counsel well i hope plaintiffs appeal and i hope i'm reversed such was the exasperating of the trial court having felt compelled to enter summary judgment on behalf of wesley township and it's understandable these immunity statutes have for decades been misunderstood and misapplied and modeled the mind of many a jurist in part due to inconsistent language and lack of some judicial clarity this trial court expressed its frustrating because under the facts of this case it seems so wrong to grant the wesley township immunity from responsibility for the deaths of these four children and it was wrong and for several different reasons st let's discuss what's not involved in this appeal the trial court held that wesley township had a duty to maintain a roadway and reach their duty by doing nothing those holy as have not been appealed by apple a and should be consider unchallenged by the court  analyzing whether summary judgment was proper in this case the precise legal analysis employed by the trial court in reaching its decision is a bit obscure but we can surmise that since the court ruled that wesley township had a duty as a matter of law and breached its duty the trial court must of concluded that it was compelled to determine that wesley township had immunity under article article three of the toward immunity act and therefore was afforded an affirmative defense not before discussing those issues the court should focus on a few operative facts the scene of this occurrence on ballo road was for years prone to flooding and after heavy rains for quick creek eventually was able to take a short cut across ballo road bypassing the bridge and then reentering fork creek at the other side progressively this flooding deteriorated ballo road causing it over the shoulder became higher than the roadway and allowing deeper and deeper accumulations of water because the water was unable to drain from the roadway  was in my view a different from that approach to where the water was accumulating is that correct or not i was just about if i could i wasn't sure how to do this but i have a photograph which  according to the testimony there was twelve inches deep water going approximately sixty feet but the size of the red zone around in an n f l field and going up to about thirty feet before the engineering lead yes my expert had testified that because over the years this was a deterioration of the roadway caused by flooding that the they either had to raise the roadway up in order to get that out because had the roadway been like it was supposed to be a rear there would not have been the accumulation it would have been able to drain off and that becomes extremely important in this case because we're not that we've argued that there's a duty to close which i would get to there is an existing duty in the court so noted of a duty to maintain and that regardless of how this court determines the duty to close them they have the occurrence it doesn't change the three  two duty to maintain the road and the only reason that there was an issue of closing or on the day of the occurrence is because of the fact that they didn't maintain it and it caused an said improvement means a change for the better while maintenance connotes preserving sameness and that's what is the stink chin is here this road wasn't built this way this road let's let me ask this question somewhere i thought there was a mention of an improvement of sums and years ago yes there was some conversation about the fact there was some work done at the base of the bridge and that you know is an issue in the case that they obviously were aware of some needs on this roadway but it doesn't necessarily reflect the point at which all of this occurred which is that deep ok i was been very reasonable i thought that the improvement that the base of the bridge that was on player was creating a ramp elevation to the bridge that would naturally allow it dept or that improvement which would accumulate was and i think that was an issue yes that was raised by agent the expert that the two in combination created a circumstance that needed to be addressed and was not and because over that ten years following even that it created a deeper and deeper accumulation and that's central to this whole case and thirty one of five specifically excludes from immunity damage to roadways caused by flooding which is exactly this so even though yes the flooding they'd be immune from doing anything had that just been the issue the reality here is that the roadway was deteriorated by flooding specifically excluded under three hundred and five and more specifically refer you back to three  produced a condition progressively that became worse and worse over the numerous years decades that this condition adept oh i have a question i was while under the impression below the roadways well there's twenty two uses of the word grade one because the road subsided the berms became higher and wouldn't allow the water to drain they said we have a sinking road exactly and either you iran or identified the point they have you cut down the berm so that the water can get off the road once it is flooded or you're raise the roadway up either way the proximate cause ation of the accumulation of water air is a maintenance matter which is not does not have an immunity under any of the statute that are at issue in this case this isn't a discretionary function there is no discretion to ignore maintenance and we can cut to the chase exactly on that these children died because the wesley township ignored their three hundred and ten to a duty and as a result a dangerous condition proximately caused their car to go out of control and they deceived the two thousand two hundred and twenty two or one section of the statute which talks about immunity from discretion doesn't apply in this case at all there is absolutely no evidence in this record that any policy decision was