by Ericka J. Thomas (Spring 2016)
For over one hundred years, the public duty rule has been used by local governmental entities in Illinois to fend off lawsuits from individual members of the public. The common-law “public duty rule” provided that a local governmental entity and its employees owed no duty of care to individual members of the general public to provide governmental services such as police and fire protection services. In a strongly divided decision, the Illinois Supreme Court recently struck down the public duty rule in Coleman v. East Joliet Fire Protection District (In re Estate of Coleman), 2016 IL 117952.
The Coleman case arose from a 9-1-1 call made by a woman in Will County claiming that she could not breathe. Paramedics were sent to her home and were told only that the nature of the call was for “unknown medical.” After arriving at the home and not getting an answer at the door, the paramedics tried to call the dispatcher back for more information. Due to an excessive amount of calls from severe weather in the area, dispatch was unable to provide additional information at the time the paramedics called. After consulting with their superior and deciding that they had no basis to force entry into the residence, the paramedics were ordered to return back to the street and left the residence.
After the paramedics left, the woman’s neighbors called her home and got a busy signal. The neighbors then called 9-1-1 to ask for paramedics to return to the home. The second crew of paramedics arrived at the home around the same time as the woman’s husband and entered the home to find the woman deceased from a massive heart attack. The woman’s family sued the 9-1-1 dispatchers and the responding fire protection district for her death. In finding that the public duty rule applied and that the agencies involved owed no duty of care to the woman as an individual member of the public, the trial court granted summary judgment in favor of all of the agencies.
The case eventually reached the Illinois Supreme Court which took the opportunity to address whether the public duty rule “remains viable” in Illinois. The court began its analysis of this issue by reviewing the historical background of state and local governmental immunity. The court traced the history of the public duty rule back to the U.S. Supreme Court case of South v. State of Maryland, 59 U.S. 396 (1855).
In South, a sheriff was sued for failing to protect a plaintiff from kidnapping. The U.S. Supreme Court determined that the sheriff’s duty to keep the peace was “a public duty.” The court in Coleman noted that the public duty rule was sparingly applied in Illinois until the Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11 (1959) case abolished local governmental immunity because governmental immunity was an absolute defense to liability.
The court initially noted that the public duty rule was not the equivalent of any type of sovereign immunity. This determination was based upon a conclusion that the public duty rule did not develop from the concept of immunity but rather, developed from the principle that the duty of the governmental entity to preserve the well-being of the community is owed to the public at large. The court acknowledged that the issue of duty is a separate and distinct issue from whether a defense of governmental immunity applies.
In fact, in Zimmerman v. Village of Skokie, 183 Ill.2d 30 (1998) the Illinois Supreme Court specifically noted that the distinction between immunity and a duty is crucial, because only if a duty is found is the issue of whether an immunity or defense is available considered. The court noted that the majority of states continue to adhere to the public duty rule despite the abolition of sovereign immunity and passage of immunity statutes.
However, even after the court acknowledged that it has consistently held that the public duty rule survived the abolition of sovereign immunity and the passage of the Tort Immunity Act, the court stated “…the time has come to abandon the public duty rule and its special duty exception.”
The court noted that departing from the long history of case law and abandoning the public duty rule was justified for three reasons. First, the jurisprudence has been muddled and inconsistent in the recognition and application of the public duty rule and its special duty exception. Second, application of the public duty rule is incompatible with the legislature’s grant of limited immunity in cases of willful and wanton misconduct. Third, 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 majority of the court concluded its opinion by stating that “…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.” The court invited the legislature to codify a public duty rule if it saw fit to do so. The court then reversed the summary judgment ruling of the trial court and remanded the matter back to the trial court for further proceedings.
Justice Freeman wrote a special concurring opinion. Justice Freeman agreed with the lead opinion, but his opinion was based upon a separate legal basis. Justice Freeman felt that the doctrine of sovereign immunity and the public duty rule were predicated on the same concern – the notion that when a municipality performs a governmental function, the service is provided to protect the general welfare.
Justice Freeman noted that the public duty rule is derived from the notion that a municipality cannot be held civilly liable for its failure to perform a duty owed to the general public. As such, “…it is unquestionably a rule of nonliability for civil damages, which is, at its core, the fundamental basis for sovereign immunity.” Justice Freeman further opined that the best way to balance the private and public interests at stake in assessing municipal tort liability is “scrupulous application of the immunity statutes enacted by the General Assembly.”
Justice Thomas (joined by Justices Garman and Karmier) issued a withering dissent from the majority decision, noting that twenty years ago the court specifically stated that it retained the public duty rule despite abolishing sovereign immunity in the Molitor case. Justice Thomas asserted that the majority’s decisions made a mockery of stare decisis. Justice Thomas then pointed out that the basis of the lead decision was specifically disavowed by five members of the court, noting that the dissent actually had more support than the lead decision.
Justice Thomas agreed with Justice Kilbride’s historical analysis of immunity and the public duty rule and said if his opinion had stopped there, he would have joined in. However, Justice Thomas then scathingly characterized the “reasons’ for Justice Kilbride’s opinion as transparent ex post rationalizations for a foregone conclusion. Justice Thomas mocked Justice Kilbride’s decision to depart from stare decisis and noted that under Justice Kilbride’s analysis, the common law of Illinois sits on the verge of wholesale collapse.
Justice Thomas meticulously dissected and disregarded each of the three reasons for Justice Kilbride’s decision. In noting that the Local Governmental Tort Immunity Act is nothing new, Justice Thomas stated that there is no justification to depart from the court’s prior consistent holdings that the public duty rule survived the passage of the Act.
The abolition of the public duty rule will unquestionably open up local governmental agencies to more lawsuits and more liability. Although these agencies still enjoy statutory immunities that may allow them to avoid liability, such immunities are only applicable in certain circumstances and for certain acts. It remains to be seen whether the Illinois General Assembly will heed the urging of the court and codify the public duty rule. In the meantime, plaintiffs will have a much easier time getting relief from the public coffers.