Roark argues that the trial court erred by dismissing theportion of her amended complaint requesting damages pursuant to sections 2-619(a)(5) and (a)(9) as being barred by the applicationof the statute of limitations and the general immunity provisionsof the Tort Immunity Act. Roark contends that the Tort ImmunityAct does not apply to drainage districts and, therefore, cannot bar her amended complaint. We conclude that the Tort Immunity Actapplies to drainage districts; however, questions of fact existthat preclude dismissal at this early stage in the litigation.

The Tort Immunity Act states that its purpose "is toprotect local public entities and public employees from liabilityarising from the operation of government." 745 ILCS 10/1-101.1(a)(West 1992). Therefore, the Tort Immunity Act applies to all localpublic entities and their employees. By definition, a local publicentity includes counties, townships, municipalities, municipalcorporations, school districts, school boards, educational serviceregions, regional boards of school trustees, community collegedistricts, community college boards, forest preserve districts,park districts, fire protection districts, sanitary districts,museum districts, and all other local government bodies. 745 ILCS10/1-206 (West 1992). Although drainage districts are notspecifically listed as public entities by statute, these districtsundoubtedly fit within the catchall category of "other localgovernment bodies."

Drainage districts are "bod[ies] politic and corporate"(70 ILCS 605/3-24 (West 1992)), public corporations having suchpowers as the legislature has expressly conferred, or as arenecessarily implied, by statute (Nutwood Drainage & Levee Districtv. Mamer, 10 Ill. 2d 101, 107, 139 N.E.2d 247, 252 (1956)). A bodypolitic is defined as a "politically organized, collective body ofa nation or State." People v. Asbestospray Corp., 247 Ill. App. 3d258, 263, 616 N.E.2d 652, 656 (1993). "[D]rainage districts arelocal subdivisions of the [s]tate, created by law for the purposeof administering certain functions of local government ***." People ex rel. Croft v. Karr, 244 Ill. 374, 385, 91 N.E. 485, 488(1910). Therefore, drainage districts fall within the purview ofthe Tort Immunity Act.

Defendants next argue that the Tort Immunity Actinsulates them from liability for failing to maintain or repair thedrainage system because that decision was discretionary. Roarkcounters, claiming that the defendants' duties were ministerialacts to which immunity did not attach.

Drainage districts are "not liable for *** injur[ies]resulting from an act or omission of its employee where theemployee is not liable." 745 ILCS 10/2-109 (West 1992). Moreover,a public employee serving in a position that requires him todetermine policy or exercise discretion is not liable for injuriesresulting from acts or omissions in determining such policy whenexercising such discretion, even when such discretion is abused. 745 ILCS 10/2-201 (West 1992). Section 2-201 of the Tort ImmunityAct codifies the common-law distinction between discretionary andministerial duties. Synder v. Curran Township, 167 Ill. 2d 466,473, 657 N.E.2d 988, 992 (1995). Despite this codification, wecontinue to employ the common-law definitions of discretionary andministerial functions. Synder, 167 Ill. 2d at 473, 657 N.E.2d at992. The distinction between discretionary and ministerialfunctions is not determined by a precise formula. Synder, 167 Ill.2d at 474, 657 N.E.2d at 992. Therefore, "the determinationwhether acts are discretionary or ministerial must be made on acase-by-case basis." Synder, 167 Ill. 2d at 474, 657 N.E.2d at993-94.

Notwithstanding the ad hoc nature of these determinations, "[d]iscretionary acts are those which are unique to theparticular public office and involve the exercise of judgment,while ministerial acts are those performed in a prescribed manner,in obedience to the mandate of legal authority, without regard tothe exercise of discretion as to the propriety of the acts beingdone." Corning v. East Oakland Township, 283 Ill. App. 3d 765,768, 670 N.E.2d 350, 352 (1996). Stated another way, discretionaryacts are those that require personal deliberation, decision, andjudgment, while ministerial acts are those amounting to theperformance of a task in accordance with an order. Bonnell v.Regional Board of School Trustees, 258 Ill. App. 3d 485, 489, 630N.E.2d 547, 549 (1994). Immunity will not attach unless the injuryalleged results from an act performed or omitted by the publicentity employee in determining policy and in exercising discretion. Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d335, 341, 692 N.E.2d 1177, 1181 (1998).

Defendants argue:

"Commissioners of drainage districts, ascommissioners of highways, who have in goodfaith, to the best of their ability, exercisedtheir judgment and used the means which thelaw provides in the construction and preservation of the work committed to their charge,are not liable for an injury occurring withoutany intentional neglect of duty on their part***. Binder v. Langhorst, 234 Ill. 583, 587,85 N.E. 400, 402 (1908)."

