 Ill. 2d 179", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544917 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "194" }, { "page": "194" }, { "page": "195", "parenthetical": "City of Chicago retained discretion to change location of bridge pilings" }, { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0179-01" ] }, { "cite": "405 Ill. 460", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2627336 ], "year": 1950, "pin_cites": [ { "page": "466" } ], "opinion_index": 0, "case_paths": [ "/ill/405/0460-01" ] }, { "cite": "73 Ill. 2d 100", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5441500 ], "weight": 4, "year": 1978, "pin_cites": [ { "page": "108" }, { "page": "108" }, { "page": "108" }, { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/73/0100-01" ] }, { "cite": "167 Ill. 2d 446", "category": "reporters:state", "reporter": "Ill. 2d", "weight": 4, "year": 1995, "pin_cites": [ { "page": "474" }, { "page": "474-75" }, { "page": "474-75" }, { "page": "474-75" } ], "opinion_index": 0 }, { "cite": "147 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3278377 ], "year": 1992, "pin_cites": [ { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/147/0001-01" ] }, { "cite": "317 Ill. App. 3d 1104", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1026019 ], "weight": 4, "year": 2000, "pin_cites": [ { "page": "1113" }, { "page": "1117" }, { "page": "1117" }, { "page": "1117" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/1104-01" ] }, { "cite": "181 Ill. 2d 335", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821401 ], "weight": 10, "year": 1998, "pin_cites": [ { "page": "341" }, { "page": "341" }, { "page": "341" }, { "page": "342" }, { "page": "342", "parenthetical": "fire marshal planned and executed a fire drill in a downtown high-rise" }, { "page": "338" }, { "page": "338" }, { "page": "338" }, { "page": "343" }, { "page": "343" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0335-01" ] }, { "cite": "207 Ill. 2d 359", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 975002 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "370" }, { "page": "392", "parenthetical": "Garman, J., dissenting, joined by Fitzgerald, J." }, { "page": "370" }, { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/207/0359-01" ] }, { "cite": "307 Ill. App. 3d 840", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 173591 ], "weight": 10, "year": 1999, "pin_cites": [ { "page": "842" }, { "page": "842" }, { "page": "842" }, { "page": "842" }, { "page": "845" }, { "page": "845" }, { "page": "845" }, { "page": "845" }, { "page": "845" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/307/0840-01" ] }, { "cite": "305 Ill. App. 3d 536", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1208033 ], "weight": 5, "year": 1999, "pin_cites": [ { "page": "539" }, { "page": "539" }, { "page": "539" }, { "page": "544" }, { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/305/0536-01" ] }, { "cite": "308 Ill. App. 3d 618", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 261415 ], "year": 1999, "pin_cites": [ { "page": "624", "parenthetical": "a delivery person who violated a city ordinance when stopping his delivery truck in an alley could not be an intended user of the alley" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/308/0618-01" ] }, { "cite": "148 Ill. 2d 417", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3283128 ], "year": 1992, "pin_cites": [ { "page": "426", "parenthetical": "finding that plaintiff who crossed a six-lane country highway outside of a crosswalk in order to reach his parked car was not an intended user of the roadway" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/148/0417-01" ] }, { "cite": "171 Ill. App. 3d 293", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3617685 ], "year": 1988, "pin_cites": [ { "page": "295-96" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/171/0293-01" ] }, { "cite": "218 Ill. App. 3d 89", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498299 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "94" }, { "page": "94", "parenthetical": "finding that where a municipality permits parallel parking on a roadway, it intends that drivers of the vehicle will use the roadway in order to enter and exit the vehicle" }, { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/218/0089-01" ] }, { "cite": "283 Ill. App. 3d 161", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182788 ], "weight": 5, "year": 1996, "pin_cites": [ { "page": "163-64" }, { "page": "162" }, { "page": "164" }, { "page": "164" }, { "page": "162-63" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/0161-01" ] }, { "cite": "167 Ill. 2d 343", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 222737 ], "weight": 8, "year": 1995, "pin_cites": [ { "page": "351" }, { "page": "351" }, { "page": "351-52", "parenthetical": "finding that plaintiff was not an intended user of a country roadway with no marked parking spaces, walkways, or crosswalks" }, { "page": "352" }, { "page": "346" }, { "page": "352" }, { "page": "351-52" }, { "page": "474" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/167/0343-01" ] }, { "cite": "183 Ill. 2d 520", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209972 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "525" }, { "page": "528", "parenthetical": "finding that a lack of special pavement markings or other signs indicating that bicycles were intended users of a bridge precluded a finding that plaintiff was an intended user of the bridge" }, { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0520-01" ] }, { "cite": "143 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591296 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "6" }, { "page": "5" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0001-01" ] }, { "cite": "166 Ill. 2d 155", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198924 ], "weight": 5, "year": 1995, "pin_cites": [ { "page": "158" }, { "page": "158" }, { "page": "162-63" }, { "page": "161" }, { "page": "162-63" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0155-01" ] }, { "cite": "154 Ill. 2d 201", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820496 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "207" }, { "page": "208" }, { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0201-01" ] }, { "cite": "151 Ill. 2d 445", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3292317 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "452-53" }, { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0445-01" ] }, { "cite": "37 Ill. 2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866138 ], "year": 1967, "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0494-01" ] }, { "cite": "232 Ill. 2d 446", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3619295 ], "year": 2009, "pin_cites": [ { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/232/0446-01" ] }, { "cite": "234 Ill. 2d 446", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3623897 ], "year": 2009, "pin_cites": [ { "page": "463" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/234/0446-01" ] } ], "analysis": { "cardinality": 1575, "char_count": 51225, "ocr_confidence": 0.776, "pagerank": { "raw": 6.342335477892533e-08, "percentile": 0.3893348608355159 }, "sha256": "13c83749803076e0c342395219f4d2c69cd4ee033ef4ff0928dd26aa6d2bde7b", "simhash": "1:af37d08a53cc5477", "word_count": 8619 }, "last_updated": "2023-07-14T19:46:34.233681+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ELIZABETH GUTSTEIN, Plaintiff-Appellee, v. THE CITY OF EVANSTON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE ROBERT E. GORDON\ndelivered the opinion of the court:\nPlaintiff Elizabeth Gutstein filed suit in the circuit court of Cook County against the municipal defendant, the City of Evanston (City), alleging that she fell and suffered injuries to her elbow resulting from the municipality\u2019s negligent maintenance of an unimproved alley in back of plaintiffs home. A jury returned a verdict in favor of plaintiff in the amount of $201,829.00, less a 50% deduction for contributory negligence, and the trial court entered judgment on that verdict. The City appeals the trial court\u2019s denial of its timely filed posttrial motion. On appeal, the City argues that (1) plaintiff was not an intended user of the alley and thus the City is entitled to a judgment n.o.v., (2) the trial court abused its discretion in deciding that plaintiff was an intended user as a matter of law, and (3) the City was entitled to immunity from liability pursuant to section 2 \u2014 201 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2 \u2014 201 (West 2008)).\nBACKGROUND\nOn July 10, 2004, plaintiff pulled a weed from the backyard garden of her home in Evanston and decided to dispose of the unwanted plant in the yard waste disposal bin provided for her use by the City. Two unimproved alleys abut plaintiff\u2019s property. One alley runs north-south along the eastern edge of plaintiffs property and the other runs east-west along the southern edge of the property. Plaintiff\u2019s yard waste bin, along with disposal containers for recycling and trash, sit outside plaintiffs property along the east-west alley (alley). A gated fence encircles plaintiffs backyard, so plaintiff proceeded down a path through her backyard to the gate to enter the alley. When she reached the gate, plaintiff testified that she scanned the area to make sure there were no depressions or other impediments in the alley. Prior to stepping out into the alley, plaintiff heard an ice cream truck driving along the alley and turned to locate the vehicle. She then stepped out into the alley and tripped in a \u201csoftball-sized\u201d depression in the unimproved alley, causing her to fall and suffer injuries to her elbow.\nPlaintiffs partner, Patricia Butkus, testified at trial that she had been complaining to the City about the condition of the east-west alley for years. Ms. Butkus testified that she telephoned the City on numerous occasions and left voice-mail messages with the public works department. In March 2004, Ms. Butkus exchanged e-mail correspondence with city alderman Elizabeth Tisdahl, in which she complained that commercial traffic was damaging the alley and creating a dangerous condition in the vicinity of the gate to Ms. Butkus\u2019s and plaintiffs property. Ms. Butkus testified that Alderman Tisdahl visited the alley shortly thereafter and agreed that the area around the gate was in poor condition. Alderman Tisdahl assured Ms. Butkus that she would place the plaintiffs residence on the City\u2019s priority list for alley repairs and instructed Ms. Butkus to telephone the City to follow up and confirm that this was done.\nThe alley abutting plaintiff\u2019s property is what the City calls an \u201cunimproved alley,\u201d meaning that it is unpaved. There was some dispute at trial as to what material constituted the surface of the alley at the time of plaintiffs injury. Plaintiff argued that the alley surface consisted of limestone gravel while the City maintained that the alley had been resurfaced with asphalt chips. Both parties agree that the ravages of winter cause significant damage to the surface of an unimproved alley. In order to address this problem, the City had instituted a program of annually regrading its unimproved alleys.\nGlen Crabtree, a public works supervisor for the City, testified for the plaintiff as an adverse witness pursuant to section 2 \u2014 1102 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 1102 (West 2008)). Mr. Crabtree\u2019s duties included the care and maintenance of the City\u2019s alleys, streets, and sidewalks. As a supervisor, Mr. Crabtree reported to the superintendent of streets and sanitation, who reported to the director of public works, who in turn reported to the city manager. The city manager was responsible for determining the budget for public works, including the care and maintenance of the City\u2019s unimproved alleys. However, the city manager\u2019s determination still had to be approved by the city council.\nWhen asked about the governmental structure of the City, Mr. Crabtree stated that the City has a home rule form of government, in which the mayor and aldermen make the policy determinations. The various city departments, including the public works department, then implement and carry out those policies.\nAccording to Mr. Crabtree, the City did not maintain its unimproved alleys for pedestrian traffic; it maintained the alleys only for vehicular traffic. Mr. Crabtree testified that as soon as weather permitted in the spring, he would refit the City\u2019s snow removal equipment for grading and work with labor crews to regrade the City\u2019s unimproved alleys. He testified that it was his practice to make sure that the alley adjacent to plaintiffs property was regraded each year prior to the City\u2019s Fourth of July parade because of increased pedestrian traffic in the area for the festivities. However, Mr. Crabtree also testified that he did not keep records demonstrating the progress of the annual regrading program, nor did he have any independent recollection that the alley had been regraded prior to July 10, 2004.\nWhen a city resident calls to complain about the condition of an unimproved alley, Mr. Crabtree testified that he would typically go out to the site of the complaint within 48 hours of receiving the call. After examining the site, he would determine whether or not the area needed repair and, if it did, would place the location on his list of pending specific repairs. Only after the city-wide regrading program was complete would Mr. Crabtree perform specific repairs requested by residents. Mr. Crabtree testified that he did not have any record or independent recollection of Ms. Butkus\u2019s telephone calls and voice-mail messages complaining about the condition of the alley.\nPlaintiff and Ms. Butkus placed their garbage containers in the alley, as opposed to someplace on their property, because the containers had always been in the alley and that was where the neighbors placed their garbage containers. In addition, Ms. Butkus testified, \u201cthat\u2019s where the city trucks pick it up.\u201d Mr. Crabtree confirmed that the City would not pick up refuse, yard waste, or recycling from private property. Pursuant to City ordinance, residents must place their garbage containers on the curb or alley line for pickup. If a resident\u2019s property abuts an alley, then the resident must place his or her garbage containers in the alley. Only if a resident\u2019s property does not abut an alley may the resident place garbage containers on the street curb.