ever decided by the municipality westley township there is some self serving statements from mr roeder while road commissioner as to what he saw and what he thought but the case law is very clear and very specific that the supreme court has said you've got to show that there was a conscious deliberate decision on policy that you weighed various conflicting interests and look for solutions ok there is actually no evidence in this case that the  trustees the township supervisor the people that actually are lek to the run that the township ever even knew about this condition and certainly on the day of your current's made a conscious decision to ignore it and do nothing and i think that's important because without that conscious decision there can be no application for immunity in fact monson clearly states the failure to prove a conscious decision will to a plane under to dash to a want and by incident further says that a public entity claiming immunity for alleged failure to repair a defective condition must present sufficient evidence that it made a conscious decision not to perform the repair there is nothing in this record that wesley township the entity made any decisions as regards this particular defective condition and certainly on the day of the occurrence and therefore they haven't sustained their burden to be granted immunity and to dash to a want and that leaves a strictly under three dash one hundred and two which in this case is is turn because they failed to maintain it the courts are very clear that every failure to maintain property could be described as an exercise of discretion under municipal defendants expansive approach to governmental stein case so our position is very clear here we believe the court failed to properly rule on our motion for summary judgment since there was a duty a breach of that duty proximate law you know is very clear that they want before they say discretionary and and then ministerial they want to show that there is governmental action involved here that they don't want to have to nd guess there was nothing done by the municipality didn't wait what needed to prepare what it cost these are the assertions of a highway commissioner who is only one of many people and the people that actually control what the municipality does where the supervisor and the four trustees there was no testimony from any of them that these people rubber consulted that ever sat down and said let's balance the sensors and come to a solution that is most balanced it's not there was very last point about the road commissioner whether he is or is not a name defend and i believe he may have been in one of the four cases ultimately it doesn't matter because under section one dish one hundred and nine where the public official is entitled to immunity then understood to to a one so is the township so that immunity does apply both ways but i would like to back up just for a nd before we dive into the other issues and and try to give a little bit more of a picture and i think some of the questions that were asked focus on what is truly important here this was a massive flooding event there  some dispute it was caused by the weather and rain and there were eleven both in wesley township alone that were flooded completely underwater not just ballou road where we're talking about but blue road was flooded at a dept least a foot or a stretch of over sixty feet or at least sixty feet and contrary to the picture that has been painted here today which frankly was not painted in the trial court so i don't think this is appropriate argument  ninety nine percent of the argument in the court below but with the failure to close the road and i think what is squarely before the court today is a recognition by the plaintiffs that under the immunity supply and are three want to four they have to reform their case and focus more on maintenance issues and they're trying to frame it that way but there is no evidence whatsoever that the ditches were dry and somehow only the road contain twelve inches of water as seemingly is being suggested here this was a situation where the entire creek was flowing over the ditches over the road over the opposite because bolu road runs east and west fork creek runs north and south so as the creek becomes flooded it widens and essentially overflows everything in its path and that includes the area that we're talking about here which is to the east of the bridge itself but it is correctly stated to be an area where the road and the ground on either side of it goes down and then goes back up again as you approach the bridge so much like the th is are considered a case called canal kennel versus clayton township where that was alleged that rise in the road should have been removed to suggest that the township should have raised the road or somehow done something to affect the natural topography of this is not warranted under existing law there's no duty to do that and there's no duty to upgrade this was a situation where the entirety of this area was underwater for the depth of sixty feet so not a were is a significant amount of argument on the assertion that the township should have closed the road in fact that was the the main thrust of plaintiff's argument in the court below it was the main thrust of their their expert mr agent he testified that the sole proximate cause was the failure to close the road that was in fact his opinion thirty one of four has been the law in illinois since the toward immunity act started  note it was amended in one thousand nine hundred and six and we remove section b which said community did not apply if there was evidence of a dangerous condition that needed to be warned of the legislature removed that exception to thirty one dollars of four and there after it's been absolute the west case in all the cases including cases out of the rd district have consistently enforced three want to foray