Coleman v. East Joliet Fire Protection District , 2016 IL 117952 ( 2016 )

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Supreme Court Date: 2016.02.29 11:14:33
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Coleman v. East Joliet Fire Protection District, 2016 IL 117952
Caption in Supreme MARCUS COLEMAN, as Successor Adm’r of the Estate of Coretta
Court: Coleman, Deceased, Appellant, v. EAST JOLIET FIRE
PROTECTION DISTRICT et al., Appellees.
Docket No. 117952
Filed January 22, 2016
Decision Under Appeal from the Appellate Court for the Third District; heard in that
Review court on appeal from the Circuit Court of Will County, the Hon.
Michael J. Powers, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Roman R. Okrei, of Lockport, for appellant.
Appeal
Stephen H. Dinolfo and Ericka J. Thomas, of Ottosen Britz Kelly
Cooper Gilbert & Dinolfo, Ltd., of Naperville, for appellees East
Joliet Fire Protection District, Louis Helis and Scott Mazor.
Kevin J. Clancy, Martin W. McManaman and Patrick R. Moran, of
Lowis & Gellen LLP, of Chicago, for appellees Will County and
Laurie Zan.
Clausen Miller P.C., of Chicago (Kimbley A. Kearney, Edward M.
Kay, Paul X. Bozych and Timothy F. Jacobs, of counsel), for
appellees Orland Fire Protection District and Eric Johnson.
Deidre Baumann, of Baumann & Shuldiner, of Chicago, for amicus
curiae Illinois Trial Lawyers Association.
Jon Yambert and Rebecca Fozo, of Chilton Yambert Porter LLP, of
Chicago, for amicus curiae Intergovernmental Risk Management
Agency.
Scott L. Howie, of Pretzel & Stouffer Chartered, of Chicago, for
amicus curiae Illinois Association of Defense Trial Counsel.
James S. Sinclair, of Stobbs, Sinclair & Associates, Ltd., of Alton,
Michael Resis, of SmithAmundsen LLC, and James J. Roche and
Lance J. Sherry, of James J. Roche & Associates, all of Chicago, for
amici curiae Illinois Association of Fire Protection Districts et al.
Roger Huebner, of Springfield, James J. Powers, of Clark, Baird,
Smith LLP, of Rosemont, and Todd K. Hayden and Kenneth M.
Florey, of Robbins Schwartz, of Mokena, for amici curiae Illinois
Municipal League et al.
Thomas G. DiCianni, of Ancel, Glink, Diamond, Bush, DiCianni &
Krafthefer, P.C., of Chicago (David Lincoln Ader, of counsel), for
amici curiae Municipal Insurance Cooperative Agency and McHenry
County Municipal Risk Management Agency.
Justices JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Justice Burke concurred in the judgment and opinion.
Justice Freeman specially concurred, with opinion, joined by Justice
Theis.
Justice Thomas dissented, with opinion, joined by Chief Justice
Garman and Justice Karmeier.
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OPINION
¶1 The common-law “public duty rule” provides that a local governmental entity and its
employees owe no duty of care to individual members of the general public to provide
governmental services such as police and fire protection services. See Huey v. Town of Cicero,
41 Ill. 2d 361, 363 (1968). In this appeal, we address the continued viability of the public duty
rule in Illinois.
¶2 A wrongful death and survival action was filed on behalf of the estate of Coretta Coleman
against defendants, East Joliet Fire Protection District1 and its ambulance crew, Louis Helis
and Scott Mazor; Will County 2 and its 911 operator, Laurie Zan; and the Orland Fire
Protection District,3 also known as Orland Fire District and doing business as Orland Central
Dispatch, and its emergency medical dispatcher, Eric Johnson. Coleman alleged that
defendants’ negligent and/or willful and wanton acts and omissions deprived Coretta of a
chance to survive and caused her pain and suffering.
¶3 The circuit court of Will County granted summary judgment in favor of all defendants,
finding that the public duty rule applied and that defendants owed Coretta no special duty. The
appellate court affirmed. 2014 IL App (3d) 120583-U. We allowed plaintiff’s petition for leave
to appeal. We now reverse and remand.
¶4 BACKGROUND
¶5 Coretta Coleman and her husband, Stanley, lived in an unincorporated area of Will County
called Sugar Creek. In June 2008, all 911 calls from the Sugar Creek area were initially routed
to the Laraway Public Safety Access Point, a police dispatch center operated by the Will
County sheriff’s office that handled only police emergencies. The East Joliet Fire Protection
District provided fire and ambulance services to the Sugar Creek area and contracted with the
Orland Fire Protection District for dispatching those services. All medical emergency calls
from the Sugar Creek area were transferred from the Laraway Public Safety Access Point to
Orland Central Dispatch, whose operators then dispatched ambulances operated by the East
Joliet Fire Protection District.
¶6 The record indicates that on June 7, 2008, at 6:10 p.m., Coretta called 911. She was
connected to the Will County 911 operator on duty, Laurie Zan. Coretta told Zan that she could
not breathe and needed an ambulance. Coretta gave her address as “1600 Sugar Creek Drive”
in Joliet, and told Zan to “hurry.” Zan told Coretta to hold and then transferred the call to
Orland Central Dispatch. Eric Johnson, an emergency medical dispatcher for Orland Central
Dispatch, received Coretta’s transferred 911 call from Zan. Although the written procedures
required Zan to communicate the nature of Coretta’s emergency call, Zan hung up as soon as
the call was transferred and did not speak to Johnson. Johnson asked Coretta some questions
1
East Joliet Fire Protection District is a municipal corporation authorized and organized under the
Fire Protection District Act (70 ILCS 705/1 et seq. (West 2006)).
2
Will County is a “body politic and corporate.” See (55 ILCS 5/5-1001 (West 2006)) (Counties
Code).
3
Orland Fire Protection District is a municipal corporation authorized and organized under the Fire
Protection District Act (70 ILCS 705/1 et seq. (West 2006)).
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but received no response. Johnson did not know whether anyone was on the line or whether the
call was dropped. Johnson hung up and called Coretta’s number twice but received a busy
signal. Johnson testified that dispatchers are trained to call the agency that transferred the 911
call if more information is needed, but he did not. Johnson identified the nature of the call as an
“unknown medical emergency” and placed the call in line for an ambulance dispatch at 6:13
p.m.
¶7 At 6:16 p.m., East Joliet Fire Protection District ambulance 524, crewed by Louis Helis
and Scott Mazor, was dispatched to the Coleman residence. Helis and Mazor were given
Coretta’s address and told that the 911 call involved an “unknown emergency.” Helis and
Mazor arrived at the Coleman residence at 6:19 p.m. They were unable to enter the home
because the doors were locked. They rang the doorbell, pounded on the doors, and yelled “Fire
Department!” but no one answered. They looked in the windows of the home but did not see
anyone. Helis and Mazor radioed Orland Central Dispatch for more information and asked the
dispatcher, Jacqueline Johnson, to call Coretta. Jacqueline Johnson told Helis and Mazor that
“we’ll try in a minute.” Jacqueline Johnson recalled that when she attempted to contact Will
County for more information, the line was busy.
¶8 While at the Coleman home, Helis and Mazor were approached by two neighbors who
informed them that an elderly couple lived at the residence. The man had heart issues, and they
had seen him mow the lawn earlier that day, but his truck was gone. The neighbors did not have
the Colemans’ phone number but said the woman was unlikely to answer the phone. Based on
this information, Helis and Mazor determined that a forced entry could not be made. Helis and
Mazor told the neighbors that they could not make a forced entry without a police officer
present. However, they advised that the neighbors could call the police and ask them to
perform a forced entry.
¶9 Helis and Mazor called their supervisor at the East Joliet Fire Protection District, who
ordered them to leave the scene and go back into service. Helis and Mazor then called Orland
Central Dispatch and told them to “be advised” there was “no patient.” Helis and Mazor left the
Coleman residence at 6:24 p.m.
¶ 10 After ambulance 524 left the Coleman residence, one of the neighbors who spoke with
Helis and Mazor called 911 and spoke with Zan. She told Zan the paramedics were at the
Coleman residence but left when no one answered the door. The neighbor asked for police to
be dispatched. Shortly thereafter, another neighbor called 911 and told Zan there was an
emergency at “1600 Sugar Creek Drive.” At 6:37 p.m., Zan called Orland Central Dispatch
and told Eric Johnson that she had transferred a call to him earlier from a “female [who] was
unable to breathe” and that “all the neighbors are calling saying that the fire department left
and did nothing.” Johnson told Zan that “they were already there.” Zan responded, “[a]ll right.
Well, apparently they couldn’t get in the house, and they cleared from the call. We don’t know
if the lady is alive or dead.” Johnson attempted to dispatch a second ambulance to the Coleman
residence.
¶ 11 During her conversation with Eric Johnson, Zan did not give him Coleman’s complete
address. She said “1600 Sugar Creek,” but the Colemans’ subdivision contains both a “Sugar
Creek Court” and a “Sugar Creek Drive.” At 6:40 p.m., Johnson erroneously dispatched East
Joliet Fire Protection District ambulance 534 to “1600 Sugar Creek Court,” instead of “1600
Sugar Creek Drive.” The ambulance crew called Orland Central Dispatch to check the address
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when there appeared to be no number 1600 on Sugar Creek Court. Eric Johnson called Will
County 911 for more information about the address. While Johnson spoke with a Will County
dispatcher, the crew of ambulance 534 found the Coleman residence on their own. The
ambulance arrived at the house at 6:51 p.m., 41 minutes after Coretta made the initial 911 call.
The crew knocked on the door, but no one answered. They then called a supervisor to ask if
they should force entry. Coretta’s husband then arrived and let them into the house. The crew
found Coretta unresponsive, and she was pronounced dead at the hospital. Coretta died of
cardiac arrest brought on by a rapid onset of pulmonary edema. Coretta was 58 years old at the
time of her death.