\nAt trial, the City attempted to argue that plaintiff did not have to keep her garbage containers in the alley, that she instead could have placed the containers on a concrete pad next to her garage. However, in order to do that plaintiff would have had to pick up the large containers and place them over a fence. That would have been virtually impossible. When plaintiff and Ms. Butkus purchased the property in 2000, they performed several improvements on the property, including constructing a new two-car garage, erecting a fence around the backyard, pouring a concrete pad outside the fence next to the garage, and installing a walkway from the kitchen door to the fence gate to the alley. The City argued that had plaintiff placed her garbage containers on the concrete pad, she could have walked through her backyard, into the garage, and out a garage door to the concrete pad, thus avoiding the alley altogether. Plaintiff testified in response that it was far more convenient for her to take a direct route down her backyard path to the gate and out into the alley where the garbage containers were located and that, if she walked through her garage, she still would have had to walk in the alley.\nAfter plaintiff rested her case, the City filed a motion for directed verdict arguing that (1) plaintiff was not an intended user of the alley and therefore the City did not owe her a duty of ordinary care pursuant to section 3 \u2014 102 (745 ILCS 10/3 \u2014 102 (West 2008)), (2) the City had no notice of the alleged pothole or depression in the alley, and (3) the City was immune from liability pursuant to section 2 \u2014 201 (745 ILCS 10/2 \u2014 201 (West 2008)). The trial court denied the City\u2019s motion on all three issues. Speaking specifically to the first issue raised by defendant, the trial court stated: \u201cI think the plaintiff is an intended user.\u201d\nPlaintiff filed a motion for directed verdict after the City rested its case, arguing that (1) plaintiff was an intended user of the alley, (2) the City had notice of the condition of the alley prior to plaintiff\u2019s injury, and (3) the City failed to prove discretionary immunity pursuant to section 2 \u2014 201 (745 ILCS 10/2 \u2014 201 (West 2008)). When the trial court objected to the form of plaintiffs motion, instructing that a directed verdict is different from deciding an issue as a matter of law, plaintiff amended her motion for directed verdict to cover only the notice issue and moved to strike the City\u2019s affirmative defenses that plaintiff was not an intended user and that the City had discretionary immunity. The trial court struck the City\u2019s discretionary immunity defense because it found the City\u2019s alley maintenance program ministerial. However, at that time the trial court reserved the issue of whether plaintiff was an intended user of the alley for the jury to decide and denied plaintiffs motion for directed verdict.\nLater, when discussing the language to be used in the jury instructions, plaintiffs counsel argued that the jury should not decide the issue of whether plaintiff was an intended user of the alley. Plaintiffs counsel argued that the issue of intent was a component of the question whether the City owed plaintiff a duty of care, which was a matter of law and not a question of fact for the jury. The trial court agreed.\n\u201cTHE COURT: We are not going to have a determination by the jury whether this is intended, an intended user. I have determined that as a matter of law.\nDEFENSE COUNSEL: So as a matter of law she is an intended user despite Crabtree saying we don\u2019t maintain this for pedestrians?\nTHE COURT: We already ruled on that, yeah.\u201d\nAs noted, the jury returned a verdict in favor of plaintiff in the amount of $201,879, which it reduced by 50% for plaintiffs contributory negligence. The jury also answered two special interrogatories, which found that the City did have notice of the condition of the alley prior to plaintiffs injury. The trial court entered a judgment on the verdict in the amount of $100,939.50. The City then filed a posttrial motion requesting that the trial court grant the City either a judgment n.o.v. or a new trial. The trial court denied the City\u2019s motion.\nANALYSIS\nThe City raises three challenges to the trial court\u2019s denial of its request for posttrial relief. First, the City argues that the plaintiff was not an intended user of the municipal alley pursuant to section 3 \u2014 102(a) (745 ILCS 10/3 \u2014 102(a) (West 2008)) and that, therefore, the City is entitled to a judgment n.o.v. Second, the City argues that even if the trial court did not err in failing to grant the City a judgment n.o.v., the trial court abused its discretion in determining as a matter of law that plaintiff was an intended user of the alley. Finally, the City argues that the trial court improperly denied the City\u2019s motion for a directed verdict, arguing that the City had discretionary immunity pursuant to section 2 \u2014 201 (745 ILCS 10/2 \u2014 201 (West 2008)). All of the City\u2019s arguments involve questions of law, which we review de novo. Kouzoukas v. Retirement Board of the Policemen\u2019s Annuity & Benefit Fund, 234 Ill. 2d 446, 463 (2009); Addison Insurance Co. v. Fay, 232 Ill. 2d 446, 451 (2009).\n1. Was plaintiff an intended user of the alley?\nThe City first argues that the trial court erred by failing to grant a judgment n.o.v. in its favor because plaintiff was not an intended user of the alley. A judgment n.o.v. should only be granted where all of the evidence, when viewed in a light most favorable to the nonmoving party, so overwhelmingly favors the moving party that no contrary verdict could ever stand based on that evidence. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). We cannot \u201cusurp the function of the jury and substitute its judgment on questions of fact fairly submitted, tried, and determined from the evidence which did not greatly preponderate either way.\u201d Maple v. Gustafson, 151 Ill. 2d 445, 452-53 (1992). \u201cThe court has no right to enter a judgment n.o.v. if there is any evidence, together with reasonable inferences to be drawn therefrom, demonstrating a substantial factual dispute, or where the assessment of credibility of the witnesses or the determination regarding conflicting evidence is decisive to the outcome.\u201d Maple, 151 Ill. 2d at 454.\nIn order to maintain a cause of action for negligence, plaintiff must establish that the City owed a duty of ordinary care, breached that duty, and an injury was proximately caused by that breach. Curatola v. Village of Niles, 154 Ill. 2d 201, 207 (1993). Whether the City owed plaintiff a duty of care is a question of law for the court to decide. Vaughn v. City of West Frankfort, 166 Ill. 2d 155, 158 (1995); Marshall v. City of Centralia, 143 Ill. 2d 1, 6 (1991).\nThe Local Governmental and Governmental Employees Tort Immunity Act (Act) limits the common law duties of municipalities. Marshall, 143 Ill. 2d at 5; Curatela, 154 Ill. 2d at 208. Section 3 \u2014 102(a) of the Act provides in pertinent part:\n\u201c[A] local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used ***.\u201d 745 ILCS 10/3 \u2014 102(a) (West 2008).\nThus, according to the statute, a municipality owes a duty of ordinary care only to those who are both intended and permitted users of municipal property. 745 ILCS 10/3 \u2014 102(a) (West 2008). Because \u201cthe Act \u2018is in derogation of the common law,\u2019 \u201d we must construe it strictly against the municipal defendant. Vaughn, 166 Ill. 2d at 158, quoting Curatola, 154 Ill. 2d at 208. \u201c[A]n intended user of property is, by definition, also a permitted user; a permitted user of property, however, is not necessarily an intended user.