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Governmental immunity and the quest for a ‘willful and wanton’ escape hatch

Chicago Daily Law Bulletin August 29, 2014

Premise Liability Lawyer, Colin H. Dunn – Aviation Accident Attorney

Colin H. Dunn is a partner at Clifford Law Offices who concentrates in personal injury and aviation law and handles complex and mass tort litigation

Whenever a governmental entity is sued, the plaintiff typically will have to tangle with one or more tort immunity provisions to be successful.

There are three basic types of immunity:

  • One that provides absolute, unqualified immunity — e.g., 745 ILCS 10/4-102 (“Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes, failure to detect or solve crimes and failure to identify or apprehend criminals. This immunity is not waived by a contract for private security service, but cannot be transferred to any non-public entity or employee”).
  • One that provides immunity for claims based on negligence but not for willful and wanton conduct — e.g., 745 ILCS 10/2-202 (“A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct”).
  • One that permits negligence claims but adds certain parameters — e.g., 745 ILCS 10/3-102(b) (in premises liability cases, permitting the governmental entity to disprove that it had constructive notice of the dangerous condition if it establishes either that “the existence of the condition and its character of not being reasonably safe would not have been discovered by an inspection system that was reasonably adequate” or it “maintained and operated such an inspection system with due care and did not discover the condition”).

There was a time when it didn’t matter whether the immunity provision fell within the first or second category since the Illinois Supreme Court had suggested there was a general “willful and wanton conduct” exception to all tort immunity provisions. See Doe v. Calumet City, 161 Ill.2d 374, 390 (1994) (“plaintiffs can escape the statutory immunities granted municipalities and their employees either by proving facts that show the existence of a special duty and proving simple negligence or by proving willful and wanton conduct alone”).

But Doe is dead ( Ries v. City of Chicago, 242 Ill.2d 205, 227 (2011)), so which provision applies determines the fate of the plaintiff’s case: If the plaintiff’s allegations implicate a tort immunity provision that does not have a so-called willful and wanton exception, the governmental entity is absolutely immune from liability.

Now, the governmental-entity defendant and the plaintiff engage in a tug-of-immunity-war, the former claiming an absolute immunity provision applies and the latter arguing that, if any immunity provision applies, it’s one with a willful and wanton exception.

The Supreme Court has explained that when multiple immunity provisions potentially apply to a case, the one that more directly addresses “the situation giving rise” to the plaintiff’s injury governs. Murray v. Chicago Youth Center, 224 Ill.2d 213, 234 (2007).

Recently, the 1st District Appellate Court had to make that call in Payne v. City of Chicago, 2014 IL App (1st) 123010.

The plaintiff in Payne bought crack cocaine, returned to his mother’s house, locked the door to his room, removed his clothes, smoked the crack and began watching a pornographic movie. When he started to hallucinate that he was being attacked, his relatives called the police for help. A responding sergeant used a stun gun to subdue him, and the plaintiff then either jumped out of the second-floor window or fell out of the window due to the jolt.

He was left a high-level paraplegic as result of the fall.

The circuit court granted summary judgment to the city of Chicago based on Section 4–102 of the tort immunity act noted above. On appeal, the plaintiff claimed the circuit court erred because Section 2–202, which applies to claims relating to the execution or enforcement of the law and contains an exception for willful and wanton conduct, was more applicable.

To analyze which provision more directly addressed the plaintiff’s allegations, the appellate court noted the difference between “providing police protection or service” under Section 4–102 and “executing and enforcing the law” under Section 2–202.

Courts have applied the “adequate police protection or service” language in Section 4–102 to cases involving “police aid, assistance or rescue.” See Kavanaugh v. Midwest Club Inc., 164 Ill.App.3d 213, 221 (1987) (finding Section 4-102 barred claims that police officer acted negligently in attempting to rescue a driver from a submerged car when the officers did not have proper equipment for the rescue); Trepachko, 184 Ill.App.3d at 247 (Section 4–102 applied where a police officer directed a vehicle across a highway while shining a blinding spotlight on the driver, causing the driver to collide with the plaintiff’s vehicle).

“Because these functions are commonly recognized as an important part of police service … the legislature intended to grant immunity for this type of service as well as for police protection.” Kavanaugh, 164 Ill.App.3d at 221.

Section 2–202, on the other hand, “provides immunity only where the public employee is negligent while actually engaged in the execution or enforcement of a law.” Barnett v. Zion Park District, 171 Ill.2d 378, 391 (1996). “Section 4–102 immunity may apply in the context where police officers are simply ‘providing [or failing to provide] police services,’ but Section 2–202 immunity requires more particular circumstances for its application, i.e., an act or a course of conduct ‘in the execution or enforcement’ of law.” Aikens v. Morris, 145 Ill.2d 273, 282 (1991).

The court found that Section 4-102 was more applicable because “the officers were not at [the] plaintiff’s home responding to a call that a crime may have just been committed, and they were not investigating a crime or a traffic Accident, making an arrest or issuing a citation or quelling a public breach of the peace. Rather, the officers came to plaintiff’s home in response to a call for police assistance.”

In sum, “The police were there not to enforce or execute any law, nor to provide any medical attention (as other personnel were dispatched and on the scene), but rather to provide police assistance to subdue plaintiff for plaintiff’s own safety and the safety of his family members.”

The court rejected the plaintiff’s argument that the officers’ conduct changed from providing police services to executing and enforcing the law when they decided to use a stun gun to subdue the plaintiff. The court noted that the plaintiff failed to provide “any argument or evidence of what law they were executing or enforcing at the time they used the Taser.”

Because the officers — in employing a stun gun while responding to a call for emergency assistance — were providing a police service, they were immune from suit under Section 4–102, and the court affirmed the grant of summary judgment to the city.

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