¶ 12 Coretta’s surviving husband, Stanley, as administrator of Coretta’s estate, filed claims for
wrongful death and survival on behalf of the estate in the circuit court of Cook County. The
case was subsequently transferred to Will County. Stanley died during the pendency of the
proceedings, and the Colemans’ son, Marcus Coleman, the successor administrator of
Coretta’s estate, was substituted as plaintiff in this case.
¶ 13 Counts I through XIV of plaintiff’s complaint alleged willful and wanton conduct against
all defendants. Counts XV through XXVIII alleged negligence “instead of willful and wanton
conduct with the assumption, that may be wrong, that under the current state of the law, a
negligence claim will not permit recovery due to immunity.” Plaintiff’s complaint indicated
the negligence allegations were made “to preserve the record in the event the law changes so
that the government is held to the same standards that the citizens are, or in the event that the
Plaintiff’s understanding of the law is wrong.”
¶ 14 Defendants East Joliet Fire Protection District, Louis Helis and Scott Mazor, as well as
Orland Fire Protection District and Eric Johnson, filed motions to dismiss plaintiff’s complaint
arguing, inter alia, that they were immune from civil liability pursuant to section 3.150 of the
Emergency Medical Services (EMS) Systems Act (210 ILCS 50/3.150 (West 2006)).
Defendants Will County and Laurie Zan filed a motion to dismiss plaintiff’s complaint
arguing, inter alia, that they were immune from civil liability pursuant to section 15.1 of the
Emergency Telephone System Act (50 ILCS 750/15.1 (West 2006)). In response to
defendants’ motions to dismiss, plaintiff agreed that the negligence counts should be dismissed
due to immunity but argued that the counts alleging willful and wanton conduct should not be
dismissed because both the Emergency Medical Services (EMS) Systems Act and the
Emergency Telephone System Act provide liability for willful and wanton conduct. The trial
court granted the motions to dismiss in part, dismissing plaintiff’s negligence counts, but
denied defendants’ motions to dismiss plaintiff’s counts alleging willful and wanton conduct.
¶ 15 Defendants filed motions for summary judgment on plaintiff’s remaining willful and
wanton counts, arguing that: (1) they owed no duty to Coretta under the public duty rule and
(2) even if they did owe Coretta a duty, they were immune from liability under section 3.150 of
the Emergency Medical Services (EMS) Systems Act (210 ILCS 50/3.150 (West 2006)) and/or
section 15.1 of the Emergency Telephone System Act (50 ILCS 750/15.1 (West 2006)),
because their conduct was not willful and wanton. Defendants East Joliet Fire Protection
District and its employees, Helis and Mazor, as well as Will County, and its employee, Zan,
also asserted absolute immunity under various sections of the Local Governmental and
Governmental Employees Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 2006)). The
trial court granted summary judgment in favor of all defendants on the willful and wanton
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counts under the public duty rule. The trial court held that the “special duty” exception to the
public duty rule did not apply to any of the defendants because Coretta “initiated the contact
with the municipality and was not under the direct or immediate control of any of the
defendants.” The trial court did not reach the issue of immunity. The appellate court affirmed.
2014 IL App (3d) 120583-U.
¶ 16 We allowed plaintiff’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Jan. 1, 2015)). We
allowed amicus curiae briefs to be filed by: (1) the Illinois Trial Lawyers Association; (2) the
Intergovernmental Risk Management Agency; (3) the Illinois Association of Defense Trial
Counsel; (4) the Illinois Municipal League, the Illinois Public Employer Labor Relations
Association and the Illinois Community College Trustees Association; (5) the Illinois
Association of Fire Protection Districts, the Northern Illinois Alliance of Fire Protection
Districts and the Illinois Fire Chiefs Association; and (6) the Municipal Insurance Cooperative
Agency and the McHenry County Municipal Risk Management Agency. Ill. S. Ct. R. 345 (eff.
Sept. 20, 2010).
¶ 17 ANALYSIS
¶ 18 Initially, we address the motion of Orland Fire Protection District and Eric Johnson to
strike certain parts of plaintiff’s separate appendix as well as references to those sections
contained in plaintiff’s brief, arguing that those sections are outside the appellate record.
Plaintiff filed an objection to the motion to strike, pointing out that the material at issue, with
the exception of two sentences, are printouts of deposition statements contained on a computer
disk that is part of the record. Plaintiff asserts that he provided the hard copies for this court’s
convenience and that one of the two sentences not included on the disk was testified to by
another witness, while the other sentence is not implicated in the controversy before this court.
Alternatively, plaintiff argues that the court can simply ignore the two sentences without
striking anything from the record or the briefs. We ordered the motion taken with the case.
¶ 19 “This court has recognized that striking a portion of an appellate brief ‘ “is a harsh
sanction,” ’ appropriate only if a violation of our procedural rules interferes with or precludes
our review.” People v. Howard, 233 Ill. 2d 213, 224 (2009) (quoting In re Detention of Powell,
217 Ill. 2d 123, 132 (2005), quoting Moomaw v. Mentor H/S, Inc., 313 Ill. App. 3d 1031, 1035
(2000)). Given plaintiff’s clarification of the material and statements at issue, we find that
these matters do not hinder or preclude our review of the case, and we therefore deny the
motion to strike.
¶ 20 We begin our analysis by addressing the standard of review. Summary judgment is
appropriate if the pleadings, depositions, and admissions on file, together with affidavits, if
any, viewed in the light most favorable to the nonmoving party, reveal that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter of
law. 735 ILCS 5/2-1005(c) (West 2010); Kajima Construction Services, Inc. v. St. Paul Fire &
Marine Insurance Co., 227 Ill. 2d 102, 106 (2007). We review the trial court’s decision on a
motion for summary judgment de novo. Pielet v. Pielet, 2012 IL 112064, ¶ 30.
¶ 21 The primary issue we are asked to address in this appeal is whether the public duty rule
remains viable. The continued viability of the public duty rule is a question of law subject to
de novo review. Vancura v. Katris, 238 Ill. 2d 352, 373-74 (2010).
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¶ 22 The continued viability of the public duty rule depends on the interplay between the public
duty rule and governmental tort immunity. Therefore, before addressing the continued
viability of the public duty rule in Illinois and, ultimately, whether the trial court properly
granted summary judgment in favor of defendants, we examine the origins and history of
various forms of governmental tort immunity in Illinois. We begin by reviewing state
governmental immunity.
¶ 23 State Governmental Immunity
¶ 24 The immunity of the State of Illinois and its agencies from suit of any kind, unless the State
consents to be sued, is rooted in the English common-law doctrine of sovereign immunity. S.J.
Groves & Sons Co. v. State, 93 Ill. 2d 397, 400 (1982). Under the English common law,
sovereign immunity was based on the political theory that the King could do no wrong and that
“the Crown is immune from any suit to which it has not consented.” Feres v. United States, 340
U.S. 135, 139 (1950).
¶ 25 The first Illinois Constitution, adopted in 1818, as part of the process of Illinois being
admitted to the Union, contained no provision for sovereign immunity. See Ill. Const. 1818. In
1819, shortly after being admitted to statehood, the State of Illinois adopted the common law of
England. See 1833 Ill. Laws 425; see also S.J. Groves & Sons, 93 Ill. 2d at 400. The Illinois
Constitution of 1848 contained the first constitutional provision addressing sovereign
immunity and provided that “The general assembly shall direct by law in what manner suits
may be brought against the state.” Ill. Const. 1848, art. III, § 34. In 1870, sovereign immunity
officially became a constitutional doctrine in Illinois. Article IV, section 26, of the Illinois
Constitution of 1870 provided: “[t]he state of Illinois shall never be made defendant in any
court of law or equity.” Ill. Const. 1870, art. IV, § 26. The constitutional doctrine of sovereign
immunity applied to lawsuits of any kind against the State of Illinois and its agencies unless the
State consented to be sued. See Monroe v. Collins, 393 Ill. 553, 557 (1946). Consequently, no
suit could be maintained against the State.
¶ 26 In 1877, a Commission of Claims was created to hear claims against the State (1877 Ill.
Laws 64). In 1903, the Court of Claims Act repealed the Act of 1877 and gave the Court of
Claims exclusive jurisdiction to rule on claims against the State. 1903 Ill. Laws 140. The Court
of Claims Act of 1917 repealed the Act of 1903, but the Court of Claims retained exclusive
jurisdiction to hear claims against the State. 1917 Ill. Laws 325. In 1945, a new Court of
Claims Act was passed allowing for limited recovery against the State of Illinois for the torts of
its agents and was subsequently amended in 1951 (Ill. Rev. Stat. 1951, ch. 37, ¶ 439.8), with
the Court of Claims continuing to retain exclusive jurisdiction for claims against the State.
Henry Novoselsky & John Peterson, State Immunity in Illinois: The Court of Claims, 15
DePaul L. Rev. 340 (1965).
¶ 27 In 1970, the Committee on General Government to the Illinois Constitutional Convention
of 1970 determined that the public interest would best be served by eliminating the doctrine of
sovereign immunity from the new constitution. See 6 Record of Proceedings, Sixth Illinois
Constitutional Convention 573 (hereinafter Proceedings). One of the proposals was worded:
“[e]xcept as the General Assembly may otherwise provide, the sovereign immunity of the
State of Illinois and all other units of government is abolished.” 6 Proceedings 678. The
provision that was ratified, however, does not expressly include lower units of government,
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and provides: “[e]xcept as the General Assembly may provide by law, sovereign immunity in
this State is abolished.” Ill. Const. 1970, art. XIII, § 4.4
¶ 28 In 1972, the General Assembly, pursuant to its constitutional authority, passed the State
Lawsuit Immunity Act. See Pub. Act 77-1776, § 1 (eff. Jan. 1, 1972); 745 ILCS 5/0.01 et seq.
(West 2014). Section 1 of the State Lawsuit Immunity Act provides that, except as provided in
the Court of Claims Act (705 ILCS 505/1 et seq. (West 2014)) and other specified statutes,
“the State of Illinois shall not be made a defendant or party in any court” (745 ILCS 5/1 (West
2014)). The Court of Claims Act, in turn, provides that the Court of Claims possesses exclusive
jurisdiction to hear and determine various matters, including “[a]ll claims against the State for
damages in cases sounding in tort, if a like cause of action would lie against a private person or
corporation in a civil suit” and, with certain exceptions, limits a claimant’s damages. 705 ILCS
505/8(d) (West 2014). Accordingly, state sovereign immunity has been abolished and replaced
by the State Lawsuit Immunity Act (745 ILCS 5/0.01 et seq. (West 2014)). We now examine
the origins and history of local governmental tort immunity in Illinois.
