United States: Illinois Supreme Court Abolishes Long-Standing Public Duty Rule

Mark Burkland is Senior Counsel and Peter Friedman is a Partner in Holland & Knight's Chicago office

HIGHLIGHTS:

  • A divided Illinois Supreme Court has abolished the common-law standard that a local governmental body and its employees, when providing services like police and fire services, do not owe a duty of care to individual members of the public but instead owe a duty only to the public generally.
  • The decision leaves a gap in protection of public employees against claims of willful and wanton conduct.
  • The Illinois Legislature can act to reinstate the public duty rule.

A divided Illinois Supreme Court issued its decision in Coleman v. East Joliet Fire Protection District et al., 2016 IL 117952, on Jan. 22, 2016, abolishing the common-law standard that a local governmental body and its employees, when providing services like police and fire services, do not owe a duty of care to individual members of the public but instead owe a duty only to the public generally. This standard, widely known as the "public duty rule," was conceived by the U.S. Supreme Court more than 150 years ago and has been firmly in place in Illinois for more than 50 years.

The public duty rule, which prevents individual citizens from suing public employees under most circumstances, largely overlaps the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101 et seq., and several other Illinois laws that include immunity provisions. But, unlike the public duty rule, those laws do not protect public employees against claims of willful and wanton conduct. The abolition of the public duty rule thus creates a gap of sorts – leaving public employees subject to claims of willful and wanton conduct.

The lead opinion of the Coleman Court, joined only by its author Justice Thomas Kilbride and Justice Anne Burke, determined that the public duty rule should be abolished because (1) the rule has been "muddled" by inconsistent court rulings, (2) the rule is incompatible with Illinois immunity laws that carve out willful and wanton conduct, and (3) the rule is obsolete in light of those statutory immunities.

Two justices specially concurred with the lead decision, agreeing that the public duty rule should be abolished but for reasons entirely different from the reasons stated in the lead opinion. The concurring opinion was written by Justice Charles Freeman and joined by Justice Mary Jane Theis.

The three remaining justices dissented in a strongly worded opinion written by Justice Robert Thomas and joined by Chief Justice Rita Garman and Justice Lloyd Karmeier.

Immediate Impacts

The Coleman decision likely will increase the number and duration of lawsuits filed against public employees, despite the immunity provisions of the Tort Immunity Act. In addition, public employees now are at risk of liability for willful and wanton conduct, unless the Illinois Legislature acts to fill that gap. Additionally, public employees rightly rely on consistency in the court's decisions on critical issues such as immunity and liabilities. The court's willingness here to abandon a long-held precedent adds unfortunate uncertainty to these and other matters important to local governments. The impacts of Coleman are discussed further below.

Difficult Facts

The Coleman case arose out of very unfortunate facts: In June 2008, Coretta Coleman called 911 from her home in Will County and told the operator she could not breathe and needed an ambulance. The operator transferred the call to a dispatcher, but did not wait for the dispatcher to answer before hanging up. The dispatcher took the call and tried to ask questions of the caller, but Coleman did not answer. The dispatcher hung up and redialed Coleman's number twice, but got a busy signal each time. The dispatcher placed Coleman's call in line for an ambulance response, as an "unknown medical emergency." (At the time of Coleman's call, Will County was experiencing a major outbreak of tornadoes that caused injuries and widespread property damage.)

A few minutes later, an ambulance was dispatched to the Coleman residence. The crew rang the doorbell and pounded on the door, but got no response. The crew called a supervisor who ordered them to leave the residence and go back into service. The crew departed approximately 5 minutes after it arrived.

Shortly thereafter, Coleman's neighbor, who had spoken to the ambulance crew, called 911 and reported an emergency at "1600 Sugar Creek Drive." The neighbor talked to the same operator who had answered the call from Coleman. The operator called the same dispatcher as before, and this time talked to the dispatcher about the call and gave the dispatcher the address "1600 Sugar Creek." The dispatcher sent an ambulance to "1600 Sugar Creek Court" instead of 1600 Sugar Creek Drive (in the same subdivision). When the ambulance crew discovered there was no 1600 Sugar Creek Court, the crew called the dispatcher for an address check.

While the dispatcher was attempting to secure the correct address, the ambulance crew found 1600 Sugar Creek Drive – 41 minutes after Coleman's initial call. The crew knocked on the door but received no answer. Coleman's husband then arrived home and let the crew into the house. The crew found Coleman unresponsive, and, after transporting her to the hospital, she was pronounced dead of cardiac arrest.

Trial and Appellate Court Decisions

In the lawsuit brought on behalf of Coleman's estate, the defendants filed motions to dismiss all counts of the complaint, claiming immunity under the Emergency Medical Services Systems Act, 210 ILCS 50/3.150, and the Emergency Telephone System Act, 50 ILCS 750/15.1. The plaintiff did not the contest the motions as they related to counts alleging negligence by the defendants, and the court dismissed those counts. The court denied the motions related to counts alleging willful and wanton conduct.

The defendants later filed motions for summary judgment on the willful and wanton conduct counts, arguing both that they had no duty under the public duty rule and that they had immunity under the two laws noted above. The court granted those motions, applying the public duty rule. The court did not examine the issues of statutory immunity.

The appellate court affirmed the rulings of the trial court.

Illinois History Regarding Immunity and Public Duty Rule

In the Court's lead opinion, Justice Kilbride writes that the primary issue before the Court is whether the public duty rule remains viable. He begins his analysis by examining at great length the history of governmental immunity in Illinois. He concludes by noting that the Court effectively abolished common-law immunity in the well-known case titled Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11 (1959). And he notes that the Illinois Legislature responded to Molitor by enacting the Tort Immunity Act and other immunity provisions such as the two laws noted above.

