I Fought the Law and the Law Won: Local Governmental Entity Liability under the Tort Immunity Act from Plaintiffs and Defendants Perspectives

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1 PEORIA COUNTY BAR ASSOCIATION 2015 WINTER SERIES CIVIL PRACTICE I Fought the Law and the Law Won: Local Governmental Entity Liability under the Tort Immunity Act from Plaintiffs and Defendants Perspectives Prepared and presented by: David Perkins Heyl, Royster, Voelker & Allen Peoria, Illinois Philip O Donnell Kingery, Durree, Wakeman & O Donnell, Assoc. Peoria, Illinois Materials prepared with the assistance of: Melissa Schoenbein Heyl, Royster, Voelker & Allen Peoria, Illinois

2 I. OVERVIEW The State of Illinois enacted the Local Governmental and Governmental Employees Tort Immunity Act ( Tort Immunity Act ), 745 ILCS 10/1-101 et seq., in The Tort Immunity Act establishes a variety of immunities for government bodies and their employees. The Act reflects the principle that local governments are liable in tort, but that liability is limited by the extensive immunities and defenses set forth in the Act. Immunity under the Act is an affirmative defense and is the defendant s burden to establish. The Act contains 10 articles. The substantive tort immunity provisions are contained in Article II (general provisions relating to immunity), Article III (immunity from liability for injury occurring in the use of public property), Article IV (police and correctional activities), Article V (fire protection and rescue services), and Article VI (medical, hospital, and public health activities). The Tort Immunity Act does not apply to claims brought pursuant to 42 U.S.C because of the Supremacy Clause of the United States Constitution. II. STATUTE OF LIMITATIONS Under 745 ILCS 10/8-101(a), there is a one-year statute of limitations for a civil action to be filed against a local entity or any of its employees for injuries. 745 ILCS 10/8-101(a): No civil action other than an action described in subsection (b) may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued. There is a two-year statute of limitations for claims arising out of patient care. 745 ILCS 10/8-101(b): No action for damages for injury or death against any local public entity or public employee, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of those dates occurs first, but in no event shall such an action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in the action to have been the cause of the injury or death. 1

3 Suits against governmental entities or public employees based on a breach of a written contract are subject to a ten-year statute of limitations rather than the one-year limitations period under the Act. See United Airlines, Inc. v. City of Chicago, 2011 IL App (1st) Plaintiff case - Collins v. Town of Normal, 951 N.E.2d 1285 (4th Dist. 2011): In this case, plaintiff filed suit for retaliatory discharge based upon having a Workers Compensation claim pending at the time of dismissal by the Town of Normal. The Circuit Court ruled that section applied and dismissed the case with prejudice because plaintiff filed suit more than one year from the date of termination. The Fourth District reversed this dismissal holding that the five year statute of limitation in section of the Code of Civil Procedure applied because the claim for retaliatory discharge was not a tort within the meaning of the Tort Immunity Act. Thus, section was inapplicable. Section is the general statute of limitations for civil claims not based upon personal injury or written contract. Plaintiff case - United Airlines, Inc. v. City of Chicago, 954 N.E.2d 710 (1st Dist. 2011): United Airlines filed a breach of contract action against the City arising out of a collision between a plane and a City truck. The plane was given permission to take off, but there was a City truck in the grass next to the taxiway that the City failed to disclose to ground control. The truck obstructed the path and a collision occurred, resulting in damage to the plane. The appellate court held that while a tort action against the City would be subject to the one-year limitations period for civil actions against governmental entities set forth in the Tort Immunity Act, an action against the City for a breach of a written contract is subject to the ten-year limitations period. A cause of action constitutes an action on a written contract only when liability emanates from the breach of a contractual obligation. To determine which limitations period applies, a court will evaluate the complaint to ascertain the true character of the plaintiff s cause of action. Defendant case - Ponto v. Levan, 972 N.E.2d 772 (2d Dist. 2012): In this case, plaintiff filed a personal injury lawsuit against the driver of another vehicle after an accident. That defendant driver filed a claim for contribution against the City of Dixon. The defendant alleged negligent maintenance of the municipal water line, which caused water to run onto the road and freeze, potentially contributing to the collision between the plaintiff and defendant s vehicles. Plaintiff did not file a direct suit against the City of Dixon. The case went to trial with an apportionment of fault instruction. The defendant driver was underinsured. Plaintiff attempted to seek judgment recovery against the City of Dixon, despite not filing a direct complaint against the municipality. The Second District ruled that the one-year statute of limitation in section is not tolled by the length of time that defendant had filed suit for contribution against the city, which was a timely claim for contribution. Therefore, plaintiff, who did not sue the city directly, could not recover on the judgment from the City of Dixon. The at-fault defendant driver similarly could not seek to recover on the contribution judgment until that driver had paid his apportioned share of the judgment (which he could not). This case illustrates the trap for 2