¶ 29 Local Governmental Tort Immunity
¶ 30 Local governmental tort immunity in Illinois was first recognized in 1844, in Hedges v.
County of Madison, 6 Ill. 567 (1844), adopting the immunity doctrine of Russell v. Men
Dwelling in the County of Devon, 2 Term Rep. 671, 100 Eng. Rep. 359 (1788). Russell
involved a tort action against an unincorporated county where the action was disallowed
because the county was unincorporated and had no fund to pay a judgment.
¶ 31 In Hedges, this court held that a county was immune from liability for its failure to
maintain a bridge in safe condition. The rationale was that protecting counties from liability
preserved public funds for public purposes. Hedges, 6 Ill. at 571. Common-law local
governmental tort immunity was eventually extended to townships (Town of Waltham v.
Kemper, 55 Ill. 346 (1870)), drainage districts (Elmore v. Drainage Commissioners, 135 Ill.
269 (1890)), and school districts (Kinnare v. City of Chicago, 171 Ill. 332 (1898), overruled in
part by Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11 (1959)). These
units of local government were considered quasi-corporations and “local subdivisions of the
State, established by the sovereign power of the State, clothed with but few corporate powers.”
Hollenbeck v. County of Winnebago, 95 Ill. 148, 162-63 (1880). Accordingly, no tort action
could be maintained against units of local government that were established by the State.
¶ 32 Municipalities (cities, villages, and incorporated towns), on the other hand, were held
liable under the common law for torts committed in a proprietary capacity rather than a
traditional governmental activity. See, e.g., Roumbos v. City of Chicago, 332 Ill. 70, 74 (1928).
In Culver v. City of Streator, 130 Ill. 238 (1889), this court observed:
4
As explained below, however, this court had previously abolished the immunity of units of local
government in Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11 (1959). This court
has recognized that the 1970 constitutional provision abolishing sovereign immunity “ ‘embodies the
presumptive rule from Molitor that units of local government are subject to tort liability,’ and provides
that the General Assembly possessed the exclusive power to determine whether such a governmental
unit is statutorily immune from liability.” Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 44 (1998)
(quoting Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 344-45 (1998)).
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“in those [governmental] matters the city acts only as the agent of the State, in the
discharge of duties imposed by law for the promotion and preservation of the public
and general welfare, as contradistinguished from mere corporate acts, having relation
to the management of its corporate or private concerns, and from which it derives some
special or immediate advantage or emolument in its corporate or private character.”
Culver, 130 Ill. at 244-45.
¶ 33 Thus, local governmental tort immunity varied, depending on whether the claim was made
against a local governmental subdivision of the State or against a municipality. The
common-law doctrine of local governmental tort immunity changed in 1959, with this court’s
decision in Molitor, 18 Ill. 2d 11. In Molitor, this court abolished governmental tort immunity
of school districts for the negligence of their employees. Molitor effectively abolished
governmental tort immunity for all units of local government. See List v. O’Connor, 19 Ill. 2d
337, 340 (1960); Walker v. Forest Preserve District, 27 Ill. 2d 538 (1963).
¶ 34 In 1965, in response to this court’s decision in Molitor, the legislature enacted the Local
Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745
ILCS 10/1-101 et seq. (West 2014)). The Tort Immunity Act provides that its purpose “is to
protect local public entities and public employees from liability arising from the operation of
government. It grants only immunities and defenses.” 745 ILCS 10/1-101.1 (West 2014). The
Tort Immunity Act applies to “[l]ocal public entit[ies],” including counties, fire protection
districts, and other local governmental bodies. 745 ILCS 10/1-206 (West 2014). “The Tort
Immunity Act adopted the general principle that local governmental units are liable in tort, but
limited this liability with an extensive list of immunities based on specific government
functions.” In re Chicago Flood Litigation, 176 Ill. 2d 179, 192 (1997).
¶ 35 Relevant to this appeal, the General Assembly has also enacted other legislation that
provides immunity for various emergency services such as the Emergency Medical Services
(EMS) Systems Act (210 ILCS 50/3.150 (West 2006)) and the Emergency Telephone System
Act (50 ILCS 750/15.1 (West 2006)). Thus, in Illinois, the common-law doctrine of local
governmental tort immunity has been replaced by the Tort Immunity Act and other statutes
that grant tort immunity for various governmental services provided to the public. With this
understanding of the history and development of state immunity and local governmental tort
immunity, we now examine the origin and history of the public duty rule.
¶ 36 Public Duty Rule
¶ 37 The common-law “public duty rule” provides 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. See Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 509
(1990), overruled on other grounds in McCuen v. Peoria Park District, 163 Ill. 2d 125 (1994);
Huey, 41 Ill. 2d at 363. In Leone v. City of Chicago, 156 Ill. 2d 33 (1993), this court stated:
“The courts of this State have held as a matter of common law that municipalities
are generally not liable for failure to supply police or fire protection [citation], nor are
they liable for injuries negligently caused by police officers or fire fighters while
performing their official duties [citation]. An exception to these rules has been
recognized where the municipality owes the injured party a special duty that is different
from its duty to the general public.” Leone, 156 Ill. 2d at 37.
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¶ 38 The long-standing public duty rule “is grounded in the principle that the duty of the
governmental entity to ‘preserve the well-being of the community is owed to the public at large
rather than to specific members of the community.’ ” Zimmerman, 183 Ill. 2d at 32 (quoting
Schaffrath v. Village of Buffalo Grove, 160 Ill. App. 3d 999, 1003 (1987)).
¶ 39 The public duty rule is believed to have originated in the United States Supreme Court case
of South v. Maryland, 59 U.S. 396 (1855). See David S. Bowers, Tort Law—The Public Duty
Doctrine: Should It Apply in the Face of Legislative Abrogation of Sovereign
Immunity?—Coleman v. Cooper, 12 Campbell L. Rev. 503, 506 (1990); John Cameron
McMillan, Jr., Note, Government Liability and the Public Duty Doctrine, 32 Vill. L. Rev. 505,
509 (1987). In South, the plaintiff sued the sheriff for refusing to enforce the laws of the state
and for failing to protect the plaintiff after he was kidnapped and forced to pay a ransom to be
released. The Supreme Court found that the sheriff’s duty to keep the peace was a “public duty,
for neglect of which he is amenable to the public, and punishable by indictment only.” South,
59 U.S. at 403. The Supreme Court, citing the common law of England, indicated this had been
the law for centuries. South, 59 U.S. at 403.
¶ 40 Some courts, however, cite to Thomas M. Cooley’s 1880 treatise on tort law as the origin
of the public duty rule. Jayme S. Walker, Insulating Negligent Police Behavior in Indiana:
Why the Victims of a Drunk Driver Negligently Released by a Police Officer Have No Remedy,
23 Val. U. L. Rev. 665, 674 n.60 (1989) (citing as examples of courts citing to Cooley’s
treatise as the origin of the public duty rule: Trautman v. City of Stamford, 350 A.2d 782, 784
(Conn. Super. Ct. 1975); Leger v. Kelley, 110 A.2d 635, 638 (Conn. Super. Ct. 1954); Sawicki
v. Village of Ottawa Hills, 525 N.E.2d 468 (Ohio 1988); DeWald v. State, 719 P.2d 643,
652-53 (Wyo. 1986)). Cooley’s treatise states:
“The rule of official responsibility, then, appears to be this: that if the duty which the
official authority imposes upon an officer is a duty to the public, a failure to perform it,
or an inadequate or erroneous performance, must be a public, not an individual injury
and must be redressed, if at all, in some form of public prosecution. On the other hand,
if the duty is a duty to the individual, then a neglect to perform it, or to perform it
properly, is an individual wrong, and may support an individual action for damages.”
Jayme S. Walker, Insulating Negligent Police Behavior in Indiana: Why the Victims of
a Drunk Driver Negligently Released by a Police Officer Have No Remedy, 23 Val. U.
L. Rev. 665, 674 n.60 (1989) (quoting Thomas M. Cooley, A Treatise on the Law of
Torts or the Wrongs Which Arise Independent of Contract 379 (1880)).
¶ 41 The public duty doctrine was widely accepted in most jurisdictions. See Ezell v. Cockrell,
902 S.W.2d 394, 397 n.2 (Tenn. 1995) (citing Leake v. Cain, 720 P.2d 152, 155 n.6 (Colo.
1986) (en banc) (quoting Thomas M. Cooley, A Treatise on the Law of Torts or the Wrongs
Which Arise Independent of Contracts 379 (1880)), and Kelly Mahon Tullier, Note,
Governmental Liability for Negligent Failure to Detain Drunk Drivers, 77 Cornell L. Rev.
873, 887 (1992)). Over time, however, courts developed exceptions to the public duty doctrine.
For example, the “special duty exception” to the public duty rule is applicable only in limited
cases when the local governmental entity owes a special duty of care to a particular individual
that is different from the duty it owes to the general public. Burdinie, 139 Ill. 2d at 508-09.
¶ 42 While the public duty rule is a long-standing common-law rule, we have found very few
Illinois cases applying the doctrine prior to the abolition of local governmental immunity by
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this court in Molitor in 1959. The first decision of this court acknowledging the public duty
rule and the special duty exception was in the 1968 decision of Huey, 41 Ill. 2d 361. The
absence of cases applying the public duty rule and the special duty exception prior to the
abolition of local governmental immunity is not surprising. Until local governmental
immunity was abolished in Molitor, the public duty rule and the special duty exception
remained in abeyance. In other words, local governmental immunity stood as an absolute bar
to the enforcement of any civil liability arising from a breach of any duty. As one court aptly
noted:
“While governmental immunity remained in effect, this type of court action remained
in abeyance. It remained in abeyance not on account of absence of duty on the part of a
municipality to the injured or deceased person, but for the reason that where the factual
basis of the claim was involved in the performance of a governmental function (such as
police duty), the State had not permitted itself or its political subdivisions or municipal
corporations to be sued. Where the immunity was removed, this bar no longer stood
against the enforcement of civil liability arising from breach of a duty that existed
before, but which could not be enforced until the immunity was waived.” Schuster v.