\u201d Boub v. Township of Wayne, 183 Ill. 2d 520, 525 (1998).\n\u201c[T]he duty of a municipality depends on whether the use of the property was a permitted and intended use. *** Whether a particular use of property was permitted and intended is determined by looking to the nature of the property itself.\u201d (Emphasis in original.) Vaughn, 166 Ill. 2d at 162-63. \u201cIntent must be inferred from the circumstances.\u201d Sisk v. Williamson County, 167 Ill. 2d 343, 351 (1995). Both parties agree that plaintiff was a permitted user of the alley; the only issue for us to decide is whether plaintiff was also an intended user.\nGenerally, \u201can alley is a roadway designed for vehicular traffic, and the duty imposed on a municipality under section 3 \u2014 102(a) is the same as that imposed for a street\u201d (Khalil v. City of Chicago, 283 Ill. App. 3d 161, 163-64 (1996)), and municipalities do not owe a duty of ordinary care to pedestrians walking in the street (Vaughn, 166 Ill. 2d at 161). However, Illinois courts have recognized narrow exceptions to this rule. One exception is where a municipality has designated areas for street parking. In those cases, pedestrians are intended and permitted users of the roadway for the narrow purpose of entering and exiting the parked vehicle. Sisk, 167 Ill. 2d at 351; Torres v. City of Chicago, 218 Ill. App. 3d 89, 94 (1991) (finding plaintiff an intended user of the roadway when he stepped back from the trunk of a legally parked vehicle: \u201cuse of the parking space logically entails pedestrian use of the adjacent areas in order to enter and exit the parked vehicle and such use of the street is therefore also intended and permitted and reasonably foreseeable\u201d); Di Domenico v. Village of Romeoville, 171 Ill. App. 3d 293, 295-96 (1988) (finding plaintiff an intended user of the roadway when he stepped off the sidewalk in order to access the trunk of his legally parked vehicle: \u201cIt defies common sense to conclude that such local entities did not contemplate and intend that the operator of the vehicle along with passengers would use the street area around the parked vehicle for ingress and egress to and from their vehicle\u201d). This narrow exception extends only to those pedestrians who must necessarily walk in the roadway in order to access a legally parked vehicle; an unnecessary use of the roadway where a legal alternative exists, such as a crosswalk, in order to access a vehicle does not qualify for this exception. Sisk, 167 Ill. 2d at 351-52 (finding that plaintiff was not an intended user of a country roadway with no marked parking spaces, walkways, or crosswalks); Wojdyla v. City of Park Ridge, 148 Ill. 2d 417, 426 (1992) (finding that plaintiff who crossed a six-lane country highway outside of a crosswalk in order to reach his parked car was not an intended user of the roadway).\nThus, Illinois courts have established that something more than mere necessity is required in order for a pedestrian to be an intended user in a roadway; there must be some affirmative physical manifestation of the municipality\u2019s intent that a pedestrian use the roadway. Boub, 183 Ill. 2d at 528 (finding that a lack of special pavement markings or other signs indicating that bicycles were intended users of a bridge precluded a finding that plaintiff was an intended user of the bridge); Torres v. City of Chicago, 218 Ill. App. 3d 89, 94 (1991) (finding that where a municipality permits parallel parking on a roadway, it intends that drivers of the vehicle will use the roadway in order to enter and exit the vehicle). Where there are no affirmative physical manifestations of a municipality\u2019s intent, necessity cannot apply the duty of ordinary care for a sidewalk to a roadway. Sisk, 167 Ill. 2d at 352. In Sisk, the plaintiff\u2019s motor vehicle struck a concrete bridge crossing a creek, and when plaintiff exited his auto to investigate the extent of the damage, he fell off the roadway and into the creek. 167 Ill. 2d at 346. On appeal, the court held that the municipal defendant had no duty to maintain county roads for pedestrian traffic without some affirmative physical manifestation of intent. Sisk, 167 Ill. 2d at 352. As our supreme court explained:\n\u201cIn contrast, there are no such manifestations to indicate that Williamson County intended pedestrians to walk on its country roads, much less the specific road and bridges complained of by plaintiff in the case at bar. As the appellate court noted, there are no walkways or crosswalks on rural country roads such as the county-line road in this case. Further, many county roads are gravel roads and often have no shoulder. We believe that the inference to be drawn from these facts, if any, is that municipalities do not intend that pedestrians walk on rural country roads. Although it may be necessary at times for pedestrians to walk on country roads, such use is not a manifestation of the local municipality\u2019s intent that pedestrians walk on its country roads or an undertaking by the municipality to make country roads free from defects that might injure pedestrians.\u201d Sisk, 167 Ill. 2d at 351-52.\nIn the case at bar, we do not have physical manifestations of the City\u2019s intent but the City has established a policy requiring its residents to place their trash, recycling, and yard waste containers in the alley, which is municipal property. The policy expressly states that the City will not pick up the refuse from private property; residents must use the City property. We have previously held that a person who violates a municipal ordinance referring to a piece of municipal property cannot be an intended user of that property. Montano v. City of Chicago, 308 Ill. App. 3d 618, 624 (1999) (a delivery person who violated a city ordinance when stopping his delivery truck in an alley could not be an intended user of the alley).\nWe have considered the issue of whether pedestrians can be intended users of municipal alleys in three previous cases, and in each case, the determination was fact-specific. In Khalil, the plaintiff was walking down the middle of an alley in order to get from a parking lot to a restaurant when he tripped in a hole and fell. Khalil, 283 Ill. App. 3d at 162. In essence, the plaintiff was using the alley as a sidewalk and there were no affirmative physical manifestations that the defendant municipality intended for pedestrians to walk down the middle of the alley. Khalil, 283 Ill. App. 3d at 164. Accordingly, we found that plaintiff was not an intended user of the alley and thus the municipality had no duty to maintain the alley in a condition suitable for pedestrians. Khalil, 283 Ill. App. 3d at 164.\nIn Kavales v. City of Berwyn, the plaintiffs decedent was walking along a sidewalk and entered an alley where the alley intersected a sidewalk. Kavales v. City of Berwyn, 305 Ill. App. 3d 536, 539 (1999). When she entered the alley, the plaintiffs decedent was still within the lines of the sidewalk on either side of the alley. Kavales, 305 Ill. App. 3d at 539. She stepped into a \u201cdepressed, uneven, and cracked\u201d portion of the alley and fell. Kavales, 305 Ill. App. 3d at 539. We determined that, even though plaintiffs decedent was technically in an alley when she fell, the location was in effect a \u201c \u2018sidewalk area.