Defendants, therefore, argue that, in good faith and to the best oftheir ability, they exercised their judgment in determining thatRoark's request for repairs was unwarranted. Defendants overlookthe fact that, by statute, the Illinois legislature has imposedupon drainage district commissioners and, therefore, on drainagedistricts, a duty to "keep the drains, levees, pumping plants[,]and other works of the district in operation and repair." 70 ILCS605/4-15 (West 1992). Even the title of section 4-15 emphasizesthis duty: "Duty to keep system in repair--Minor improvements." 70 ILCS 605/4-15 (West 1992).

Moreover, we have stated previously:

"Arguably, the decision not to maintain orinspect *** property was an act of discretion,but this is 'an impermissibly expansive definition of discretionary immunity.' [Citation.] Every failure to maintain property could bedescribed as an exercise of discretion underdefendants' expansive approach. We do notbelieve that the legislature intended such aresult, otherwise it would not have codifiedthe common[-]law duty to maintain property***." Corning, 283 Ill. App. 3d at 768-69,670 N.E.2d at 353.

In the present case, we do not believe that the legislatureintended to permit drainage commissioners to insulate theirnegligence by automatically labeling every failure to repair adrainage system as a "discretionary" decision. We conclude,however, that the issue of whether the district's decision not torepair the system was discretionary or ministerial presentsquestions of fact that need to be resolved in the trial court.

Further, in their motion to dismiss Roark's amendedcomplaint and in their appellate brief, defendants claim that thereal property in question had been declared a wetland, whichprevented them from repairing the drainage system. Specifically,defendants argue that (1) the land described in Roark's complainthad been declared a wetland; (2) landowners must obtain a permitfrom the Army Corps of Engineers before dredging or fillingwetlands; (3) the land cannot be developed without a permit; (4) asa result of this wetland status, defendants were under no duty andhad no authority to drain the land; and (5) defendants cannot beheld liable for failing to drain this land.

Accordingly, defendants argue that their decision not torepair or clean up the drainage system was based, in part, on"their reasonable belief and understanding that to perform thiswork would subject the [d]istrict and its commissioners to criminaland civil liability from the Soil Conservation Service." Defendants admit, however, that under this section they could have filedfor a permit to conduct any necessary work on the drainage system. Defendants chose not to apply for such a permit. Moreover, thisargument is not an appropriate ground on which to dismiss Roark'scomplaint, but also presents questions of fact to be resolved inthe trial court.

Alternatively, defendants argue that, even if they aresubject to liability because their duties are classified as beingministerial, Roark's claim is barred by the Tort Immunity Act'sone-year statute of limitations. 745 ILCS 10/8-101 (West 1992). Roark, however, claims that a five-year statute of limitationsapplies for private actions brought against the drainage districts. 70 ILCS 605/2-5; 735 ILCS 5/13-205 (West 1992).

Section 8-101 of the Tort Immunity Act states:

"No civil action may be commenced in anycourt against a local entity or any of itsemployees for any injury unless it is commenced within one year from the date that theinjury was received or the cause of actionaccrued." 745 ILCS 10/8-101 (West 1992).

The Drainage Code, however, states that "[t]he provisions of theCivil Practice Law and all existing and future amendments andmodifications thereof *** shall apply to all proceedings hereunder." 70 ILCS 605/1-7 (West 1992). The Code of Civil Procedure,in turn, provides for a five-year statute of limitations wheninstituting an action "to recover damages for an injury done toproperty, real or personal." 735 ILCS 5/13-205 (West 1992). Therefore, this court must determine which of these conflictingprovisions applies to the present case.

Traditionally, the decision as to which of two conflicting statutes controlled hinged on determining which provision wasmore specifically applicable to the individual case. "'[W]herethere are two statutory provisions, one of which is general anddesigned to apply to cases generally, and the other is particularand relates to only one subject, the particular provision mustprevail.'" Hernon v. E.W. Corrigan Construction Co., 149 Ill. 2d190, 195, 595 N.E.2d 561, 563 (1992), quoting Bowes v. City ofChicago, 3 Ill. 2d 175, 205, 120 N.E.2d 15, 31 (1954).