as not requiring signage of any kind the plainest argued that because three thousand one hundred and forty eight did not include the language quote unquote close roads and somehow it did not apply but i don't believe that is a valid argument certainly the legislature couldn't include every scenario you might do something with a sign that just chose to focus on the signs itself and i think it's very clear under west and judge rossi in the core below because this was the main argument made to him ultimately understood that we had no choice under the precedent but to apply the three want to foray on all the issues of closing the roe so planets move then and to have tried to frame this as a maintenance issue and that's been the focus of most discussion here today there were three things that the plaintiff expert said he thought needed to be done and again i think it's important i don't there is nothing in the record to suggest the picture that has been painted by mr ozment here today that the area on either side of the road was dry and that somehow we had twelve inches deep of water in the roadway that was caused to be there by some function of the road lowering over the years that's not what occurred that's not supported by the evidence what is supported by the evidence and i'll take this in a light most favorable to the plaintiff straight from their expert testimony he said that where the road and the top are to goes down he said he found that the edges of the ditches were three inches higher than the road on either side ok not a foot not over a foot not some chasm that caused the water to go down on to the road that he testified that he felt the frankly because this is in a flood plain area we're not allowed to do anything that could potentially alter the water there is a case bothers that story ema and our new national resources state very clearly can't do that been this or creek itself was completely out of its banks and had amassed over the the what i'm calling ditches because they're the size of the roads and the roadway itself at a depth of twelve inches plainness expert said you should raise the road which we know there's no duty to do he said that you should install color he didn't explain how in selling the color underneath an already completely flooded area  anything but taking it as it said there's no duty to make that improvement we know that under common law and three want to five b and he finally said that because the dishes had been three inches higher on either side or the edges of the road more properly you should carve those out and create dishes again there's no duty to do that and there is complete immunity for any argument to speak that was a twelve inch depth correct brought up let me change impacts on under just a you're not saying that these are the facts in your heads but if there were because this is a of the road which is a hard fact road of the other what blacks it's not very hard and that there is the side of the road that is higher than the roadway and you have you'd have to be digging out land way adjacent to the roadway under those circumstances not called a road grader while road grader can grade the land into the fields on either side road graders typically would grade this is it like to describe this is a berm is it is not supported anywhere in the record frankly what the experts said was there is about three inches on either side that he felt the edge of the road was higher than the road itself so understanding your analysis and obviously that's a different scenario than we have here i still don't concede that we have an obligation to change land adjacent to the roadway and in this case that's not what we have here we have it's undisputed frankly plaintiff's expert said and admitted that just doing that would not have changed anything he said you had to do all three things to even have a chance at lessening the water you never testified to reason with degree of certainty that even doing all of these would have prevented the overflow of the creek over the road but you have to look at the these three things in conjunction with each other not parse them out individually so that includes installing a culvert includes raising the road up and things that clearly there are no duties to do and then there's the next step of this is that there's no dispute whatsoever that unfortunately this this tragedy was caused by the water and we have section three dash one  immunity act that squarely applies as well section three this one hundred and ten points out that when an injury is caused by or in an adjacent waterway lake pool ponder river that when that water with self is not supervised owned or maintained by the governmental entity there cannot be liability for it now i know not too long ago this court heard will county dealing with that it was an unpublished twenty three decision so it had been cited to here but one of the focuses there was whether there was truly evidence of who owned the water well here that's undisputed here the water to the north of blue road was owned and within the jurisdiction of the will county forest preserve and to the south it was under the ownership of milton farms so it was not and it's this is undisputed would not within the manus jurisdiction of wesley township so it's also undisputed that unfortunately the injuries in this case were caused by the water so a fair question to ask me and anyone is if the injuries are caused by the water and there's an allegation that you caused the people to be in the water how can you apply the immunity well that was the exact argument that was made to the appellate court in the mccoy case with white vs international port district because they allege that after someone fell into a water waterway they did so because the aerial on the side was not maintained properly and that caused the person to fall it in the area of maintenance was within the jurisdiction