4 the unwary plaintiff that can arise under section The plaintiff s attorney was lulled into believing a recovery could be made directly against the City of Dixon simply because a contribution suit was filed by the other defendant driver against the municipality. There is also a lengthy discussion of the distinction between discretionary acts involving the determination of policy for which section of the Act is applicable, as opposed to repair functions and the maintenance of the water lines of the municipality, which are ministerial acts subject to a duty of ordinary care. The Appellate Court ruled that the contribution claim of the defendant driver was not barred by the discretionary immunity of section because proof was submitted at trial that this was purely negligent maintenance of the municipal water system which caused the ice to form on the roadway. Defendant case - Ferguson v. McKenzie, 202 Ill. 2d 304 (Ill. 2001): Mr. Ferguson went to a clinic at Cook County Hospital to have cataracts removed. Shortly after his cataracts were removed, he suffered cardiac arrest and died. At the time of his death, he had a wife, four adult children, and one minor child. The minor child, Karen, was seventeen at the time. A little more than one year after the decedent s death, plaintiff brought a medical malpractice suit against the hospital and its employees. Plaintiff added a separate wrongful-death count, brought on behalf of Karen when she was nineteen, which named Cook County as a defendant. Defendants moved for summary judgment and argued the lawsuit was untimely because plaintiff failed to file the complaint within one year of the occurrence as required under section of the Tort Immunity Act. Plaintiff argued the complaint was timely under 735 ILCS 5/13-212(a) because an adult can file a medical malpractice claim within two years and a minor can file a claim within eight years under section (b). The court considered the interplay between section of the Code and section of the Tort Immunity Act. The court held the one-year limitation period of the Tort Immunity Act applied to all medical malpractice claims brought against governmental entities and their employees, including claims brought on behalf of minors. The court held that a one-year limitation period under the Tort Immunity Act began to run when Karen reached eighteen. III. WILLFUL AND WANTON CONDUCT Generally, governmental entities and public employees enjoy absolute immunity under the Act, unless their act or omission was willful and wanton. Section of the Tort Immunity Act defines willful and wanton conduct. 745 ILCS 10/1-210: Willful and wanton conduct as used in this Act means a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property. This definition shall apply in any case where a "willful and wanton" exception is incorporated into any immunity under this Act. 3

5 The definition applies in any case where a willful and wanton exception is incorporated into any immunity under the Tort Immunity Act. 745 ILCS 10/ Plaintiff case - Carlson v. Bremen High Sch. Dist. 228, 423 F. Supp. 2d 823 (N.D. Ill. 2006): Two high school students brought invasion of privacy, negligent infliction of emotional distress, and intentional infliction of emotional distress claims against a high school dean, who ordered the students to submit to strip searches. The court held that the dean was not entitled to immunity under section of the Tort Immunity Act because the students sufficiently asserted facts that showed the dean committed willful and wanton misconduct as defined in section The court held that section provided immunity for the dean s discretionary acts, but section did not protect the dean from liability arising from her intentional, wanton, and willful misconduct. Defendant case - Pomaro v. Cmty. Consol. Sch. Dist., 278 Ill. App. 3d 266 (1st Dist. 1995): A student was injured while she was racing another student outside on the playground during a physical education class. The students slipped and fell on some loose asphalt on the playground. In the lawsuit that followed, the school district raised the defense of section of the Tort Immunity Act. Section provided in relevant part that neither a local public entity nor a public employee would be liable for an injury where the liability was based on the existence of a condition of any public property intended or permitted to be used for recreational purposes unless such entity was guilty of willful and wanton conduct proximately causing such injury. The court held that neither the condition maintained by the school district nor the degree of supervision by the gym teacher provided a basis for a cause of action predicated upon willful and wanton conduct. IV. PUNITIVE DAMAGES Section of the Tort Immunity Act states that local public entities are not liable to pay punitive or exemplary damages in any action brought directly or indirectly by an injured party or a third party. In addition, public officials are not liable for punitive or exemplary damages in any action arising out of an act or omission made while serving in an official executive, legislative, quasi-legislative or quasi-judicial capacity. 745 ILCS 10/2-102: Notwithstanding any other provision of law, a local public entity is not liable to pay punitive or exemplary damages in any action brought directly or indirectly against it by the injured party or a third party. In addition, no public official is liable to pay punitive or exemplary damages in any action arising out of an act or omission made by the public official while serving in an official executive, legislative, quasi-legislative or quasi-judicial capacity, brought directly or indirectly against him by the injured party or a third party. 4