City of New York, 154 N.E.2d 534, 539 (N.Y. 1958).
Thus, where governmental immunity applied as an absolute defense of liability, the public duty
rule and the special duty exception remained in abeyance. We now address the plaintiff’s
argument that the public duty rule should be abolished in Illinois.
¶ 43 Continued Viability of Public Duty Rule
¶ 44 Plaintiff argues that the public duty rule is the equivalent of sovereign immunity and that
the public duty rule should be abolished by this court in light of the abrogation of sovereign
immunity and passage of statutory tort immunities. In Huey, this court stated that the public
duty rule existed “[i]ndependent[ly] of statutory or common-law concepts of sovereign
immunity.” Huey, 41 Ill. 2d at 363.
¶ 45 The public duty rule is not the equivalent of any type of sovereign immunity. While the
public duty rule and sovereign immunity are both common-law concepts, the “public duty
rule” developed separately and exists independently of any constitutional, statutory or
common-law concepts of “sovereign immunity.” As explained earlier in this opinion, state
government immunity was grounded in the English common-law doctrine of sovereign
immunity, became a state constitutional doctrine in 1870 (Ill. Const. 1870, art. IV, § 26), was
constitutionally abolished in 1970 (Ill. Const. 1970, art. XIII, § 4), and was legislatively
replaced by the State Lawsuit Immunity Act (745 ILCS 5/1 (West 2014)). Supra ¶¶ 26-28.
Local governmental tort immunity of a county was first recognized in Hedges, 6 Ill. 567,
adopting the immunity doctrine of Russell, 2 Term Rep. 671, 100 Eng. Rep. 359, and was
eventually extended to other local governmental subdivisions of the State. This court abolished
governmental tort immunity for all units of local government in Molitor, 18 Ill. 2d 11, and
local governmental tort immunity was then replaced by statutory tort immunity. Supra
¶¶ 30-34. The public duty rule is not rooted in sovereign immunity nor did the public duty rule
develop from any concepts of government immunity from suit. Rather, the public duty rule
developed independently and separately from concepts of governmental immunity (see supra
¶¶ 37-39) and “is grounded in the principle that the duty of the governmental entity to
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‘preserve the well-being of the community is owed to the public at large rather than to specific
members of the community.’ ” Zimmerman, 183 Ill. 2d at 32 (quoting Schaffrath, 160 Ill. App.
3d at 1003).
¶ 46 The issue of whether a duty is owed is a separate and distinct issue from whether a defense
of governmental immunity applies. This court has consistently held that the issue of a duty is
separate from the issue of immunity from liability based on that duty. See Barnett v. Zion Park
District, 171 Ill. 2d 378, 388 (1996) (“[i]t is important to recognize that the existence of a duty
and the existence of an immunity are separate issues”); Zimmerman, 183 Ill. 2d at 46 (same);
Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 490 (2001) (same);
Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 479-80 (2002)
(same); DeSmet v. County of Rock Island, 219 Ill. 2d 497, 507 (2006). In Zimmerman, this
court explained the distinction between the concepts of duty and statutory immunities after
ratification of the 1970 Constitution:
“ ‘The judicial abrogation of sovereign immunity merely abrogated a defense to any
preexisting duty. [Citation.] *** Neither Molitor, nor any waiver of immunity creates
new tort duties and liabilities. [Citations.] Under the inapplicable concept of sovereign
immunity, despite any “apparent duty,” the governmental entity is immune from tort
liability. This does not occur from a denial of the tort’s existence, but rather because the
existing liability in tort is disallowed. In contrast, [under the rationale of the public duty
rule] the tort liability or duty never existed. [Citations.]’ ” Zimmerman, 183 Ill. 2d at 46
(quoting Martin v. Lion Uniform Co., 180 Ill. App. 3d 955, 961-62 (1989)).
Zimmerman specifically noted that “[t]he distinction between an immunity and a duty is
crucial, because only if a duty is found is the issue of whether an immunity or defense is
available to the governmental entity considered.” Zimmerman, 183 Ill. 2d at 46. Because of
this distinction between duties and immunities, “neither this court’s decision in Molitor
abolishing sovereign immunity, the General Assembly’s passage of the Tort Immunity Act,
nor the ratification of the 1970 Illinois Constitution altered the common-law public duty rule
that a governmental entity generally owes no duty to provide an individual citizen with specific
municipal services.” Zimmerman, 183 Ill. 2d at 45.
¶ 47 Plaintiff also argues, alternatively, that Doe-3 v. McLean County Unit District No. 5 Board
of Directors, 2012 IL 112479, should be read to nullify the public duty rule implicitly because
this court founded its decision on the principle that “ ‘every person owes a duty of ordinary
care to all others to guard against injuries which naturally flow as a reasonably probable and
foreseeable consequence of an act.’ ” (Internal quotation marks omitted.) Doe-3, 2012 IL
112479, ¶ 21 (quoting Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 19). However,
we did not examine the continued viability of the public duty rule in Doe-3. Rather, the public
duty rule was “of no moment” in that case because it was not implicated by the allegations in
the plaintiffs’ complaint. Doe-3, 2012 IL 112479, ¶ 40. In fact, we emphasized that our holding
in Doe-3 was limited to the particular circumstances presented in that case. Doe-3, 2012 IL
112479, ¶ 45. Accordingly, Doe-3 did not abrogate the public duty rule or otherwise announce
its demise.
¶ 48 Plaintiff also suggests that the decisions of this court in DeSmet, 219 Ill. 2d at 508-09, and
Aikens v. Morris, 145 Ill. 2d 273, 278 n.1 (1991), imply that the public duty rule may no longer
have sustained viability. This court has already explicitly and repeatedly ruled that neither the
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abolition of sovereign immunity nor the legislature’s passage of statutory immunity “altered
the common law public duty rule that a governmental entity generally owes no duty to provide
an individual citizen with specific municipal services.” Zimmerman, 183 Ill. 2d at 45; Huey, 41
Ill. 2d at 363. Moreover, the continued viability of the public duty rule was not addressed in
DeSmet, or Aikens and, therefore, those cases provide no support for abandoning the public
duty rule.
¶ 49 A majority of jurisdictions continue to adhere to the public duty rule despite abolition of
sovereign immunity and passage of immunity statutes, “concluding that, in both law and
policy, the rule is sound and necessary.” Ezell, 902 S.W.2d at 399. A few jurisdictions have,
however, abrogated or narrowed the application of the public duty rule. See Adams v. State,
555 P.2d 235 (Alaska 1976) (superseded by statute); Ryan v. State, 656 P.2d 597 (Ariz. 1982)
(en banc) (superseded by statute); Leake v. Cain, 720 P.2d 152 (Colo. 1986) (en banc)
(superseded by statute); Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010
(Fla. 1979); Jean W. v. Commonwealth, 610 N.E.2d 305 (Mass. 1993) (abrogated by statute);
Southers v. City of Farmington, 263 S.W.3d 603 (Mo. 2008); Wilson v. Nepstad, 282 N.W.2d
664 (Iowa 1979); Maple v. City of Omaha, 384 N.W.2d 254 (Neb. 1986); Shear v. Board of
County Commissioners, 1984-NMSC-079, 101 N.M. 671, 687 P.2d 728; Stewart v. Schmieder,
386 So. 2d 1351 (La. 1980) (superseded by statute); Brennen v. City of Eugene, 591 P.2d 719
(Or. 1979); Coffey v. City of Milwaukee, 247 N.W.2d 132 (Wis. 1976); Hopkins v. State, 702
P.2d 311 (Kan. 1985).
¶ 50 Some of those jurisdictions have revived the public duty rule via legislation after state
courts abolished it. We note that the legislatures of Alaska, Arizona, Colorado, Massachusetts,
and Louisiana have passed legislation reinstating the public duty rule. The Florida Supreme
Court subsequently retreated from its earlier decision abrogating the public duty rule and
limited its holding in Commercial Carrier. See Trianon Park Condominium Ass’n v. City of
Hialeah, 468 So. 2d 912, 918 (Fla. 1985). The Iowa Supreme Court has clarified that it did not
abolish the public duty doctrine, but its application has been narrowed. See Kolbe v. State, 625
N.W.2d 721, 729 (Iowa 2001) (“we have not expressly abolished the public duty doctrine,
although we have narrowed its application”); Raas v. State, 729 N.W.2d 444, 449 (Iowa 2007)
(“In Kolbe we recognized that the public-duty doctrine is still viable despite enactment of the
State Tort Claims Act ***. *** [The public-duty doctrine is] alive and well in Iowa.”). Our
research has found that, currently, six jurisdictions do not follow the public duty rule either by
common law or statutorily: Missouri, Nebraska, New Mexico, Oregon, Wisconsin, and
Kansas.
¶ 51 The primary rationale employed by the courts that abolished the public duty rule was that
the doctrine was nothing more than a continuation of sovereign immunity and should not exist
when sovereign immunity had been abolished. We have already rejected this argument. See
Zimmerman, 183 Ill. 2d at 45; Huey, 41 Ill. 2d at 363. We reiterate: the public duty rule is not a
form of sovereign immunity. Rather, this court has been clear that “ ‘the existence of a duty
and the existence of an immunity are separate issues.’ ” Zimmerman, 183 Ill. 2d at 45 (quoting
Barnett, 171 Ill. 2d at 388).
¶ 52 We have consistently held that the public duty rule survived the abolition of sovereign
immunity and passage of the Tort Immunity Act. See Zimmerman, 183 Ill. 2d at 45; Huey, 41
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Ill. 2d at 363. Nevertheless, after much reflection, we have determined that the time has come
to abandon the public duty rule and its special duty exception.
