Publication: Suing certain governmental entities for willful and wanton misconduct just became easier—Illinois abandons the public duty rule
May 11th, 2016
Coleman v. East Joliet Fire
Protection District (In re Estate of
Coleman), 2016 IL 117952
On the evening of June 7, 2008, 58-year old Coretta Coleman called 911 because she was having difficulties breathing. Nine minutes later, the ambulance crew arrived at Coretta’s residence in Sugar Creek, an unincorporated area in Will County, Illinois. The paramedics did not enter Coretta’s house because the doors were locked and no one answered them from the inside of the house. The 911 dispatcher tried calling Coretta back, but Coretta’ phone line had a busy signal. The ambulance crew left Coretta’s house five minutes after they arrived.
A second ambulance was dispatched to Coretta’s house after 911 dispatch received calls from Coretta’s neighbors. Due to confusion about Coretta’s actual address, this second ambulance arrived at Coretta’s house 41 minutes after Coretta’s initial 911 call. The crew of the second ambulance entered the house because Coretta’s husband arrived home just in time to let them in. They found Coretta inside the house, but she was unresponsive. Coretta died of cardiac arrest soon after the second crew of paramedics reached her
Coretta’s estate filed a wrongful death and survival action alleging both negligence and willful and wanton misconduct against numerous defendants. The estate sued the East Joliet Fire Protection District and its emergency responders, Will County and its 911 operator, and the Orland Fire Protection District and its dispatcher. All counts alleging negligence were dismissed by the trial court because of various state immunity laws. However, the statutory immunity asserted by defendants did not shield them from willful and wanton misconduct, the second set of allegations contained in the plaintiff’s complaint.
With respect to the willful and wanton counts, the trial court reasoned that the common law public duty rule warrants summary judgment in favor of defendants. The public duty rule states that “local governmental entities owe no duty to individual members of the general public to provide adequate government services, such as police and fire protection.” Thus, the trial court used the public duty rule to block the plaintiff’s suit alleging willful and wanton misconduct from going forward, even though the state immunity laws would have permitted recovery. The appellate court affirmed.
Illinois Supreme Court analysis
In the plurality opinion, Justice Thomas L. Kilbride and three other Justices agreed on the holding, but only one Justice, Anne M. Burke, agreed with Justice Kilbride’s reasoning.
The issue before the court was the “continued viability of the public duty rule.” The opinion started with a historical overview of governmental tort immunity and the public duty rule. The court quoted extensively from Zimmerman v. Village of Skokie, 697 N.E.2d 699 (1998) to reinforce the point that this court has already ruled that the longstanding public duty rule is completely separate from any concepts of sovereign immunity. Consequently, the public duty rule was not affected by the abolishment of sovereign immunity in Illinois, and it has coexisted with the statutory immunity enacted by the legislature. Nevertheless, the court determined that “the legislature’s enactment of statutory immunities has rendered the public duty rule obsolete.” As a result of this Opinion, Illinois became the seventh state to abolish the public duty rule.
The Illinois Supreme Court removed the gatekeeping layer for plaintiffs who sue local governmental entities for willful and wanton misconduct. The decision justifies the court’s departure from stare decisis and abandoning both the public duty rule and its special duty exception with the following three reasons:
First, the case law “has been muddled and inconsistent” in application of the rule. The court explained that the question of duty and immunity are two separate issues and the question of whether a defendant owed plaintiff a duty should be asked first. However, the duty inquiry was irrelevant in cases where a statute provided immunity from civil liability, and the immunity inquiry was irrelevant when a local governmental entity owed no duty to begin with. While some courts began the analysis by asking if there was a duty, other courts skipped the duty analysis and first looked to the immunity statute to dispose of a case. This, according to court, “unduly complicated” the application of concepts of duty and immunity.
Second, if the state legislature permits a plaintiff to recover from a public entity for willful or wanton misconduct, the judicially created public duty rule should not stand in the plaintiff’s way. Otherwise, the public duty rule would override the scope of statutory immunities and shield from civil liability those that legislature decided to leave exposed.
Finally, “the determination of public policy is primarily a legislative function and the legislature’s enactment of statutory immunities has rendered the public duty rule obsolete.” The opinion ended with a reminder that if the legislature wants the public duty rule, it is welcome to reenact it via a statute, just as other states have done.
