he villages decision to further investigate and repair of the storm sewer it rained at issue until march of two thousand and nine was both an exercise of discretion and a determination of storm sewer drain tile was the result of reasoned deliberation and affirmative decision making and and an affirmative decision making process further there was no policy no see action or regulation  functions by a public employee you must have both the discretionary act and up policy determination in order to garner that immunity in contrast as we know ministerial tasks do not get protected by t here in that case i think it would be ministerial because of the existence of the regulation it would be the case law talks about the execution of a task that is absolute and certain and in your example all because of the existence of back regulation and i think that all you have would be ministerial we don't have that here there's no evidence of that here where the timing of these repairs is concerned and that's an important thing to know nobody's taking maintenance supervisor to go out and investigate the problem in so came back for a november work meeting and reported what he found it was at that point that the order liberated and there were concerns competing concerns which is the quintessential definition of a policy determination the concerns were that they were bought at that time that railroad street would need to be completely torn up in order to effect repairs winter was coming there's also a concern that was a concern for the board about potholes and other other problems with the road being created by winterizing activities  so what not so the thought was if we dig up this road now we're going to make travel on this particular street treacherous so let's wait until spring the weather went great and go out and make the repair and that's went to trial the second amended complaint doesn't detail any of those complaints and it's been in two complaints that were testify to a trial i mean this is clark i testified that she contacted the mayor that we in two thousand and two and advised him that the catch piece and it was on the property was retaining water she also claimed or testified at trial that she made a similar and i'm sorry ending to correct the statement i just made the complaint in two thousand and two was to a part time mean it's worker for the village not the mayor in two thousand and seven mrs clarke testified that she contacted the mayor and again notified him that the catch basin on the property wasn't draining and it was retaining water the complaint doesn't have any about it to complain and what the case was a battle was what the village did in the weight of the september thirteenth  but we also had a focus at trial on this is what the village was doing for other people after that but they didn't do anything for me and we did several months before they fixed the drain tile so i think not only the statue of limitations issue pleadings itself that were at issue in the trial testimony the focus of it supports that you know really we're looking at a snapshot in time and it wasn't about what was going on in two thousand to work for thousand court has held that a document selecting a play and for public improvements is of course discretionary i want you to read out or executed it becomes ministerial and you have a duty to see to it that the work is done in a reasonably safe and skillful manner from those pronouncements a general rule has emerged and i emphasize general that an act or omission of repair or maintenance is a ministerial function to which you too will want to mean and he doesn't apply and  case that are analyzed the circumstances of each case that have to be analyzed as part of that analysis and we've cited in our three decisions from several words that concern the timing of repair work and there have been instances based on the facts in those cases and we submit the facts here are similar where i have and after omission of repair and maintenance and specifically a decision about when to affect rendered it impossible to classify the decision yet it's a discretionary policy determination putting aside the issue of immunity i want to make sure i also touch upon the two whether  asonable jury could conclude that the villages failure to maintain the storm sewer system or specifically personally compressed drain tile underneath railroad street was the proximate cause for the flooding on their property second time because he didn't get what he wanted the first time and then after all that we had three jury questions that came out for this particular witness about proximate cause of the jury didn't hear proximate cause opinion either sewer system could not have handled these particular rain storms one of which was one hundred year rains form that one on september thirteenth two thousand and eight i want to turn very quickly as well  leads to the statute of limitations ruling that we've already touched upon a little bit this morning that only got short shrift at the trial court for a couple of different reasons one was that the plaintiffs testified as to when they first noticed a mole damage in their home which was in two thousand and nine they testified that the florence intensified from the september thirteenth two thousand and eight forward and they testified about their successful being up efforts after all the earlier the no offense but that testimony did not fill the proximate cause yeah the trial court he granted a motion and women made that prevented the plaintiffs from offering the proximate cause of evidence as to both the timing of their their damages and what caused it and just because  plaintiffs didn't notice more of growth in their home until two thousand and nine of course doesn't mean that it wasn't their their own apps for testified at trial that most growth can be obscure it's been eight i the testimony but the damage was minimal from earlier non actionable floyds rang hollow in light of the fact that originally plaintiffs filed a complaint in this case sequence significant damage is for all of those other wedding events and the plaintiffs in the expert who self could not opine about well i don't think that they had a plan and i think they're i mean that's my contention is that they really don't have a policy or a plan that they in their plan was to put it off as much as possible and if you look at some of that evidence that was entered into the lawsuit they had in there and use you probably familiar with the case by now they've had letters to the barn door in greek sanitary district outlining the years and years rehabilitation that rids they had done over a decade have a plan or policy now there's obviously testimony at the trial from mr cantor stating that that was their concern but i don't think that there's enough evidence of a policy or a plan in place here to address that the sewer concerns i mean i think that it's it's more likely their plan was that put this off as long as possible and not do anything about it which is clearly and it conflicts with the statute requires them to keep their their property in a safe and safe manner as a condition eventually that the village simply did nothing in this case and which obviously didn't take into consideration clarke's or any of the other neighbors i also think that there's any evidence of really any discretion used in the period of the stores or there was no on no i don't think that was ever established when it was crushed i think it was established that there were flooding problems and that this should have been investigated at that point time and repaired but it wasn't so now i don't know if there's anybody thirteen and he said he testified he went back and on the day of the flood it was water sitting in the yard which is that it was designed to do and the next day it all the water was gone there's also photographs taken by the next door neighbor of that which i release it slowly and that's what they did after repairs were done it was working and mr king did testify to that so and in some i mean not to visit the legislature never intended to allow  the flood it seems the need at the villages is just stating that because mr cain didn't say the magic words the proximate cause is that he failed to establish that the flooding was caused by the blast the worst storms or what he did king supply the jury with enough information in the make that connection i've been accused of using ancient case law but the case law is still good and i think that it shows that these issues have been decided long time here that you know if it would appear was something that was going to be unfolded very spend suv i mean it supervisor he had to bring it in front of the board if it was a repair that was easy not expensive simple fix he could go on and do it himself that the oncoming winter so plowing truck close created from all of that the thought was the this is going to be treacherous travel on railroad street if we you know this right now let's wait until the weather breaks and we'll fix physically alter a site broke because the slabs would continue to move and then the college would be faced with the same tripping hazard notwithstanding its repair efforts again a decision was made to the off do we repair and now was  with you know with respect to repair work on the sioux worse that's something you see in case a time or two to really want it and he has applied budgetary concerns constraints that was the case and the the i don't think it's the timing necessarily the dictates whether or not it's especially near you policy decision making it's dad was there deliberation was there an affirmative decision making process was affirmative decision making process and we back here just quickly on the proximate cause rigidness hearing evidence where you had neighbors with functioning catch basins and we had no problems