6 V. GOVERNMENTAL ENTITIES AND EMPLOYEES Article II, Part 2, of the Tort Immunity Act provides immunity to governmental entities and public employees. Section provides a detailed definition of a local public entity. 745 ILCS 10/ A local public entity includes a county, township, municipality, municipal corporation, school district, school board, educational service region, regional board of school trustees, trustees of schools of townships, treasurers of schools of townships, community college district, community college board, forest preserve district, park district, fire protection district, sanitary district, museum district, emergency telephone system board, library systems, any intergovernmental agency, and any not-for-profit corporation organized for the purpose of conducting public business. The definition of local public entity does not include the State or any office, officer, department, division, bureau, board, commission, university, or similar agency of the State. A. The Determination of Policy or the Exercise of Discretion 745 ILCS 10/2-201: Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.. Plaintiff case - Robles v. City of Chicago, 2014 IL App (1st) : In this case, the plaintiff s decedent was shot by a City of Chicago police officer and the executor alleged that the officer s conduct was willful and wanton in nature. The circuit court granted the City s motion for summary judgment. The First District reversed, finding that there were sufficient facts in the discovery to suggest that the officer s conduct may have been willful and wanton, which was an issue of fact for the jury. The First District noted that there was a conflict in the testimony amongst the various police officers involved as to what had happened. The City of Chicago raised the immunity of section as a complete immunity to the plaintiff s willful and wanton claims. The First District rejected the applicability of section and emphasized that under section 2-202, plaintiff s claim clearly fell within the willful and wanton exception for the immunity applicable when an officer is executing or enforcing a law. The First District did not apply section because no policy determination involving the exercise of discretion was involved. Plaintiff case - Robinson v. Wash. Twp., 976 N.E.2d 610 (3d Dist. 2012): Plaintiff sustained a head injury after his vehicle hit a pot hole in the construction location. Plaintiff filed suit against the township that maintained a roadway which was under repair. The township filed a motion for summary judgment, which the trial court granted, asserting that the township s decisions as to how to maintain the roadway while construction was ongoing were discretionary decisions. The Third District reversed the summary judgment order. The appellate court held that the township had made the discretionary decision to fill pot holes and upgrade the roadway where the accident had occurred. The appellate court 5