¶ 53 “Overruling a decision of this court, let alone an entire body of case law, necessarily
implicates stare decisis principles.” People v. Sharpe, 216 Ill. 2d 481, 519 (2005). As this court
recognized in Sharpe:
“ ‘The doctrine of stare decisis “expresses the policy of the courts to stand by
precedents and not to disturb settled points.” Neff v. George, 364 Ill. 306, 308-09
(1939), overruled on other grounds by Tuthill v. Rendelman, 387 Ill. 321 (1944). This
doctrine “is the means by which courts ensure that the law will not merely change
erratically, but will develop in a principled and intelligible fashion.” Chicago Bar
Ass’n v. Illinois State Board of Elections, 161 Ill. 2d 502, 510 (1994). Stare decisis
enables both the people and the bar of this state “to rely upon [this court’s] decisions
with assurance that they will not be lightly overruled.” Moehle v. Chrysler Motors
Corp., 93 Ill. 2d 299, 304 (1982).
To be sure, stare decisis is not an inexorable command. Chicago Bar Ass’n, 161 Ill.
2d at 510; Payne v. Tennessee, 501 U.S. 808, 842, 115 L. Ed. 2d 720, 746, 111 S. Ct.
2597, 2617 (1991) (Souter, J., concurring). However, we have consistently held that
any departure from stare decisis must be specially justified (Chicago Bar Ass’n, 161
Ill. 2d at 510) and that prior decisions should not be overruled absent “good cause”
(Moehle, 93 Ill. 2d at 304; Heimgaertner v. Benjamin Electric Manufacturing Co., 6 Ill.
2d 152, 166-67 (1955)) or “compelling reasons” (Moehle, 93 Ill. 2d at 304; People v.
Robinson, 187 Ill. 2d 461, 463-64 (1999)). This court also has recognized that “it will
not depart from precedent ‘merely because the court is of the opinion that it might
decide otherwise were the question a new one.’ ” Robinson, 187 Ill. 2d at 463-64,
quoting Maki v. Frelk, 40 Ill. 2d 193, 196-97 (1968) In sum, “when a rule of law has
once been settled, contravening no statute or constitutional principle, such rule ought to
be followed unless it can be shown that serious detriment is thereby likely to arise
prejudicial to public interests.” Maki, 40 Ill. 2d at 196; see also Heidenreich v.
Bremner, 260 Ill. 439, 450-51 (1913).’ ” Sharpe, 216 Ill. 2d at 519-20 (quoting Vitro v.
Mihelcic, 209 Ill. 2d 76, 81-82 (2004)).
In Sharpe, this court “further noted that good cause to depart from stare decisis exists when
governing decisions are unworkable or are badly reasoned.” Sharpe, 216 Ill. 2d at 520.
¶ 54 We believe that departing from stare decisis and abandoning the public duty rule and its
special duty exception is justified for three reasons: (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.
¶ 55 First, application of the public duty rule and its special duty exception has become muddled
and inconsistent. Whether a plaintiff can establish that a local public entity owed a duty is a
separate and distinct inquiry from the issue of whether defendants can claim a statutory
immunity is available as a defense. Therefore, “[o]nce a court determines that a duty exists, it
then addresses whether [statutory immunity] applies.” Harris v. Thompson, 2012 IL 112525,
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¶ 17 (citing Arteman, 198 Ill. 2d at 480, and Village of Bloomingdale, 196 Ill. 2d at 490). As
one court has aptly noted, “[c]onceptually, the question of the applicability of a statutory
immunity does not even arise until it is determined that a defendant otherwise owes a duty of
care to the plaintiff and thus would be liable in the absence of such immunity.” (Internal
quotation marks omitted.) Williams v. State, 664 P.2d 137, 139 (Cal. 1983). Frequently,
however, this “logical sequence of inquiry” has been overlooked and the “immunity cart has
been placed before the duty horse.” Williams, 664 P.2d at 139.
¶ 56 Even this court has addressed issues of immunity without determining whether any duty
exists. See DeSmet, 219 Ill. 2d at 509 (“[W]e assume a defendant owes a duty, for the sake of
analysis, in order to expedite the resolution of an immunity issue.”). Obviously, a duty analysis
is irrelevant where immunity applies, and the inverse is also true: immunity is irrelevant when
there is no duty in the first place. However, putting the “immunity cart” before the “duty horse”
caused applications of these concepts to become muddled, confusing, and unduly complicated.
¶ 57 When a plaintiff’s cause of action is based solely on negligence, but application of a
statutory immunity would be dispositive, then assuming a duty is owed expedites the
resolution of the immunity issue. DeSmet, 219 Ill. 2d at 509. When a statute immunizes a local
public entity from liability for a plaintiff’s injuries, the issue of whether the local public entity
owed a duty to the plaintiff is irrelevant. See Harinek, 181 Ill. 2d at 347 (“because we find that
the [Tort Immunity] Act immunizes the City from liability for plaintiff’s injuries, the question
of whether the fire marshal had a special duty to plaintiff is irrelevant”). When the plaintiff
claims a local public entity owed a special duty of care and the legislature has granted
immunity to the local public entity, the special duty exception to the public duty rule cannot
override statutory immunities. See Zimmerman, 183 Ill. 2d at 50; Harinek, 181 Ill. 2d at 347.
Thus, in Zimmerman, this court limited application of the special duty exception to the public
duty rule in cases where statutory immunities were applicable to a cause of action.
Accordingly, the public duty rule and its special duty exception has proved difficult in its
application when statutory immunity or limited statutory immunity applies.
¶ 58 Second, application of the public duty rule is incompatible with the legislature’s grant of
limited immunity in cases of willful and wanton misconduct. The legislature has deemed it
appropriate to allow recovery in cases of willful and wanton misconduct. When the public duty
rule is applied, however, a plaintiff is precluded from pursuing a cause of action for willful and
wanton misconduct, in contravention of the clear legislative decision to allow recovery against
the public entity in certain cases involving willful and wanton misconduct. The legislative
intent is to impose liability upon public entities under circumstances of willful and wanton
misconduct. Thus, application of the public duty rule to preclude recovery is incompatible with
the legislature’s grant of limited immunity.
¶ 59 Third, 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
judicially created public duty doctrine “is based on the policy determination that when a
governmental entity assumes a duty to protect the general public from harms such as criminal
activity, holding the entity liable for a breach of this duty would cause municipalities to be
‘mired hopelessly in civil lawsuits ... for every infraction of the law.’ ” Cope v. Utah Valley
State College, 342 P.3d 243, 249 (Utah 2014) (quoting Prosser v. Kennedy Enterprises, Inc.,
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179 P.3d 1178, 1183 (Mont. 2008)). Determination of public policy is, however, primarily a
legislative function. As our appellate court has aptly recognized:
“Courts are ill equipped to determine what the public policy should be. *** Further,
establishing public policy may entail the balancing of political interests. This is a
function of the legislature, not the courts.” Dixon Distributing Co. v. Hanover
Insurance Co., 244 Ill. App. 3d 837, 852 (1993).
¶ 60 Here, the public policy behind the judicially created public duty rule and its special duty
exception have largely been supplanted by the legislature’s enactment of statutory immunities,
rendering the public duty rule and its special duty exception obsolete.
¶ 61 For these reasons, we conclude 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. Accordingly, we hereby abolish the public duty rule and
its special duty exception. Therefore, in cases where the legislature has not provided immunity
for certain governmental activities, traditional tort principles apply. Obviously, if the
legislature determines that the public policy requires it, it may codify the public duty rule, but
we defer to the legislature in determining public policy. Supra ¶ 59.
¶ 62 Accordingly, we reverse and remand this cause to the circuit court for a determination of
whether defendants may be held liable for willful and wanton conduct as alleged in the
complaint.
¶ 63 CONCLUSION
¶ 64 We abolish the public duty rule and its special duty exception. We reverse the judgments of
the appellate court and circuit court of Will County and remand the cause to the circuit court of
Will County for further proceedings.
¶ 65 Reversed and remanded.
¶ 66 JUSTICE FREEMAN, specially concurring:
¶ 67 I agree that the time has come for this court to abandon the public duty rule and its special
duty exception. Accordingly, I concur in today’s judgment. However, I do so for reasons that
differ from those set forth in the lead opinion and that I have expressed in two previous
decisions.
¶ 68 As I explained in Calloway v. Kinkelaar, the public duty rule is rooted in the earliest
notions of sovereign immunity. Calloway v. Kinkelaar, 168 Ill. 2d 312, 334 (1995) (Freeman,
J., specially concurring) (citing Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501,
506-07 (1990), and 63 C.J.S. Municipal Corporations § 747 (1950)). When the 1970
Constitution was ratified, article XIII, section 4, abolished all forms of governmental
immunity, except where provided for by legislative action. Id. at 336. In light of that
constitutional provision, the judiciary’s power to apply the public duty doctrine ceased to exist
as a means of assessing municipal tort liability. Id. Accordingly, Illinois courts are required to
view “issues of governmental tort liability—not just immunity—through the prism of existing
legislation.” Id. at 337 (citing Henderson v. Foster, 59 Ill. 2d 343, 349 (1974)). I repeated these
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views in Doe-3 v. McLean County Unit District No. 5 Board of Directors, 2012 IL 112479,
¶¶ 58, 60 (Freeman, J., specially concurring), and continue to adhere to them today.
¶ 69 The lead opinion maintains that the public duty rule developed separately and exists
independently of the concept of sovereign immunity. Supra ¶¶ 44-45, 49, 51 (citing
Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 45 (1998), quoting Huey v. Town of Cicero, 41
Ill. 2d 361, 363 (1968)). From this premise, the lead opinion concludes that the abolition of
sovereign immunity and the enactment of the Tort Immunity Act did not affect the viability of
the public duty rule. Supra ¶ 52 (citing Zimmerman, 183 Ill. 2d at 45). I cannot concur in this
conclusion.
¶ 70 In my view, the doctrine of sovereign immunity and the public duty rule 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. This fact is
demonstrated by two of our earliest cases involving application of the doctrine of sovereign
immunity to municipalities. In Culver v. City of Streator, 130 Ill. 238 (1889), and Roumbos v.