of the defendant that the court concluded that because three dash one hundred and ten did not have an exception for that it did not minimize or alleviate the immunity that was applied and i think that the analysis of that is very similar to what happened with three want a whore and  duty to install signs one might say why can you have an immunity for failure to install signs if that failure to do so creates a dangerous condition well it's because there's no exception to three thousand one hundred and four a and it's absolute and that's the announcement of the legislature the same analysis applies to three dash one hundred and ten there is no exception under three dash one hundred and ten for an allegation that the defendant i see my time's up could i have just a nd to conclude your honor yes thank you thank you so there is no exception to three d one tests for all the reasons that we've discussed when taking everything into account that the trial court did we have to the judge will be affirmed the only area where we disagree with judge rafi's decision was on the area of discretionary immunity because the functions of closing roads in eleven places which means twenty two different spots and type three barricades and keeping people from their homes and digging ditches and affecting the natural flow of waterways and things of that nature are all things that are unique to the public office of road commission and these do fall squarely within discretionary functions mr ok maybe i misunderstood you but when we focus on maintenance you're saying there's there's no duty or obligation for the governmental entity to has held that under havens versus harris there's no obligation to do grading or digging ditches or widening roads and things of that nature but i can certainly imagine a scenario possibly where the edge of the section right and that's what the concept of right of way is not just a road service true i hope that clarifies kind of what i was saying because it read in conjunction with meaning this has been argued numerous times in rd districts we have a lot of roadways and havens versus harris is one of the seminal cases out of our district that deals with these issues and it helps squarely that is discretionary whether you widen roads smooth gravel d grading mode it is all of those types of things which are on a jamming land some of them so i hope that clarifies i'm not saying there can't be a scenario ever imagined but it's certainly not in this case this is clear enough that we can disappearing sometimes on my screen this lawyer wrote a wildfire it's very clear that everything in that depression the berm the shoulder everything is significantly lower than it is on both sides and bets why the water was twelve inches deep and that was because the roadway wasn't maintained and it was conspicuous that apple his argument didn't calling a berm how high is that well you can see it actually know has it in somebody's measure at no no you can see in the photograph five five that that berm or shoulder or whatever you wish to call it is depressed at the area where the secure lation causes b a go out of control and therefore it you can see that it drops actually disappears you said nobody measured it know that it was reviewed by agent and that's important because there wasn't any testimony from  wesley township that what we said wasn't true and the point is it's this is a maintenance case and there is an issue certainly that creates quite a you know  frankly you know it would be a bit in and ironic that a public entity would be liable to the public for injuries or deaths caused by failures to maintain their property but would not be required to warn the public of such conditions even when those conditions presented in the exemption dangerous serious risk of injury or death that they themselves had contributed to cause it would seem that that would be construing the immunity statute in the absurd or unjust manner which the supreme court in stalin said we're not supposed to do that was sort of allowed the public attitude of throw caution to the wind and protecting the public from their failures to maintain their property this roadway argument about water from some under it you know under regulated or an area where they didn't control it's not about this states this is on their road and it's caused because the road subsided and they did nothing about it an argument of this court is we don't have to well yes you do and this is not an improvement under the case law and this is not an upgrade under the case law it clearly is only asking that they maintain sameness which they did not do and a condition that progressively got worse and worse ultimately was responsible for the deaths of four youths who made contact with their excessive accumulation caused by their failure to maintain  certainly believe that there has to be some kind of charity between warning what you know when you've done it when you caused it and there is a schism in the case lodge in that regard however as far as we are here on a summary judgment granted saying there is no issue of fact that they are entitled to summary judgment while there are certainly no immunity that applies to the maintenance here and furthermore they certainly under the facts of this established that they are entitled to any and that they had a duty to maintain so we certainly maintain that summary judgment was totally improper at the very least there are issues affect inherent in this fact pattern and summary judge it was totally improper we asked the court to reverse a remand the case and consider our motion for summary judgment since the elements were proven to the point that there isn't an issue  fact that they failed to maintain the road that the roadway that they failed to maintain was the proximate cause of the death of these children and therefore we proved our case and we've asked the court to rule accordingly