7 emphasized that since the discretionary decision to actually undertake to fix the road had already been made, the township s actions in fulfilling that decision to repair the road thus became ministerial in nature once the work started. Therefore, the blanket immunity of section was inapplicable, and the township was subject to the duty of ordinary care in filling the pot holes in the roadway and removing debris in the roadway. Plaintiff case - Gutstein v. City of Evanston, 402 Ill. App. 3d 610 (1st Dist. 2010): Plaintiff filed suit against the City of Evanston, alleging that she fell and suffered injuries to her elbow resulting from the municipality s negligent maintenance of an unimproved alley in the back of plaintiff s home. The jury was instructed under the duty of ordinary care of section 3-102(a). Plaintiff proved the City was negligent in the maintenance of the alley in the location where the garbage waste bins were situated, and the jury returned a verdict for plaintiff. The City of Evanston appealed and argued that its decision whether or not to improve and maintain the alley location were discretionary acts in the context of determining the policy of the City for maintenance. The First District appellate court rejected this argument finding that plaintiff had proven that he was an intended and permitted user of the alley within the meaning of section 3-102(a) and the City s maintenance decisions regarding the upkeep of the alley s location where the garbage waste bins are situated were ministerial in nature, and not discretionary. Therefore, the blanket immunity of section was inapplicable and the verdict for the plaintiff was affirmed. Plaintiff case - S.J. v. Perspectives Charter Sch., 685 F. Supp. 2d 847 (N.D. Ill. 2010): Plaintiff, a female eighth grade student at Perspectives Charter School, was strip searched by the school s security guard and police officer. The plaintiff removed her shirt, undershirt, pants, and shoes. While conducting the search, the police officer patted her sock-covered feet and the security guard shook the bra she was wearing. The City employed the police officer who worked at school. The school argued it was immune from liability under section of the Tort Immunity Act. Plaintiff argued that the school had a special duty to keep the students safe. The student argued that she suffered harm as a result of defendants willful and wanton retention of employees. In response, the school argued that because the retention of employees is a policy decision, it was immune from liability under section of the Tort Immunity Act. The court reasoned that section only shields an employee where the term employee includes a present or former officer, member of a board, commission or committee, agent, volunteer, servant or employee. 745 ILCS 10/ The court held because Perspectives was a charter school, and not an employee under this definition, its actions are not shielded by section Defendant case - Wright v. Moss, 2015 IL App (5th) : This unique case addressed the determination by a county coroner to perform an autopsy on the plaintiff s decedent. Plaintiff was the widow and had objected to the coroner s decision to conduct the autopsy on her husband. The county coroner raised the section immunity and his motion for summary judgment was granted by the trial court. The Fifth District affirmed the summary judgment order and emphasized that the applicable Illinois statute for the coroner gave him the discretion to make a determination in certain circumstances which in his opinion might 6

8 be suspicious or mysterious, and thus warrant an autopsy. The opinion emphasized that the coroner exercised his discretion in making this judgment call by balancing competing information. This was a policy determination made on a case-by-case basis because the statute deferred to the coroner s opinion on whether or not to perform the autopsy. The appellate court rejected plaintiff s assertion that there was nothing suspicious or mysterious about the decedent s death, which would have allowed for the coroner to exercise his discretion under the applicable statute. This case stands for the proposition that if a county coroner wants to perform an autopsy on someone, he must simply be of the opinion that there is something suspicious that necessitates the autopsy, even if there is competing evidence to suggest otherwise. Defendant case - Malinski v. Grayslake Cmty. Sch. Dist. 127, 2014 IL App (2d) : In this case, the plaintiff, a high school student, alleged willful and wanton conduct on the part of the School District in failing to provide a safe environment for the student given bullying by other students. The circuit court granted the School District s motion for summary judgment. The appellate court affirmed the trial court s summary judgment order, finding that the response by the School District to bullying was not a ministerial act, but rather the exercise of discretion, and thus the implementation of policy on a case-by-case basis. The First District s opinion emphasized that the defendant s applicable anti-bullying policy did not mandate a specific or itemized particular set of responses and that the school staff was exercising their discretion as to how to deal with the plaintiff s complaints of bullying. Defendant case - Richter v. College of DuPage, 2013 IL App (2d) : In this case, plaintiff tripped and fell on a public sidewalk located on a community college property owned by DuPage County. The sidewalk slabs were uneven. The property manager for the college made a policy decision to take a wait and see approach with regard to which sidewalks needed repairs after the winter season. The appellate court ruled that this particular public entity property owner had no set of rules in place as to how the property manager made repair determinations. Therefore, the appellate court emphasized that the public entity was exercising its sole discretion in making determinations on which sidewalks to upgrade. The appellate court affirmed summary judgment for the public entity because these decisions were not ministerial decisions for which a duty of ordinary care might be owed, but rather were discretionary decisions to which the blanket immunity of section was applicable. Defendant case - Hascall v. Williams, 2013 IL App (4th) : This case addresses the difficult subject matter of failures by school administrators and teachers to prevent or remedy bullying of students. The appellate court held that the immunity of section 2-201, which does not have an exception for willful and wanton conduct, was applicable because the defendant school staff performed discretionary acts in determining how to deal with a young student s claims of bullying. In this case, the teacher denied the student s request to transfer classrooms to avoid the bully. This Fourth District opinion contains a good discussion of the two prong test for determining whether section immunity applies. 7