Two Justices, Justice Freeman and Theis, joined in special concurrence. They wanted to abandon the public duty rule and its special duty exception, but for different reasons. Under their analysis, the public duty rule became obsolete with the abolishment of sovereign immunity. In the view of these Justices, sovereign immunity and the public duty rule are not separate concepts as the Kilbride’s opinion concludes because “the public duty rule is firmly rooted in the concept of sovereign immunity.” In 1970, the ratification of Illinois Constitution “abolished all forms of governmental immunity, except where provided for by legislative action.” Thus, the public duty rule, the tool that judiciary had used to evaluate municipal tort liability, disappeared when the legislature, as opposed to courts, was vested with immunity wielding powers.
Justice Thomas, Chief Justice Garman and Justice Karmeier joined in a dissenting opinion. Justice Thomas agreed with the lead opinion that this court has repeatedly held that the public duty rule remained unaffected by the abolishment of sovereign immunity and statutory enactments related to grants of immunity. That is, the public duty rule has been used by courts independently of other developments. However, according to Justice Thomas, there is no good reason, let alone a compelling reason, why the court should abolish the public duty rule now and disturb the stare decisis.
Justice Thomas wrote that the position taken by Justice Kilbride and the concurring Justices makes “a mockery of stare decisis.” Justice Thomas pointed out that the five Justices of the Illinois Supreme Court did not agree with Justice Kilbride’s reasoning. In effect, the dissent has support of more Justices that the lead opinion does. Consequently, the lead opinion should not be treated as majority opinion. Justice Thomas evaluated all three reasons cited by Justice Kilbride for abandoning the public duty rule cited in the lead opinion.
First, just because some courts assumed there was a duty and disposed of a case on immunity ground, does not mean that there were any inconsistencies in application of the law. Courts engage in similar ‘“even if”’ analysis all the time to expedite the review by assuming that some allegations, even if true, will not save the plaintiff’s cause of action. According to Justice Thomas, “if such practice renders . . . bodies of law ‘muddled and inconsistent’ to such a degree that the protections of stare decisis no longer operate, then the common law of Illinois sits on the verge of wholesale collapse.”
Then, Justice Thomas found two problems with the second reason outlined in the lead opinion. Namely, if the state legislature permits a plaintiff to recover from a public entity for willful or wanton misconduct, the judicially created public duty rule should not stand in the plaintiff’s way.
The first problem with this reason is that the issue of whether the public duty rule remained viable in Illinois despite statutory immunity developments has already been decided. This court has recently reiterated this stance in Harinek v. 161 North Clark Street Ltd. Partnership, 692 N.E.2d 1177 (1998). For Justice Killbride to hold otherwise would require a departure from the principles of stare decisis. Such departure requires ‘“articulable reasons’” and should only happen when the court determines it is necessary to ‘“bring its decisions into agreement with experience and newly ascertained facts.” There is nothing new with respect to state immunity laws that was not there when the Illinois Supreme Court decided Harinek. Thus, the lead opinion cannot use legislative’s enactments, which predate Harinek, as newly ascertained facts that warrant departure from stare decisis. In other words, what the lead opinion cites as a reason to depart from stare decisis is not new and had existed when the Harinek court decided that public duty rule is well and alive.
The second problem with what the lead opinion cites as reason number two is that the statutory carve-out for willful and wanton misconduct is just that: a statutory exception dealing with the issue of statutory immunity and does not reach the issue of the duty that the common law public duty rule controls. It appears that Justice Thomas was trying to say that the statutory exception does not affect the application of the public duty rule because the exception does not even become relevant until later in the analysis once the question of duty is resolved. This argument is even stronger when you take into consideration the lead opinion’s stance that the question of duty is completely separate and distinct from the question of duty, and that question of duty should precede the immunity analysis.
Lastly, the second part of the third reason cited by the lead opinion states that the public duty rule lost its viability due to enactment of statutory immunities. According to Justice Thomas, this reason is problematic because in essence it indicates that the public duty rule did not survive the enactment of Tort Immunity Act. This is contrary to what Justice Kilbride concedes in his opinion when he writes that the issue of duty and immunity are separate and distinct inquiries and that this court has consistently held that “the public duty rule survived the abolition of sovereign immunity and passage of the Tort Immunity Act.”
Additionally, it is interesting that Justice Thomas notes in a footnote that the lead opinion failed to point out that “at the precise time Corretta Coleman called the Will County 911 operator, this part of Illinois was in the midst of a major tornado outbreak and disaster event” with several EF2 tornadoes “causing injuries and widespread damage and destruction.” He seems to find this “convenient[ly] and conspicuous[ly]” omission of that “highly relevant fact” very curious.
If the state laws do not provide immunity from civil liability for willful and wanton misconduct, you do not have to worry about the public duty rule which could otherwise prevent the suit absent the applicability of a limited exception. As far as municipal or fire district entities are concerned, unless there is action by the legislature to enact immunity, they will now be exposed to traditional tort principles.