Uncertainty Surrounds the Public Duty Rule

In 1855, the U.S. Supreme Court turned away a lawsuit filed against a local sheriff who allegedly failed to first protect and then rescue a local citizen from his kidnappers.  South v. Maryland, 59 U.S. 396 (1855).

Had the plaintiff shown that the sheriff had acted maliciously, then maybe he would have had a claim.  But the duty owed by the sheriff to keep the peace, the court found, was “a public duty, for neglect of which he is amenable to the public and punishable by indictment only.”

And so the public duty rule was born.  Under this rule, a municipality and its employees are not liable for their failure to supply general police or fire protection.  Huey v. Town of Cicero, 41 Ill.2d 361, 363 (1968).  Their duty is to protect the well-being of the community at large, not specific members of the public.  Zimmerman v. Village of Skokie, 183 Ill.2d 30, 44 (1998).

Various public policy justifications have been mad for this rule, including the impracticability of requiring a public official charged with enforcement or inspection duties to be responsible for every infraction of the law; allowing the government to enact laws for the protection of the public without exposing the taxpayers to open-ended and potentially crushing liability from its attempts to enforce them; the danger that exposing governmental entities to liability for failure to adequately enforce laws designed to protect everyone would discourage municipalities from passing such laws in the first place; and so forth.  See 18 E. McQuillin, The Law Of Municipal Corporations. Section 53.04.25, at 199 (3^rd Ed. 2003).

Courts have found that this rule is different from a run-of-the-mill “immunity,” characterizing it instead as a “negative defense” because it “denies the existence of a duty to the individual.”  See e.g., Vaughan v. Town of Lyman, 635 S.E.2d 631, 634 (S.C. 2006); Ex parte Randall, 971 So.2d 652, 677, n.17 (Ala. 2007).  Though courts have recognized a limited exception to the public duty rule known as the “Special Duty” doctrine (DeSmet v. County of Rock Island, 219 Ill.2d 497, 519-20 (2006); Gardner v. Village of Chicago Ridge, 71 Ill.App.2d 373, 378 (1966)), this rule, in tandem with the various immunity provisions contained in the Local Governmental and Tort Immunity Act, has been utilized by state and local municipalities and their employees as a defense to many lawsuits.

Several courts have intimated, however, that this tow=pronged defense (public duty rule + immunity provisions) may be inappropriate.  They say that the public duty rule was codified into specific provisions of the Act and that it no longer exists independently.  See Doe v. Calumet City, 161 Ill.2d 374, 385 (1994) (“This common law protection afforded municipalities became embodied in statutory immunities granted under the Tort Immunity Act”), overruled sub silentio on other grounds by Zimmerman, 183 Ill.2d at 46-50; Aikens v. Morris, 145 Ill.2d 273, 278, n.1 (1991) (“We note, however, in an effort to preserve the clarity of our jurisprudence, that section 4-102 of the Tort Immunity Act codifies the separate common law rule that municipalities or their employees are not liable for failure to supply police or fire protection”); see also Wade v. City of Chicago, 364 IllApp.3d 773, 780 (2006); Ozik v. Gramins, 345 Ill.App.3d 502, 514, (2003); Fatigato v. Village of Olympia Fields, 281 Ill.App.3d 347, 355 (1996).  More recently, our supreme court recognized (but punted) the argument that the public duty rule, in the context of providing general police protection services, was codified in section 4-102 of the Act.  See DeSmet, 219 Ill.2d at 508 (recognizing Aikens as holding that public duty rule for police was codified in section 4-102).

How did this happen?  The answer may lie in Illinois’ history of governmental immunity and liability.

Originally, in Illinois as in most other states, governmental entities were generally immune from tort liability under the doctrine of sovereign immunity.  DeSmet, 219 Ill.2d at 505.  in 1959, our supreme court abolished sovereign immunity, finding that the notion that the “Kind can do no wrong” had “no rightful place in modern day society.”  See Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11,25, (1959).

Six years later, in response to Molitor, the Act was passed to “protect local public entities and public employees from liability arising from the operation of government.”  DeSmet, 219 Ill.2d at 505.  under the Act, municipalities would generally be liable in tort to the same extent as private parties.  Barnett v. Zion Park District, 171 Ill.2d 378, 386 (1996) (“Governmental units are liable in tort on the same basis as private tortfeasors unless a valid statute dealing with tort immunity imposes conditions upon that liability”).  That general rule is limited by the Act’s various immunity provisions which set out “whether and in what situations local governmental units are immune from civil liability.”  Harrison v. Hardin County Community Unit School Dist, No 1, 197 Ill.2d 466, 471 (2001).