\u2019 \u201d Kavales, 305 Ill. App. 3d at 544. Accordingly, we found that plaintiffs decedent was an intended user of the alley where it intersected the sidewalk, because the sidewalk was used for pedestrian traffic. Kavales, 305 Ill. App. 3d at 544.\nThe facts of Thomas v. Town of Cicero, 307 Ill. App. 3d 840 (1999), most closely approximate those of the instant case. In Thomas, the plaintiff walked through her backyard and out into the alley in order to dispose of a bag of trash in her garbage can, which was located in the alley. Thomas, 307 Ill. App. 3d at 842. After she threw away her trash, the plaintiff continued down the alley in order to visit a neighbor. Thomas, 307 Ill. App. 3d at 842. After she had progressed several feet down the alley from her garbage can, plaintiff tripped and fell on a crack in the alley. Thomas, 307 Ill. App. 3d at 842. In Thomas, the defendant municipality admitted that its alleys were \u201c \u2018easements for people to get [to] their garages, utilities, electric, cable, [and] garbage.\u2019 \u201d Thomas, 307 Ill. App. 3d at 842. Justice Warren Wolfson, writing for this court, found that the defendant municipality had created a \u201csafe harbor\u201d in which the plaintiff was an intended user of the alley so long as she walked along the path to her garbage can, which is the second narrow exception found by Illinois courts. Thomas, 307 Ill. App. 3d at 845. However, once the plaintiff departed from that \u201csafe harbor\u201d and proceeded down the alley to visit her neighbor, she could no longer be an intended user of the alley, merely a permitted one. Thomas, 307 Ill. App. 3d at 845. Because plaintiff \u201chad thrown away her garbage and had stepped away from the protection of her easement when she tripped and fell,\u201d we found that she was not an intended user of the alley. Thomas, 307 Ill. App. 3d at 845.\nJustice Wolfson\u2019s safe harbor analysis should apply in the instant case. See Thomas, 307 Ill. App. 3d at 845. When the City enacted its ordinance directing plaintiff to place her yard waste, trash, and recycling containers in the alley, it created a safe harbor in which plaintiff could walk along the alley in order to reach the containers. The ordinance provides, in pertinent part, as follows:\n\u201c(A) Residences With Access To An Alley: All residences which abut upon an alley shall designate a collection site at the edge of the property directly adjacent to such alley. Where practicable, the site shall not be fenced or otherwise closed off in such a manner as to impede efficient collection. Any gates leading to the collection site from the alley shall be unlocked. The collection site may be on the alley itself, provided that containers shall not interfere with the free movement of vehicles in the alley.\n(B) Residences Without Alley Access:\n1. Occupants of residences whose property does not abut an alley shall locate garbage containers along the curb immediately adjacent to the property ***.\u201d Evanston City Code \u00a78 \u2014 5\u201410 (2004).\nPlaintiff complied with the City\u2019s ordinance and garbage pickup policy when she placed her waste containers in the alley and thus should fall within a safe harbor, where pedestrians are intended users of the alley when they walk in the alley only to access their waste containers.\nThe City argues that it was unnecessary for plaintiff to enter the alley in order to dispose of her yard waste, and thus plaintiff was not an intended user of the alley because she could have kept her waste containers on the concrete pad next to her garage. We are not persuaded by this argument. First, the concrete pad is part of plaintiff\u2019s private property. The City\u2019s waste pickup policy clearly states that the City will not pick up waste from private property. Therefore, the City\u2019s suggestion is not a viable option, as it violates the written policy. Second, even if plaintiff was able to access her waste containers from the concrete pad, the City\u2019s argument is analogous to saying that the driver of a legally parked vehicle should climb over the gear shift and exit the vehicle from the passenger side door in order to avoid walking in the roadway. We have previously found that where a municipality manifests an intent that people park their vehicles on the street, the municipality also intends that the occupants of those vehicles walk in the roadway for the purpose of accessing the parked autos. See, e.g., Torres, 218 Ill. App. 3d at 94. That same analysis should apply here as well. In the instant case, the City, by passing an ordinance that residents must place their waste containers in the alley, manifested an intent that plaintiff place her waste containers in the alley. The logical inference is that the City also intended that plaintiff be able to access her waste containers and that means walking in the alley in order to reach them.\nFinally, the City\u2019s argument would have us penalize plaintiff for improving her property. The City\u2019s argument implies that if plaintiff had not installed the concrete pad, then she would have been an intended user of the alley when she walked in the alley in order to access her waste containers. Plaintiff installed the concrete pad after purchasing the property in 2000. The previous owners had kept their waste containers in the alley and had no alternative location, such as a concrete pad, in which to place them so as to avoid walking in the alley in order to throw away their garbage. As our supreme court has made clear, we must look to the nature of the municipal property to determine the municipality\u2019s intent. Vaughn, 166 Ill. 2d at 162-63. Therefore we cannot look to improvements or changes made to private property abutting the City\u2019s property to determine the City\u2019s intent with respect to its own property. But, the City argues, once plaintiff installed the concrete pad, the City no longer intended for plaintiff to walk in the alley. A municipality\u2019s intent cannot change because of an independent act of a third party without some affirmative manifestation of that changed intent on the part of the municipality. Boub, 183 Ill. 2d at 528.\nThe City also argues that the trial court abused its discretion in deciding whether plaintiff was an intended user of the alley as a matter of law, rather than allowing the jury to decide the issue. We do not find this argument persuasive. \u201cThe \u2018intended and permitted\u2019 determination informs the duty issue, and the duty issue is a question of law.\u201d Thomas, 307 Ill. App. 3d at 845, citing Khalil, 283 Ill. App. 3d at 162-63. The trial court acted well within its discretion when it determined that plaintiff was an intended user of the alley as a matter of law.\nAccordingly, we find that plaintiff was an intended user of the alley and the City owed her a duty of care pursuant to 745 ILCS 10/3\u2014 102 (West 2008).\n2. Did the City have discretionary immunity?\nThe City also argues that it was immune from liability pursuant to section 2 \u2014 201 (745 ILCS 10/2 \u2014 201 (West 2008)). Governmental entities bear the burden of properly raising and proving that they are immune under the Act in order to bar plaintiffs\u2019 recovery. Van Meter v. Darien Park District, 207 Ill. 2d 359, 370 (2003).