City of Chicago, 332 Ill. 70 (1928), this court specifically recognized that a municipality was
immune from tort liability when exercising a governmental function for the benefit of the
public and the general welfare. Roumbos, 332 Ill. at 75, 80; Culver, 130 Ill. at 242-43, 245. It
was recognized that, in securing the safety, health, and welfare of the public, a municipality is
engaged in the performance of a public duty and is not liable for injuries caused in the
performance of such duties. Roumbos, 332 Ill. at 82. Therefore, when acting in its
governmental capacity to preserve the interest of the general public, a municipality represents
the sovereignty of the state and is subject to suit only to the extent determined by the
legislature. Id. at 77-78. Thus, the public duty rule has always been predicated on the very
same basis as the concepts underlying local governmental immunity.
¶ 71 In addition, the public duty rule is derived from the notion that a municipality cannot be
held civilly liable for failure to perform a duty owed to the general public. See supra ¶¶ 39-40
(citing South v. Maryland, 59 U.S. 396, 403 (1855) (holding that a breach of a public duty is
punishable by indictment only), Thomas M. Cooley, A Treatise on the Law of Torts or the
Wrongs Which Arise Independent of Contract 379 (1880) (recognizing that a breach of a
public duty can be redressed, if at all, in some form of public prosecution)). As such, it
unquestionably is a rule of nonliability for civil damages, which is, at its core, the fundamental
basis for sovereign immunity. Indeed, this court has previously characterized it in exactly that
way. DeSmet v. County of Rock Island, 219 Ill. 2d 497, 506 (2006); Zimmerman, 183 Ill. 2d at
32, 44.
¶ 72 When viewed in the proper historical context, it is clear that the public duty rule is firmly
rooted in the concept of sovereign immunity. This court has recognized as much by observing
that, with respect to certain governmental services, the public duty rule was incorporated and
codified in the Tort Immunity Act. Harris, 2012 IL 112525, ¶ 17; DeSmet, 219 Ill. 2d at
508-09; Aikens v. Morris, 145 Ill. 2d 273, 278 n.1 (1991). Moreover, this court has held that
“the tort liability” of a local governmental entity or its employee is “expressly controlled by the
constitutional provision and by legislative prerogative as embodied in the Tort Immunity Act.”
Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 489 (2001); Zimmerman,
183 Ill. 2d at 44; Burdinie, 139 Ill. 2d at 507.
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¶ 73 By enacting the Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 2012)), Illinois
adopted the general principle that local governmental units are liable in tort, but limited this
liability with an extensive list of immunities based on specific government functions. Harris,
2012 IL 112525, ¶ 16 (citing Village of Bloomingdale, 196 Ill. 2d at 489; Barnett v. Zion Park
District, 171 Ill. 2d 378, 385-86 (1996)). In addition, article XIII, section 4, of the 1970 Illinois
Constitution provides that “[e]xcept as the General Assembly may provide by law, sovereign
immunity in this State is abolished.” Ill. Const. 1970, art. XIII, § 4. This constitutional
provision “ ‘now makes the General Assembly the ultimate authority in determining whether
local units of government are immune from liability.’ ” Harris, 2012 IL 112525, ¶ 16 (quoting
DeSmet, 219 Ill. 2d at 506). As a result, “ ‘governmental units are liable in tort on the same
basis as private tortfeasors unless a tort immunity statute imposes conditions upon that
liability.’ ” Harris, 2012 IL 112525, ¶ 16 (quoting In re Chicago Flood Litigation, 176 Ill. 2d
179, 192 (1997)).
¶ 74 Our constitutional provision abolishing sovereign immunity and 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. Scrupulous application of the immunity statutes
enacted by the General Assembly is the best way to achieve and maintain that balance.
¶ 75 The lead opinion cites three reasons to explain why the public duty rule must be abolished.
While I have no specific quarrel with any of those reasons, I believe that the analysis set forth
above mandates the same conclusion and provides a more compelling justification.
¶ 76 As a final point, I agree with the observation that the legislature is free to enact a statute
that codifies the public duty rule. This approach makes perfect sense and, in my view, is the
only proper means of resolving the tension between the judicially created public duty rule and
the constitutional abrogation of sovereign immunity. Enactment of a statute that incorporates
the substance of the rule would put all of the pieces of the puzzle in the right place—as a
legislative recognition that the public duty rule is a vestige of sovereign immunity that the
General Assembly has elected to provide by law.
¶ 77 In sum, I agree that the public duty rule and its special duty exception must be abolished,
though I do so for reasons that differ from those expressed in the lead opinion. I also agree that
where the legislature has not provided immunity for certain governmental activities, traditional
tort principles apply in deciding the potential liability of municipal defendants. Finally,
because the public duty rule is obsolete, I concur that the judgments of the circuit and appellate
courts in this case must be reversed and the cause must be remanded for further proceedings.
¶ 78 JUSTICE THEIS joins in this special concurrence.
¶ 79 JUSTICE THOMAS, dissenting:
¶ 80 Almost 20 years ago, this court held expressly that, “[d]espite abolishing common law
sovereign immunity in Molitor, this court has nevertheless retained the public duty rule.”
Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 345 (1998). Later that
same year, this court explained that, because “the public duty rule exists ‘[i]ndependent[ly] of
statutory or common-law concepts of sovereign immunity’ *** neither this court’s decision in
Molitor abolishing sovereign immunity, the General Assembly’s passage of the Tort Immunity
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Act, nor the ratification of the 1970 Illinois Constitution altered the common law public duty
rule that a governmental entity generally owes no duty to provide an individual citizen with
specific municipal services.” (Emphasis omitted.) Zimmerman v. Village of Skokie, 183 Ill. 2d
30, 45 (1998) (quoting Huey v. Town of Cicero, 41 Ill. 2d 361, 363 (1968)). Today the court
abandons these well-settled principles and abolishes the public duty rule. Justice Kilbride
chooses this course because he is convinced that “serious detriment is *** likely to arise
prejudicial to public interests” if a principle established in 1968 and reaffirmed in 1998
remains on the books even one more day. (Internal quotation marks omitted.) Supra ¶ 53. The
concurring justices, by contrast, choose this course simply because they reach conclusions
different from those reached in these earlier decisions. Neither of these positions is defensible,
and both make a mockery of stare decisis. Accordingly, I dissent.
¶ 81 Justice Kilbride’s View
¶ 82 At the outset, it is worth emphasizing that what is published today as the court’s “lead
opinion” in this case is actually an analysis that five members of this court expressly disavow.
Indeed, though the two concurring justices agree with Justice Kilbride’s conclusion that the
public duty rule should be abolished, they do so “for reasons that differ from those expressed in
the lead opinion.” Supra ¶¶ 67, 77. And of course we in the dissent do not reject just Justice
Kilbride’s analysis; we reject his conclusion, too. Thus, though it appears first under the
caption and therefore might appear to the undiscerning reader to speak for the court, Justice
Kilbride’s analysis in fact garners less support than even this dissent. That analysis therefore
should not be confused with or construed as a majority position in this case.
¶ 83 That said, Justice Kilbride’s analysis starts in the right place, with an express
acknowledgment that this court has “consistently held that the public duty rule survived the
abolition of sovereign immunity and passage of the Tort Immunity Act.” Supra ¶ 52. Indeed,
with both certitude and precision, Justice Kilbride reminds us that “the public duty rule is not a
form of sovereign immunity” and that this court has “already rejected” the argument that the
public duty rule “[is] nothing more than a continuation of sovereign immunity and should not
exist when sovereign immunity had been abolished.” (Emphasis added.) Id. ¶ 51. And this is
so, Justice Kilbride explains, because “ ‘ “the existence of a duty and the existence of an
immunity are separate issues.” ’ ” Id. (quoting Zimmerman, 183 Ill. 2d at 45, quoting Barnett v.
Zion Park District, 171 Ill. 2d 378, 388 (1996)). I wholeheartedly agree with all of this, and if
Justice Kilbride had just stopped here, I happily would have joined his opinion.
¶ 84 Unfortunately, Justice Kilbride does not stop there. Instead, “after much reflection,” he
ultimately concludes that “departing from stare decisis and abandoning the public duty rule
and its special duty exception is justified for three reasons.” Supra ¶¶ 52, 54. Now one would
think that these reasons would be manifestly compelling, as Justice Kilbride himself
characterizes the public duty rule as “long-standing” (id. ¶¶ 38, 42) and concedes that “when a
rule of law has once been settled, contravening no statute or constitutional principle, such rule
ought to be followed unless it can be shown that serious detriment is thereby likely to arise
prejudicial to public interests.” (Internal quotation marks omitted.) Id. ¶ 53. But they are not
compelling, not in the least. In fact, they are not “reasons” at all but rather transparent ex post
rationalizations for a foregone conclusion, none of which holds up to even a moment’s
scrutiny.
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¶ 85 The first “reason” that Justice Kilbride gives for departing from stare decisis and
abandoning the long-standing public duty rule is that application of the rule has become
“muddled and inconsistent” (id. ¶ 54), a point Justice Kilbride bolsters primarily with a 1983
decision from the California Supreme Court (id. ¶ 55). Now how exactly an observation made
in California some 15 years before Zimmerman serves to prove that a principle settled in
Zimmerman has become “muddled and inconsistent” is never made clear. Nor could it be made
clear, as the quoted portion of the California Supreme Court decision hardly evinces a
jurisprudence run amok. On the contrary, it merely makes the unremarkable observation that in
some public duty cases, and for reasons of judicial expediency, courts will dispose of the
matter on immunity grounds rather than on duty grounds. Analytical triage of this sort is
standard practice in appellate review, and something this court routinely wields in a wide
variety of contexts. See, e.g., Schultz v. Performance Lighting, Inc., 2013 IL 115738, ¶ 33
(“We need not address the question of whether these amendments could be applied
retroactively to the case at bar because we find that even assuming that the amendments can be
applied prospectively only as plaintiff suggests, they would then merely indicate a
presumption that the legislature has changed the law from not requiring any action from the
employer faced with an invalid notice to now requiring the employer to respond with its reason
for noncompliance, but only provided that the obligee first gives notice of the non-receipt of
payment.”); Village of Mundelein v. Wisconsin Central R.R., 227 Ill. 2d 281, 299 (2008) (“We
need not decide that issue, however, because we conclude that even if the ordinance is treated
as a state statute, the saving clause does not apply.”); Bridges v. State Board of Elections, 222
Ill. 2d 482, 490 (2006) (“We need not decide this disagreement, because even if Public Act
93–541 created additional judgeships, Public Act 94–727 clearly eliminated them ***.”);
People v. Williams, 193 Ill. 2d 1, 22 (2000) (“we need not decide which view to adopt because
even if we accept that there may be instances in which collateral statements should be
admitted, this is not such a case”); In re A.P., 179 Ill. 2d 184, 203 (1997) (“We need not decide
whether the confrontation clause requirements must be satisfied in this noncriminal setting
because, even if those requirements applied, we would find them to be satisfied.”); People v.