To determine which one of two conflicting provisions morespecifically addresses a particular matter, courts have typicallylooked to the nature of the plaintiff's action and the injurysustained. See Bertolis v. Community Unit School District No. 7,283 Ill. App. 3d 874, 880, 671 N.E.2d 79, 83 (1996) (determiningthat the limitations period for personal injury actions brought byminors that accrued during minority governed the plaintiff's claimbecause it more specifically addressed the plaintiff and the natureof the plaintiff's injury than the Tort Immunity Act); Zimmer v.Village of Willowbrook, 242 Ill. App. 3d 437, 442, 610 N.E.2d 709,713 (1993) (holding that the limitations period for action broughtagainst a body politic relating to acts or omissions in construction is more specific than the Tort Immunity Act); Walsh v. Barry-Harlem Corp., 272 Ill. App. 3d 418, 426, 649 N.E.2d 614, 619 (1995)(holding the medical malpractice limitation statute more applicablethan the limitations period contained in the Consumer Fraud andDeceptive Business Practices Act (Ill. Rev. Stat. 1989, ch. 1211/2, par. 270a(e), because the malpractice statute applied only tomalpractice action whereas the latter applied to a variety ofcases); Desai v. Chasnoff, 146 Ill. App. 3d 163, 167, 496 N.E.2d1203, 1205 (1986) (holding the malpractice limitation statute moreapplicable than that contained in the Uniform Commercial Code--Sales (Ill. Rev. Stat. 1983, ch. 26, par. 2-725(1)), because theformer applies only to a particular claim and the latter applies toall breaches of contract for sale); Cleaver v. Marrese, 253 Ill.App. 3d 778, 782-83, 625 N.E.2d 1129, 1132-33 (1993) (holding themedical malpractice limitations period, rather than the TortImmunity Act's limitations period, more specifically applied tomalpractice actions).

Recently, however, the Supreme Court of Illinoisevaluated the "more specifically applicable" distinction when twolimitation statutes apply to a single cause of action. In Tosadov. Miller, 188 Ill. 2d 186, 720 N.E.2d 1075 (1999), the supremecourt addressed the issue of whether the one-year limitationsperiod of the Tort Immunity Act (745 ILCS 10/8-101 (West 1996)) orthe two-year limitations period for medical malpractice (735 ILCS13-212(a) (West 1992)) applied to a medical malpractice claimagainst a county hospital. Tosado, 188 Ill. 2d at 189, 720 N.E.2dat 1077. The supreme court issued a severely split pluralityopinion in which only one justice concurred without furtherqualification. Two justices concurred in the result but wroteseparate special concurrences, explaining their rationale. Tosado,188 Ill. 2d at 197-98, 198-200, 720 N.E.2d at 1082, 1082-83(Freeman, C.J., specially concurring; Heiple, J., also speciallyconcurring). The other three justices dissented. Tosado, 188 Ill.2d at 200, 201-11, 720 N.E.2d at 1083, 1083-88 (Harrison, J.,dissenting; McMorrow, J., also dissenting, joined by Rathje, J.).

Writing for the plurality, Justice Miller reasoned asfollows:

"In enacting section 8-101 of the TortImmunity Act, we believe, the legislatureintended to protect a specific class of defendants, local governmental entities and theiremployees. Thus, in medical malpracticeactions against local governmental entities ortheir employees the focus should be on thedefendants rather than the cause of action orthe type of injuries sustained by the plaintiffs.

By focusing on the category of defendantsat issue in this case, it is clear that section 8-101 of the Tort Immunity Act is morespecific than section 13-212 of the Code ofCivil Procedure. Section 8-101 specificallyapplies to defendants which are local entitiesand the employees of those entities which area more specific category of defendant withinthe broader group of any physician, dentist,registered nurse[,] or hospital described insection 13-212(a). Because section 8-101 ofthe Tort Immunity Act is the more specificstatute when considering causes of actionagainst local governmental entities and theiremployees, we believe the one-year limitationprovision of section 8-101 of the Tort Immunity Act applies to actions against thosedefendants." Tosado, 188 Ill. 2d at 195, 720N.E.2d at 1080-81.

In their separate concurrences, then Chief Justice Freeman andJustice Heiple both agreed that the one-year statute of limitationsin section 8-101 of the Tort Immunity Act applied. Tosado, 188Ill. 2d at 197-98, 720 N.E.2d at 1082 (Freeman, C.J., speciallyconcurring; Heiple, J., also specially concurring). Both justices,however, rejected the plurality's characterization that the statuteof limitations for the Tort Immunity Act was more specific thanthat for medical malpractice claims. Both justices concluded that"to the extent that section 8-101 is more general than section 13-212(a), this is one of those instances where "'"the legislatureintended to make the general act controlling."'" Tosado, 188 Ill.2d at 199, 198, 720 N.E.2d at 1082-83, 1082 (Heiple, J., alsospecially concurring; Freeman, C.J., concurring and joining inJustice Heiple's special concurrence on this point), quoting Stonev. Department of Employment Security Board of Review, 151 Ill. 2d257, 266, 602 N.E.2d 808, 812 (1992), quoting 2B N. Singer,Sutherland on Statutory Construction