\nThe Act grants immunity to municipal defendants engaged in certain discretionary acts. 745 ILCS 10/2 \u2014 201 (West 2008). Section 2 \u2014 201 provides as follows:\n\u201cExcept as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the 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.\u201d 745 ILCS 10/2 \u2014 201 (West 2008).\nSection 2 \u2014 109 allows municipalities to shelter under the immunity granted to public employees covered by section 2 \u2014 201. 745 ILCS 10/ 2 \u2014 109 (West 2008) (\u201cA local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable\u201d).\nOur supreme court has held that the Act sets up, in essence, a two-part test to determine which employees may be granted discretionary immunity under section 2 \u2014 201. An employee may qualify for discretionary immunity \u201cif he holds either a position involving the determination of policy or a position involving the exercise of discretion.\u201d (Emphasis in original.) Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 341 (1998). However, an employee who satisfies the first prong of the test must also have engaged in both the determination of policy and the exercise of discretion when performing the act or omission from which the plaintiff\u2019s injury resulted. Harinek, 181 Ill. 2d at 341. Whether the act or omission in question is discretionary or ministerial must be determined on a case-by-case basis. Snyder, 167 Ill. 2d at 474; Anderson v. Alberto-Culver USA, Inc., 317 Ill. App. 3d 1104, 1113 (2000).\nTherefore, we must determine, first, whether Crabtree was in a position involving the determination of policy or an exercise of discretion and, second, whether he both determined policy and exercised discretion when maintaining the alley. See Harinek, 181 Ill. 2d at 341. Policy determinations, as used in section 2 \u2014 201, involve \u201c \u2018those 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.\u2019 \u201d Harinek, 181 Ill. 2d at 342, quoting West v. Kirkham, 147 Ill. 2d 1, 11 (1992). \u201c[Discretionary acts are those which are unique to a particular public office, while ministerial acts are those which a person performs on a given state of facts in a prescribed manner, in obedience to the mandate of legal authority, and without refer-\nence to the official\u2019s discretion as to the propriety of the act.\u201d Snyder v. Curran Township, 167 Ill. 2d 446, 474 (1995). \u201c \u2018A municipal corporation acts judicially or exercises discretion when it selects and adopts a plan in the making of public improvements, but as soon as it begins to carry out that plan it acts ministerially and is bound to see that the work is done in a reasonably safe *** manner.\u2019 \u201d Greene v. City of Chicago, 73 Ill. 2d 100, 108 (1978), quoting Johnston v. City of East Moline, 405 Ill. 460, 466 (1950). Our supreme court further explored the contours of discretionary versus ministerial acts in In re Chicago Flood Litigation:\n\u201c \u2018Official action is judicial where it is the result of judgment or discretion. Official duty is ministerial, when it is absolute, certain and imperative, involving merely the execution of a set task, and when the law which imposes it, prescribes and defines the time, mode and occasion of its performance with such certainty, that nothing remains for judgment or discretion. [Citation.] A [municipal] corporation acts judicially, or exercises discretion, when it selects and adopts a plan in the making of public improvements, such as constructing sewers or drains; but as soon as it begins to carry out [the] plan, it acts ministerially, and is bound to see that the work is done in a reasonably safe and skillful manner.\u2019 \u201d In re Chicago Flood Litigation, 176 Ill. 2d 179, 194 (1997), quoting City of Chicago v. Seben, 165 Ill. 371, 377-78 (1897).\nTwo lines of cases have emerged as Illinois courts have considered the issue of what constitutes \u201cdetermining policy\u201d and \u201cexercising discretion\u201d for the purposes of applying discretionary immunity. 745 ILCS 10/2 \u2014 201 (West 2008). The first line of cases follows the reasoning of Greene and maintains that when a municipal employee is deciding whether and how to implement a program of maintenance and improvements, that employee is \u201cdetermining policy\u201d and \u201cexercising discretion\u201d as required by section 2 \u2014 201. Greene, 73 Ill. 2d at 108; see, e.g., Chicago Flood Litigation, 176 Ill. 2d at 194; Hanley v. City of Chicago, 343 Ill. App. 3d 49, 57 (2003). But once the employee is carrying out that maintenance or improvement program, the employee\u2019s actions are ministerial and do not give rise to discretionary immunity. Greene, 73 Ill. 2d at 108; see, e.g., Snyder, 167 Ill. 2d at 474-75; Anderson, 317 Ill. App. 3d at 1117.\nThe second line of cases seems to find that any act that would result in liability for a municipality is \u201cdetermining policy\u201d and \u201cexercising discretion.\u201d Courson v. Danville School District No. 118, 333 Ill. App. 3d 86, 91 (2002) (finding that a shop teacher\u2019s decision to remove the safety shield from a saw involved a determination of policy and an exercise of discretion); Wrobel v. City of Chicago, 318 Ill. App. 3d 390, 395 (2000) (finding that laborers\u2019 decisions concerning how to fill potholes involved a determination of policy and an exercise of discretion); Johnson v. Decatur Park District, 301 Ill. App. 3d 798, 809 (1998) (finding that a tumbling coach\u2019s decisions not to ensure adequate placement of safety mats and not to warn of the dangers inherent in using a mini trampoline involved determinations of policy and exercises of discretion).\nOur supreme court has offered some guidance on determining what sorts of positions involve \u201cdetermining policy\u201d and \u201cexercising discretion.\u201d 745 ILCS 10/2 \u2014 201 (West 2008). Most recent cases granting discretionary immunity involve decisions that took place at the executive or policy-making level. Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 487 (2002) (school district decided not to provide roller blading safety equipment for a high school physical education class), superseded on other grounds by statute as stated in Murray v. Chicago Youth Center, 224 Ill. 2d 213 (2007); Harinek, 181 Ill. 2d at 342 (fire marshal planned and executed a fire drill in a downtown high-rise); Chicago Flood Litigation, 176 Ill. 2d at 195 (City of Chicago retained discretion to change location of bridge pilings).\nIn Harinek, the plaintiff alleged that she suffered injuries resulting from the fire marshal\u2019s negligent conduct during the course of a fire drill. Harinek, 181 Ill. 2d at 338. During the fire drill, the marshal directed an entire floor of people, including the plaintiff, to stand in the vicinity of a heavy, windowless door in a crowded elevator area, where more people were placed than the area could hold. Harinek, 181 Ill. 2d at 338. When the door was suddenly pushed opened, it struck and injured the plaintiffs head, causing serious injury. Harinek, 181 Ill. 2d at 338. The supreme court affirmed the trial court\u2019s dismissal of the plaintiffs complaint on the grounds that the fire marshal was entitled to discretionary immunity under section 2 \u2014 201 of the Act. Harinek, 181 Ill. 2d at 343. The court reasoned that the fire marshal was in a position involving the determination of policy because he \u201cbears sole and final responsibility for planning and executing fire drills in buildings throughout Chicago\u201d and that he both determined policy and exercised discretion in the course of the fire drill at issue in the complaint. Harinek, 181 Ill. 2d at 343. Justice Carman proposed the following framework for explaining the court\u2019s reasoning in Harinek:\n\u201cFirst we should ask: Where does the official whose action is challenged stand in the relevant hierarchy of decisionmakers? Did he bear the sole and final responsibility for the decision in question, or was his decision to act as he did subject to review and approval by others? The higher the official stood in the relevant chain of command, the more likely it is that he acted with discretion for the purposes of section 2 \u2014 201.