Holman, 132 Ill. 2d 128, 152 (1989) (“We need not address these arguments, however, as we
find that even if evidence of the adjudication was improperly admitted, its admission was
harmless.”); People v. Harris, 129 Ill. 2d 123, 165 (1989) (“We need not address the question
raised in defendant’s petition for rehearing, however, because even if we assume without
deciding that defendant’s claim has not been waived, defendant would not prevail on the merits
of his claim.”); Edwards v. Industrial Comm’n, 96 Ill. 2d 221, 227 (1983) (“we need not decide
whether the report was properly admitted, because even if it was inadmissible, the
Commission’s decision is adequately supported by the manifest weight of the other evidence in
the record”); In re Marriage of Olson, 96 Ill. 2d 432, 440 (1983) (“We need not decide whether
Kenneth proves sufficient contributions to raise the presumption of transmutation because we
find that even if such a presumption were raised, Geraldine successfully rebutted any
presumption that a gift of the house to the marital estate was intended.”). Suffice it to say, if
such practice renders each of these 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. Thankfully, this is not the case, as nothing about our routine
“even if” approach to decisionmaking injects confusion into the law, and therefore nothing
about it justifies a departure from stare decisis.
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¶ 86 The second “reason” that Justice Kilbride gives for departing from stare decisis and
abandoning the long-standing public duty rule is that “the public duty rule is incompatible with
the legislature’s grant of limited immunity in cases of willful and wanton misconduct.” Supra
¶ 58. According to Justice Kilbride:
“The legislature has deemed it appropriate to allow recovery in cases of willful and
wanton misconduct. When the public duty rule is applied, however, a plaintiff is
precluded from pursuing a cause of action for willful and wanton misconduct, in
contravention of the clear legislative decision to allow recovery against the public
entity in certain cases involving willful and wanton misconduct. The legislative intent
is to impose liability upon public entities under circumstances of willful and wanton
misconduct. Thus, application of the public duty rule to preclude recovery is
incompatible with the legislature’s grant of limited immunity.” Id.
There are two problems with Justice Kilbride’s reasoning here. First, this court has explained
that “a court will detour from the straight path of stare decisis only for articulable reasons, and
only when the court must bring its decisions into agreement with experience and newly
ascertained facts.” (Emphasis added.) Chicago Bar Ass’n v. Illinois State Board of Elections,
161 Ill. 2d 502, 510 (1994). As Justice Kilbride well knows, there is absolutely nothing “new”
about “the legislature’s grant of limited immunity in cases of willful and wanton misconduct.”
On the contrary, the Tort Immunity Act has provided as much since its passage in 1965 (see Ill.
Rev. Stat. 1965, ch. 85, ¶ 2-202), the Emergency Telephone System Act since has provided as
much since its passage in 1975 (see Ill. Rev. Stat. 1977, ch. 134, ¶ 45.1), and the Emergency
Medical Services (EMS) Systems Act has provided as much since its passage in 1995 (see 210
ILCS 50/3.150 (West 1996)). And significantly, each of these legislative acts precedes
Harinek’s express affirmation that this court “has *** retained the public duty rule.” Harinek,
181 Ill. 2d at 345. Now, what exactly constitutes a “newly ascertained fact” sufficient to justify
a departure from stare decisis is an open question and probably cannot be answered ahead of
time for all cases. But certainly, we can all agree that whatever a “newly ascertained fact”
includes, it does not include legislative action that precedes the decision at issue by decades.
¶ 87 The second problem with Justice Kilbride’s invocation of the statutory exceptions for
willful and wanton conduct is that, even if those exceptions did constitute “newly ascertained
facts,” those exceptions would still remain wholly irrelevant. The statutory exceptions for
willful and wanton conduct are exceptions from statutory grants of immunity. But as Justice
Kilbride repeatedly reminds us, “[t]he issue of whether a duty is owed is a separate and distinct
issue from whether a defense of governmental immunity applies.” Supra ¶ 46. As Justice
Kilbride ably explains:
“The public duty rule is not rooted in sovereign immunity nor did the public duty rule
develop from any concepts of government immunity from suit. Rather, the public duty
rule developed independently and separately from concepts of governmental immunity
[citation] and ‘is grounded in the principle that the duty of the governmental entity to
“preserve the well-being of the community is owed to the public at large rather than to
specific members of the community.” ’ ” Supra ¶ 45 (quoting Zimmerman, 183 Ill. 2d
at 32, quoting Schaffrath, 160 Ill. App. 3d at 1003).
In other words, under the public duty rule, a government entity owes no duty to begin with.
This being the case, a legislative exception to a provision of statutory immunity is of no
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consequence, as absent a duty there can be no liability in the first place and thus nothing to be
immunized from. This court recognized this expressly in Harinek when we said that “although,
absent a statutory immunity, governmental units are now liable in tort on the same basis as
private tortfeasors, the public duty rule nevertheless prevents such units from being held liable
for their failure to provide adequate governmental services.” (Emphasis added.) Harinek, 181
Ill. 2d at 345. If the public duty rule precludes liability wholly absent a statutory immunity,
then it likewise precludes liability when such immunity is granted but then limited.
¶ 88 Justice Kilbride’s third “reason” for departing from stare decisis and abandoning the long
standing public duty rule is that “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.” Supra ¶ 59. Of course, this is just another way of saying that the public duty rule
did not survive the passage of the Tort Immunity Act. But the problem with this, as Justice
Kilbride himself concedes, is that this court has “consistently held that the public duty rule
survived the abolition of sovereign immunity and passage of the Tort Immunity Act.” Id. ¶ 52.
And as for why this court has “consistently held” this, no one could possibly explain it better
than Justice Kilbride does:
“The issue of whether a duty is owed is a separate and distinct issue from whether a
defense of governmental immunity applies. This court has consistently held that the
issue of a duty is separate from the issue of immunity from liability based on that duty.
[Citations.] In Zimmerman, this court explained the distinction between the concepts of
duty and statutory immunities after ratification of the 1970 Constitution:
‘ “The judicial abrogation of sovereign immunity merely abrogated a defense to
any preexisting duty. [Citation.] *** Neither Molitor, nor any waiver of immunity
creates new tort duties and liabilities. [Citations.] Under the inapplicable concept of
sovereign immunity, despite any ‘apparent duty,’ the governmental entity is
immune from tort liability. This does not occur from a denial of the tort’s existence,
but rather because the existing liability in tort is disallowed. In contrast, [under the
rationale of the public duty rule] the tort liability or duty never existed.
[Citations.]” ’ Zimmerman, 183 Ill. 2d at 46 (quoting Martin v. Lion Uniform Co.,
180 Ill. App. 3d 955, 961-62 (1989)).
Zimmerman specifically noted that ‘[t]he distinction between an immunity and a duty
is crucial, because only if a duty is found is the issue of whether an immunity or defense
is available to the governmental entity considered.’ Zimmerman, 183 Ill. 2d at 46.
Because of this distinction between duties and immunities, ‘neither this court’s
decision in Molitor abolishing sovereign immunity, the General Assembly’s passage of
the Tort Immunity Act, nor the ratification of the 1970 Illinois Constitution altered the
common-law public duty rule that a governmental entity generally owes no duty to
provide an individual citizen with specific municipal services.’ Zimmerman, 183 Ill. 2d
at 45.” Id. ¶ 46.
Thus, it is not just that this court has “consistently held” that the public duty rule survived
passage of the Tort Immunity Act. Rather, this court also has consistently explained that the
reason for this holding is that the public duty rule and the Tort Immunity Act have nothing to
do with each other. There is absolutely nothing, then, about the “the legislature’s enactment of
statutory immunities” that renders the public duty rule obsolete.
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¶ 89 As importantly, even if the “the legislature’s enactment of statutory immunities” did
somehow implicate the public duty rule, such legislative action is not a recent innovation, and
it therefore cannot justify a departure from this court’s consistent holding that the public duty
rule has survived such action. Huey was decided in 1968, and it was in 1998 that Harinek
expressly stated that “this court has *** retained the public duty rule.” Harinek, 181 Ill. 2d at
345. How can legislative action that in one case predates even Huey and in all cases precedes
Harinek possibly serve as a basis for overruling those cases in 2015? It cannot, and Justice
Kilbride understandably makes no attempt to explain how it can. It is not enough simply to
assert as a basis for departing from stare decisis propositions that this court has previously
considered and “consistently” rejected. Nor is it enough to cite facts of which the court has
been fully aware for half a century, as if those facts were new. The bottom line is that
absolutely nothing has changed since this court’s decisions in Huey, Harinek, and Zimmerman,
and consequently nothing justifies a departure from stare decisis as to the principles those
cases establish.
¶ 90 To summarize, then, the compelling new reasons that Justice Kilbride gives for departing
from stare decisis and abandoning the long-standing public duty rule are that (1) the rule lends
itself to the use of a common analytical tool and (2) the rule is incompatible with statutory
provisions that have been on the books for decades and that this court has repeatedly held have
nothing to do with the public duty rule. Neither of these reasons is credible, let alone
convincing. And this matters, because the importance of stare decisis is that it “permits society
to presume that fundamental principles are established in the law rather than in the proclivities
of individuals.” Chicago Bar Ass’n, 161 Ill. 2d at 510. That being the case, if the reasons
proffered by Justice Kilbride are sufficient to justify a departure from stare decisis in this case,
then we may as well abandon the stare decisis doctrine altogether. Because if they are good
enough, then anything is good enough, and we need not waste our time going through the
motions of what will essentially have become a hollow exercise.