Justice Kilbride then reviews the history of the public duty rule in Illinois. He discusses at length the distinction between sovereign immunity, which exists regardless of the existence of any duty, and the public duty rule, which "is not rooted in sovereign immunity . . . "[but] developed independently and separately from concepts of governmental immunity." 2016 IL 117952, p. 14. The issue of duty, he writes, "is a separate and distinct issue from whether a defense of governmental immunity applies." Id. He concludes "the time has come to abandon the public duty rule ...." Id. at p. 17.

Stare decisis vs. Obsolescence

The lead opinion briefly addresses the issue of stare decisis, the policy of courts to honor precedents set in their previous decisions and not disturb settled points. Justice Kilbride quotes at length from the Court's decision in People v. Sharpe, 216 Ill. 2d 481 (2005), which strongly affirms the importance of stare decisis. He nevertheless concludes that a departure from stare decisis is warranted in Coleman because:

(1) the jurisprudence has been muddled and inconsistent in the recognition and application of the public duty rule and its special duty exception; (2) application of the public duty rule is incompatible with the legislature's grant of limited immunity in cases of willful and wanton misconduct; and (3) determination of public policy is primarily a legislative function and the legislature's enactment of statutory immunities has rendered the public duty rule obsolete. Id. at p. 18.

He concludes by stating "the underlying purposes of the public duty rule are better served by application of conventional tort principles and the immunity protection afforded by statutes than by a rule that precludes a finding of a duty on the basis of the defendant's status as a public entity." Id. at p. 20.

Special Concurrence

In an opinion specially concurring with the lead opinion, Justice Freeman disagrees with the lead opinion's distinction between sovereign immunity and the public duty rule. Rather, he writes, they are "predicated on exactly the same concern – the notion that when a municipality performs a governmental function, the service is provided to protect the general welfare of the public. ... [T]he public duty rule has always been predicated on the very same basis as the concepts underlying local governmental immunity" Id. at p. 22.

The public duty rule can be abolished, Justice Freeman concludes, not for the conflict between immunity and the rule, but rather because "the passage of various statutes providing for certain immunities with regard to official conduct of local governmental entities constitutes a comprehensive scheme for balancing the private and public interests at stake in assessing municipal tort liability." Id. at 23.

Dissent

In a bluntly worded dissenting opinion, Justice Thomas takes the lead opinion to task on the issue of stare decisis. He writes that the three reasons given by Justice Kilbride for the departure are "not compelling, not in the least." Id. at p. 26.

The first reason – expressing concern about "muddled and inconsistent opinions" – is simply incorrect, he writes. Id. at pp. 26-27. The court decisions are clear enough on the application of the public duty rule.

The second reason – that the public duty rule is inconsistent with the statutory immunity carve-out for willful and wanton conduct – is insufficient first because this circumstance has existed for decades and there are no new facts or circumstances that demand change, and second because immunity is fundamentally different in theory and application from a common-law duty and thus there is no inconsistency. Id. at pp. 28-29.

The third reason – that the Illinois Legislature has enacted statutory immunities that render the public duty rule obsolete – is contrary to the Court's consistent holding that the public duty rule has survived the passage of the Tort Immunity Act. Justice Thomas writes that the survival of the public duty rule is based on the distinction between the issue of whether a duty is owed and the issue of whether there is governmental immunity. Under sovereign immunity, a governmental body is immune from tort liability regardless of any apparent duty. In contrast, under the public duty rule, the tort liability never existed precisely because no duty existed other than to the general public. Id. at pp. 29-30.

Justice Thomas disagrees with the concurring opinion for two principle reasons: Justice Freeman ignores the issue of stare decisis and concludes that there is no meaningful distinction between sovereign immunity and the public duty rule, a position Justice Thomas rejects as noted above.

The Lasting Impact

Many personal injury complaints are brought against public employees despite the public duty doctrine, and many of those complaints include allegations not only of negligence but also of willful and wanton conduct. The abolition of the public duty doctrine seems nearly certain to result in a significant increase in claims of willful and wanton conduct, however far-fetched they may be. As a result, fewer lawsuits will be resolved by motions to dismiss, lawsuits will be more expensive to defend when discovery is required to support motions for summary judgment, and public employees are not protected against liability for willful and wanton conduct. These are serious matters.

On the other hand, concern that public employees are now at immense risk of liability may be overstated. A claim of willful and wanton conduct demands proof of very bad conduct. "Willful and wanton" often is defined as requiring conduct that was intentional, exhibits reckless disregard for the safety of others, and includes actions taken in conscious disregard of or reckless indifference to the consequences of the actions. Most public employees do not engage in willful and wanton conduct. For example, it would be very surprising if, on remand, the trial court in the Coleman case rules that the defendants acted willfully and wantonly.

In any case, the Illinois Legislature has the power to close the liability gap created by the abolition of the public duty rule. The Legislature may codify the rule or amend immunity laws to extend to willful and wanton conduct under certain circumstances. If the Legislature takes this issue up, it will be interesting to hear the debate. There certainly will be strong support for a legislative response to the Coleman decision. There may also be voices for the position that the Tort Immunity Act is sufficient in its current form.

Was the Tort Immunity Act's carve-out of willful and wanton conduct drafted that way because legislators knew the public duty rule covered that conduct? We may find out.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.