\u201d Van Meter v. Darien Park District, 207 Ill. 2d 359, 392 (2003) (Garman, J., dissenting, joined by Fitzgerald, J.).\nIn our analysis, we must determine whether or not Mr. Crabtree was \u201cserving in a position involving the determination of policy and/or the exercise of discretion,\u201d as required for discretionary immunity under section 2 \u2014 201. See 745 ILCS 10/2 \u2014 201 (West 2008). Mr. Crabtree never testified that he made determinations of policy. Instead, he testified that such determinations came from the mayor and aider-men of the City. Crabtree merely checked out residents\u2019 complaints about the condition of specific alleys and, from those complaints, made a list of locations which needed repairs. There is no evidence in the record of this case that his list was used as the basis of repairs that were made, and other people in the city also provided lists for repair.\nIn fact, Crabtree testified that he had no record or independent recollection of that alley during the spring of 2004. Since the City had established a program of annually regrading all its unimproved alleys, carrying out this regrading program appears to be \u201cabsolute, certain and imperative, involving merely the execution of a set task.\u201d Chicago Flood Litigation, 176 Ill. 2d at 194. In addition, our supreme court has made clear that while the decision of whether to implement a program of repairs is both a determination of policy and an exercise of discretion, carrying out that program is a ministerial act. Greene, 73 Ill. 2d at 108; see, e.g., Snyder, 167 Ill. 2d at 474-75; Anderson, 317 Ill. App. 3d at 1117. The instant case fits squarely within this general rule and we see nothing in the record to indicate that Mr. Crabtree\u2019s actions or lack of actions in maintaining the alley is the sort of conduct that would be immune from liability under the Act.\nDefendant points to Wrobel v. City of Chicago in support of the proposition that laborers who fix potholes hold positions requiring both the determination of policy and the exercise of discretion and thus are eligible for discretionary immunity under section 2 \u2014 201 (745 ILCS 10/2 \u2014 201 (West 2008)). Wrobel v. City of Chicago, 318 Ill. App. 3d 390, 395 (2000). In Wrobel, the plaintiffs alleged that they suffered injuries resulting from the defendant municipality\u2019s negligent repair of a pothole. 318 Ill. App. 3d at 391. The record in Wrobel disclosed how the work was done. We affirmed the trial court\u2019s grant of summary judgment in favor of the defendant on the grounds that the defendant was entitled to discretionary immunity under section 2 \u2014 201, explaining:\n\u201cThese workers are directed by [their foreman] to remove \u2018as much\u2019 loose asphalt and existing moisture in a pothole \u2018as possible\u2019 before applying the cold mixture. While they are obligated to undertake such measure pursuant to the express directive of their foreman, the workers enjoy discretion in determining how much asphalt and moisture should be actually extracted and whether that amount is indeed adequate to ensure a durable patch.\nThe decisions of the workers in this regard can also fairly be characterized as policy determinations. When confronted with a particular stretch of roadway, the workers must necessarily be concerned with the efficiency in which they prepare any potholes for repair. Specifically, the workers must allocate their time and resources among the various potholes that will be repaired, and they must ensure that not too much time is dedicated to pothole preparation. The more time and resources the workers devote to preparing potholes for a patch, the less time and resources they have available to repair the other potholes existing throughout their daily grid.\nFor the same reasons discussed above, the extent of the workers\u2019 removal efforts represent both a determination of policy and an exercise of discretion. The degree to which a pothole should be prepared, and specifically how much loose asphalt and moisture will be removed, is a matter of a worker\u2019s personal judgment, and encompassed within that judgment are the policy considerations of time and resource allocation during a given workday.\u201d Wrobel, 318 Ill. App. 3d at 395.\nIn the case at bar, there is nothing in the record to show that any work was done in the alley, certainly not how it was done. Every case must be decided on the evidence and facts of that case. The burden was on the city to prove how and why it is entitled to immunity and it has failed to sustain that burden. Van Meter, 207 Ill. 2d at 370.\nWe distinguish Wrobel on its facts. In Wrobel the question of the defendant\u2019s negligence focused on the minutiae of how municipal workers repaired a particular pothole, because there was no dispute that the municipal defendant had patched the pothole just days before the plaintiffs\u2019 injury. Wrobel, 318 Ill. App. 3d at 395. This inquiry examined such factors as how much water a worker removed from a pothole before patching it and what sort of material was used to form the patch. Wrobel, 318 Ill. App. 3d at 395. In the case at bar, the City had established a program to annually regrade its unimproved alleys. Glen Crabtree, a public works supervisor for the City, testified that he usually regraded the alley in question prior to the Fourth of July. However, Mr. Crabtree testified that he had no record that he had regraded the alley prior to July 10, 2004, and that he had no independent recollection that he had done so or what had been done. Thus the question for the jury was not whether the City properly prepared the depression that tripped plaintiff or whether the City utilized the proper materials. The question was far more simple: was the alley repaired and was it repaired adequately? When the jury returned a verdict in favor of plaintiff, two reasonable inferences can be drawn: either the City did not regrade the alley prior to July 10, 2004, or, even if the City did regrade the alley during that spring, the regrading was negligently carried out. The City presented no facts at trial to suggest that the regrading process in the instant case involved the sort of complex, location-specific determinations that were in question in Wrobel. In the case at bar, Crabtree testified that the City made annual repairs, but there is no evidence of what they did.