¶ 91 The Concurring Justices
¶ 92 If Justice Kilbride’s stare decisis discussion is unconvincing, at least it has the benefit of
existing, which cannot be said of the concurring justices’ discussion. Indeed, the concurring
justices reach conclusions wholly contrary to settled precedent of this court without even
mentioning the stare decisis doctrine, let alone applying it.
¶ 93 At one point, the concurring justices assert that they “cannot concur” in the conclusion that
“the abolition of sovereign immunity and the enactment of the Tort Immunity Act did not
affect the viability of the public duty rule.” Supra ¶ 69. At another point, they assert that “the
public duty has always been predicated on the very same basis as the concepts underlying local
governmental immunity,” such that “it is clear that the public duty rule is firmly rooted in the
concept of sovereign immunity.” Id. ¶¶ 70, 72. With respect to my concurring colleagues,
these are not matters for them to decide, as previous courts have spoken directly to these
matters and reached entirely different conclusions. Again, Zimmerman states expressly that
“neither this court’s decision in Molitor abolishing sovereign immunity, the General
Assembly’s passage of the Tort Immunity Act, nor the ratification of the 1970 Illinois
Constitution altered the common law public duty rule that a governmental entity generally
owes no duty to provide an individual citizen with specific municipal services.” Zimmerman,
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183 Ill. 2d at 45. And the reason for this holding was the court’s prior determination in Huey
that “[the public duty] rule existed ‘[i]ndependent[ly] of statutory or common-law concepts of
sovereign immunity.’ ” (Emphasis omitted.) Id. (quoting Huey, 41 Ill. 2d at 363). Now I
understand that the concurring justices might strongly disagree with these conclusions and
therefore wish that they had been on the court when Huey and Zimmerman were decided so as
to speak to those decisions. But that ship has sailed, and that is not how our system works.
Indeed, this court has been emphatic that “stare decisis *** ‘expresses the policy of the courts
to stand by precedents and to not disturb settled points’ ” (People v. Caballes, 221 Ill. 2d 282,
313 (2006) (quoting Neff v. George, 364 Ill. 306, 308-09 (1936))), and therefore we “will not
depart from precedent ‘merely because the court is of the opinion that it might decide
otherwise were the question a new one.’ ” People v. Robinson, 187 Ill. 2d 461, 464 (1999)
(quoting Maki v. Frelk, 40 Ill. 2d 193, 196-97 (1968)). Yet that is precisely what the concurring
justices are doing here.
¶ 94 In his dissent in People v. Mitchell, 189 Ill. 2d 312 (2000), Justice Freeman spoke
passionately in defense of the stare decisis doctrine. I will quote at length from that dissent,
with minor modification, as I am convinced that Justice Freeman makes the best case possible
in opposition to the court’s action today:
“Today’s result sends the unfortunate message to the bench, the bar, and the public
that ‘this court does not decide issues based on the law, but based instead on who
happens to be sitting on the court at a particular time.’ People v. Lewis, 88 Ill. 2d 129,
170 (1981) (Clark, J., concurring). ***
***
As I have endeavored to show by my review of our precedent, not one circumstance
has changed in our [public duty rule] jurisprudence since this court announced its
decision in [Zimmerman]. All of the legal arguments set forth in today’s opinion are the
same arguments that were made and considered at the time [Huey and Zimmerman]
were decided. *** The only ‘circumstance’ that has changed since this court
announced [Zimmerman] is that [Justices Kilbride, Burke, and Theis have since joined
the court]. I submit that this type of ‘circumstance’ does not rise to the level necessary
to overturn the doctrine of stare decisis.
Unfortunately, today’s decision demonstrates that ‘[p]ower, not reason, is the new
currency of this [c]ourt’s decisionmaking.’ Payne v. Tennessee, 501 U.S. 808, 844, 115
L. Ed. 2d 720, 748, 111 S. Ct. 2597, 2619 (1991) (Marshall, J., dissenting, joined by
Blackmun, J.). As noted throughout this dissent, neither the law nor the facts
supporting the [public duty rule] underwent any change since the time that this court
issued its last [public duty rule] case, [Zimmerman], in 1998. Only the personnel of this
court did. One must now wonder how many other of our previous decisions *** will be
similarly overruled on the basis of a change in court personnel. *** If this court can so
cavalierly disregard its own precedent, we surely cannot expect others to follow it nor
can we justly criticize those who do not. Today’s imprudent action invites nothing but
open defiance of our precedent and seriously undermines this court’s legitimacy.
Clearly, there is no genuine reason not to apply [the public duty rule] to the present
case, and the court’s attempt to style its decision as one made to [“resolv[e] the tension
between the judicially created public duty rule and the constitutional abrogation of
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sovereign immunity” (supra ¶ 76)] is beyond credulity. It is obvious to me, at least, that
four members of this court are willing to discard any principle of *** law that, in the
past, was recognized *** and with which four justices currently disagree. This does not
bode well for the future. *** It is my sincere hope that this case will not serve as a
model for future courts to follow.” Mitchell, 189 Ill. 2d at 396-99 (Freeman, J.,
dissenting, joined by Harrison, C.J., and McMorrow, J.).
¶ 95 Conclusion
¶ 96 This court has held that the public duty rule survived the abolition of sovereign immunity
and passage of the Tort Immunity Act. See Zimmerman, 183 Ill. 2d at 45; Huey, 41 Ill. 2d at
363. A question once deliberately examined and decided should be considered as settled and
closed to further argument unless compelling reasons require it. Wakulich v. Mraz, 203 Ill. 2d
223, 230-31 (2003). The doctrine of stare decisis is fundamental to our legal system and
“reflects the policy of the courts ‘to stand by precedents and not to disturb settled points.’ ”
(Internal quotation marks omitted.) Id. at 230 (quoting Zimmerman, 183 Ill. 2d at 47). This
court has examined and applied the public duty rule since abolition of sovereign immunity and
passage of statutory immunities and the continued viability of the public duty rule is settled law
of this state. I find no compelling legal rationale to overrule this precedent and abolish the
public duty rule.
¶ 97 Moreover, I agree with those courts that have identified valid policy considerations that
warrant continued judicial application of the public duty rule. The public duty rule “serves the
important purpose of preventing excessive court intervention into the governmental process by
protecting the exercise of law enforcement discretion.” Ezell v. Cockrell, 902 S.W.2d 394,
400-01 (Tenn. 1995). For example, when a local public entity lacks sufficient resources to
meet every need of its community, police, fire, rescue ambulance, and other emergency
responders “must be able to prioritize and create responses without the benefit of hindsight.”
Sawicki v. Village of Ottawa Hills, 525 N.E.2d 468, 477 (Ohio 1988). Emergency first
responders must often react in the midst of unfolding emergency situations when every
decision they make is fraught with uncertainty and their own safety may be at risk. See Morgan
v. District of Columbia, 468 A.2d 1306, 1311 (D.C. 1983). Indeed, the facts of this case
illustrate the continuing need for the public duty rule. Here, the dispatch centers were so
overwhelmed with emergency calls following a natural disaster that the community could not
meet the demand for police, fire, ambulance, rescue, and other emergency first responders to
the tornado disaster such that mutual aid from surrounding communities was required. 5
5
Justice Kilbride conveniently and conspicuously omits from his opinion the highly relevant fact
that, at the precise time Coretta called the Will County 911 operator, this portion of Illinois was in the
midst of a major tornado outbreak and disaster event. Eight tornadoes occurred that Saturday afternoon
and evening over northeast Illinois. Between 5:18 p.m. and 6:30 p.m., four EF2 tornadoes struck Will
County, causing injuries and widespread damage and destruction. The first EF2 tornado struck
Kankakee and Will Counties, beginning at 5:18 p.m. and ending at 5:46 p.m., with a path length of 13.6
miles. This first tornado snapped and uprooted trees, blew down power lines, and caused extensive
damage to homes and buildings. A second EF2 tornado struck Will County from 5:51 p.m. to 5:55 p.m.,
with a path length of 1.8 miles. The second tornado occurred in an open area with few trees and
structures and a few buildings were damaged or destroyed. A third EF2 tornado struck Will County
from 5:55p.m. to 6:08 p.m., with a path length of 3.7 miles. This third tornado caused extensive tree
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Defendants’ duty in responding to 911 calls for medical and disaster related emergencies
required balancing the needs of the entire community. Under circumstances such as a mass
disaster, local public entities must have the flexibility to prioritize and respond to community
emergencies without having their judgment questioned.
¶ 98 Additionally, “[t]he public duty doctrine is based on the policy determination that when a
governmental entity assumes a duty to protect the general public from harms such as criminal
activity, holding the entity liable for a breach of this duty would cause municipalities to be
‘mired hopelessly in civil lawsuits ... for every infraction of the law.’ ” Cope v. Utah Valley
State College, 342 P.3d 243, 248 (Utah 2014) (quoting Prosser v. Kennedy Enterprises, Inc.,
179 P.3d 1178, 1183 (Mont. 2008)). Local public entities often provide needed services for
their communities where the risk of potential liability to individuals would discourage local
public entities from providing those services.
¶ 99 For all of these reasons, this court should affirm what is true—that the public duty rule and
the special duty exception to the public duty rule remain viable in Illinois. The issue of whether
a local public entity owes a duty is a wholly distinct and separate inquiry from the issue of
whether immunity is available as a defense to tort liability. For these reasons, I dissent from the
court’s judgment today and would affirm the judgments of the appellate court and circuit court
of Will County.
¶ 100 CHIEF JUSTICE GARMAN and JUSTICE KARMEIER join in this dissent.
damage, downed power lines, and extensive damage and destruction to homes and other buildings.
Coretta’s call to 911 came in at 6:10 p.m.
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