Both Molito’s abolition of sovereign immunity and the Act’s governmental-liability framework were validated by the ratification of the Illinois constitution in 1970.  Harineck v. 161 North Clark Street Ltd. Partnership, 181 Ill.2d 335, 344 (1998).  Specifically, Article XIII, section 4, of the Illinois Constitution made the General Assembly the ultimate authority in determining whether and in what situations local units of government are immune from liability.  DeSmet, 219 Ill2d at 506, citing Harineck, 181 Ill.2d at 344-45.  this provision embodied the presumptive rule from Molitor that units of local government are subject to tort liability to the same extent as private individuals.  See Zimmerman, 183 Ill.2d at 44.

So how does that history lead to the abolition of the public duty rule as a defense independent of the Act and its codification into the Act?  First, some states have found that the public duty rule was so intertwined with the notion of sovereign immunity that the abolishment of the latter necessarily resulted in the abolishment of the former.  They find that because the public duty rule “is a function of municipal sovereign immunity and not a traditional negligence concept which has meaning apart from the governmental setting,” its existence is “dependent on the continued vitality of the doctrine of sovereign immunity.”  Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1015 (Fla. 1979).  Thus, once sovereign immunity went out the window, so too did the public duty rule.  See e.g., Natrona County v. Blake, 81 P.3d 948 (Wyo. 2003); Schear v. Board of County Commissioners of Bernalillo County, 687 P.2d 728 (N.M. 1984); Wilson v. Nepstad, 282 N.W. 2d 664 (Iowa 1979); Coffee v. City of Milwaukee, 247 N.W. 2d 132 (Wis. 1976).

Second, some of the Act’s immunity provisions seem to cover the very areas that the public duty rule was concerned with.  For instance, section 4-102 of the Act grants immunity for the “failure to establish a police department,” “otherwise provide police protection service,” or “for the failure to provide adequate police protection or service.”  745 ILCS 10/4-102 (West 2002).  Section 2-202 immunizes liability stemming from injuries caused by the execution and enforcement of law unless willfully and wantonly done.  745 ILCS 10/2-202 (West 2002).  These “immunities” would appear to encompass what the public duty rule characterized as “general police protection.”  See Huey, 41 Ill.2d at 363.

In the context of providing general fire protection, sections 5-102 of the Act appear to have codified the rule.  See 745 ILCS 10/5-101 (West 2002) (“Neither a local public entity nor a public employee is liable for failure to establish a fire department or otherwise provide fire protection, rescue or other emergency service”) (emphasis added); 745 ILCS 10/50102 (“Neither a local public entity that has undertaken to provide fire protection service nor any of its employees is liable for an injury resulting from the failure to suppress or contain a fire or from the failure to provide or maintain sufficient personnel, equipment or other fire protection facilities”).  So it would appear that the public duty rule is redundant of the immunities already contained in the Act.

Third, it may be that continued recognition of the public duty rule as a “defense” separate from the immunities contained in Act is unconstitutional.  The Illinois constitution granted to the General Assembly the ultimate authority for determining whether and in what contexts local units of government are immune from liability.  Through the enactment of the Act, the General Assembly did just that by creating a framework for when a local governmental unit and its employees will and will not be subject to liability for their acts or omissions.  And the Act states that “any defense or immunity, common law or statutory, available to any private person shall likewise be available to local public entities and public employees.”  745 ILCS 10/1-101.1(b) (West 2002).  Because the “public duty rule” was obviously unavailable to private persons as a defense to liability, so the argument goes, a municipality may not rely upon it as well.  On the other hand, prior cases have affirmed the continuing viability of the rule despite the passage of Act.  See e.g., Zimmerman, 183 Ill.2d at 45 (“In Huey, this court determined that the public duty rule remained viable, even after the passage of the Tort Immunity Act, on the basis that the rule existed “independent[ly] of statutory or common-law concepts of sovereign immunity’”); Huey, 41 Ill.2d at 363 (“Independent of statutory or common-law concepts of sovereign immunity, the general rule is that a municipality or its employees is not liable for failure to supply general police or fire protection”).  The rule continues to exist, they say, because duty and immunity are two different issues:” ‘[u]nlike immunity, which protects a municipality from liability for breach of an otherwise enforceable duty to the plaintiff, the public duty rule asks whether there was any enforceable duty to the plaintiff in the first place.;”  Zimmerman, 183 Ill.2d at 46, quoting 18 E. McQuillin, The Law of Municipal Corporations, section 53.04.25, at 199.

In DeSmet, our supreme court noted the issue, but did not address it because it found that “even if these ‘”governmental units are liable in tort on the same basis as private tortfeasors”’ [citations omitted],” the Act immunized the at-issue conduct by the defendants.  Recently, in a lawsuit against emergency responders for their failure to assess, examine, or transport the plaintiff’s unresponsive minor son to a hospital, the court suggested that it might have addressed the issue, but the City did not raise it.  See Abruzzo v. City of Park Ridge, 2008 WL 4427089, at 13 (2008) (“We also note that the City has not challenged the existence of a duty to provide emergency medical assistance in this case”).  So the uncertainty of whether the public duty rule still exists, and in what form, in Illinois remains.