\nOur supreme court has made clear that whether a municipality engages in a program of public improvement is a discretionary matter but the manner in which the municipality implements the program is not. Snyder, 167 Ill. 2d at 474-75 (\u201cWe are also mindful of the longstanding common law principle that, although a governmental agency has discretion in determining whether to perform a public work or make an improvement, once the decision to perform the work is made, it must be done with reasonable care and in a nonnegligent manner\u201d); see also Baran v. City of Chicago Heights, 43 Ill. 2d 177, 180-81 (1969) (\u201cIn holding a city responsible for injuries thus caused the court is not reviewing the city\u2019s discretion in selecting a plan. It is not controlling or passing upon the city\u2019s estimate of public needs. Nor is it deciding what the \u2018best\u2019 kind of improvement may be. It is simply saying that when a city creates a hazardous condition and someone is injured as a consequence it must respond in damages, just as others are required to do\u201d). This indicates that discretionary immunity should not extend to a municipality\u2019s actions when carrying out a program of maintenance and repair such as the one in the case at bar.\nIn addition, 20 days before the opinion in Wrobel was published, we explicitly stated that we would not grant discretionary immunity to every act performed by a public employee. We cautioned against an overly expansive reading of section 2 \u2014 201, explaining:\n\u201cEvery failure to maintain property could be described as an exercise of discretion under municipal defendants\u2019 expansive approach to governmental immunity. The legislature could not have intended such a result; otherwise, it would not have codified the common law duty to maintain property under section 3 \u2014 102 of the Act. The Act must be strictly construed against the public entity involved.\u201d Anderson, 317 Ill. App. 3d at 1117, citing Aikens v. Morris, 145 Ill. 2d 273, 278 (1991).\nNotwithstanding the findings in Wrobel, we will continue to construe section 2 \u2014 201 strictly against municipal defendants.\nThe City argues that Mr. Crabtree exercises discretion in determining which alleys to regrade, when, and with what materials. While this may be true, Mr. Crabtree was not the final arbiter of whether plaintiffs alley would be regraded or otherwise repaired in the spring of 2004. Ms. Butkus testified that she had complained about the condition of the alley via telephone and e-mail to Alderman Tisdahl. Alderman Tisdahl had come to inspect the condition of the alley near plaintiffs fence gate and agreed that the condition was poor and in need of repair. Alderman Tisdahl then assured Ms. Butkus that she would put the alley on the City\u2019s priority list for spot repairs. Thus, Alderman Tisdahl, not Mr. Crabtree, exercised discretion in determining that plaintiffs alley should be repaired. Once Alderman Tisdahl made the decision that plaintiff\u2019s alley needed repair, Mr. Crabtree no longer had discretion to determine whether the alley needed attention. His role became purely ministerial: carrying out the maintenance requested by the alderman.\nAgain, the City points to Wrobel and argues that Mr. Crabtree exercised discretion in determining how to fill the depressions in the alley by plaintiffs fence gate. If the City had presented evidence at trial that Mr. Crabtree had in fact repaired the depressions by regrading the alley, then we would be presented with the question of whether Mr. Crabtree exercised discretion in choosing which materials to use in the regrading. However, no such evidence was presented at trial. Instead we only have Mr. Crabtree\u2019s assertion that he attempts to regrade this particular alley in time for the Fourth of July parade each year and so he must have regraded the alley by that time in 2004. This is not an issue of whether Mr. Crabtree used the correct materials in regrading the alley but rather whether he regraded the alley at all. There was no evidence presented at trial that he did.\nOnce Alderman Tisdahl put plaintiffs alley on the priority list for repairs, Mr. Crabtree no longer had discretion to decide whether or not to allocate City resources for the repair of plaintiffs alley. That decision had been taken out of his hands. All that was left for Mr. Crabtree was to carry out the requested maintenance, an act that we have previously found to be ministerial.\nThe City argued at oral argument that the trial court prevented it from presenting a complete discretionary immunity defense pursuant to section 2 \u2014 201. 745 ILCS 10/2 \u2014 201 (West 2008). However, the record does not support that assertion. Plaintiff called Mr. Crabtree as an adverse witness pursuant to section 2 \u2014 1102 (735 ILCS 5/2 \u2014 1102 (West 2008)). While Mr. Crabtree was on the stand, the City cross-examined him in great detail about his duties as a public works supervisor and his role in the City\u2019s alley maintenance program. After plaintiff rested her case, the City moved for a directed verdict because, among other arguments, it claimed that it had discretionary immunity pursuant to section 2 \u2014 201 (745 ILCS 10/2 \u2014 201 (West 2008)). The trial court denied that motion. Then the City recalled Mr. Crabtree as a witness in its case in chief and questioned him further about his role in the public works department. After the City rested its case, plaintiff filed a motion for directed verdict claiming that the City had failed to sufficiently prove discretionary immunity. The trial court determined, after hearing all of the evidence presented to the jury, that the City had failed to establish that it qualified for discretionary immunity under the Act. 745 ILCS 10/2 \u2014 201 (West 2008). The City was given the opportunity to present its case; the trial court did not bar the City from arguing discretionary immunity until after the City had presented all of its evidence on the issue. The City has the burden of proving that it qualifies for discretionary immunity and the City failed to meet that burden. Van Meter, 207 Ill. 2d at 370.\nAccordingly, we find that the trial court correctly barred the City from presenting a discretionary immunity defense pursuant to section 2 \u2014 201 (745 ILCS 10/2 \u2014 201 (West 2008)).\nCONCLUSION\nFor the foregoing reasons, we affirm the judgment of the circuit court of Cook County.\nAffirmed.\nJ. GORDON and McBRIDE, JJ., concur.\nA locally popular hot dog stand, Mustard\u2019s Last Stand, is located south of the east-west alley and commercial vehicles travel along the alley to make deliveries there. The property east of Mustard\u2019s is the location of Northwestern University\u2019s football stadium.\nThe City\u2019s Web page describing garbage pick-up policies states: \u201cGarbage must be placed on the curb or alley line by 7 a.m.; it will not be collected from private property.\u201d (Emphasis in original.)", "type": "majority", "author": "JUSTICE ROBERT E. GORDON" } ], "attorneys": [ "Richard T. Ryan, Mark E Smolens, and Richard L. Jones, all of Ryan, Smolens & Jones, of Chicago, for appellant.", "Francis Patrick Murphy and William T. Gibbs, both of Corboy & Demetrio, P.C., of Chicago, for appellee." ], "corrections": "", "head_matter": "ELIZABETH GUTSTEIN, Plaintiff-Appellee, v. THE CITY OF EVANSTON, Defendant-Appellant.\nFirst District (6th Division)\nNo. 1\u201408\u20143607\nOpinion filed June 4, 2010.\nRichard T. Ryan, Mark E Smolens, and Richard L. Jones, all of Ryan, Smolens & Jones, of Chicago, for appellant.\nFrancis Patrick Murphy and William T. Gibbs, both of Corboy & Demetrio, P.C., of Chicago, for appellee." }, "file_name": "0610-01", "first_page_order": 628, "last_page_order": 647 }