9 First, the public employee must be in a position to make a policy determination on the matter at issue. Second, the employee must exercise his or her discretion in performing this policy determination. The appellate court emphasized that the section immunity was an absolute immunity, and rejected plaintiff s argument that the willful and wanton exception contained in section of the Act regarding an employee acting in the execution or enforcement of the law should have allowed the claim to proceed. The appellate court emphasized that section could provide blanket immunity despite lesser immunity afforded by section with respect to the school staff enforcing the provisions of the School Code. The section willful wanton exception was thus inapplicable, and the claim was barred. Defendant case - Fender v. Town of Cicero, 347 Ill. App. 3d 46 (1st Dist. 2004): Family members sued a town and the town s police officers for the officers failure to rescue a family from a house fire caused by arson. The fire resulted in the deaths of five children. The family members who survived suffered injuries from exposure to flames and smoke. One of the issues before the court was whether the officers decision to not rescue the family was willful and wanton. The court held that even if the officers acts were willful and wanton, immunity would still apply under section of the Act, because the officers had to make a policy decision in balancing competing interests of their own safety and their chances of rescuing the victims successfully. The officers actions were discretionary because performing an emergency rescue was unique to their job as police officers. Therefore, the court held the police officers were immune from liability under section of the Act. Defendant case - Harrison v. Hardin Cnty. Cmty. Unit Sch. Dist. No. 1, 197 Ill. 2d 466 (Ill. 2001): A motorist who was injured after colliding with a high school student, who was driving home in inclement weather after school, sued the high school student, the owner of the vehicle, and the school district. Plaintiff alleged the school officials were willful and wanton in refusing the student s request to leave school early due to the weather. The court held the school principal made a policy decision when he refused the student s request for an early dismissal and instead told him to wait for the entire school to be dismissed early due to the bad weather. The court held the principal and the school district were entitled to immunity under section of the Tort Immunity Act. B. Executing or Enforcing the Law 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. Plaintiff case - El-Uri v. City of Chicago, 186 F. Supp. 2d 844 (N.D. Ill. 2002): A detainee alleged he was assaulted by a police officer and brought suit against the City of Chicago. Plaintiff was a methadone-dependent drug addict and an alcoholic who was drinking heavily with his friend. After drinking for awhile, he found his friend unconscious and dead and called the police and the paramedics. Plaintiff accompanied two Chicago police detectives 8

10 to a police station to assist them in their investigation of his friend s death. At the station, one of the detectives brutally punched, kicked, and beat plaintiff. The beating ruptured plaintiff s spleen. The police detectives took plaintiff home without attending to his medical needs. Plaintiff went to the hospital shortly after arriving home, where he was diagnosed with a ruptured spleen, which was subsequently removed. The court reasoned the detectives demonstrated deliberate indifference when they failed to provide medical attention after plaintiff screamed in pain for an extended period of time, spit up fluid, and hobbled around painfully. The court held the police detectives were not entitled to immunity under section of the Tort Immunity Act because a jury could find that their conduct was willful and wanton. Defendant case - Morton v. City of Chicago, 286 Ill. App. 3d 444 (1st Dist. 1997): A bystander was injured when she was involved in a vehicular accident with a suspect who was being pursued by the police. The suspect s vehicle careened into the bystander sitting at a bus stop. The accident rendered the bystander a paraplegic. The bystander brought an action against the City alleging negligence and willful and wanton conduct. The bystander argued the police officers involved in pursuing the suspect were not engaged in law enforcement at the time of the incident. However, the police believed that the suspect and the passengers in his vehicle had been involved in drive-by shootings. The officers stopped behind the suspect s vehicle, and one of the passengers in the vehicle drew a gun on the officers. The vehicle sped off, violating numerous traffic laws. The police officers pursued the suspect s vehicle. The court called plaintiff s arguments baseless and reasoned the officers were engaged in law enforcement at the time the bystander was injured. Therefore, the court held the City was immune from the negligence claim under section of the Tort Immunity Act. C. Unconstitutional, Invalid, or Inapplicable Enactment 745 ILCS 10/2-203: If a public employee acts in good faith, without malice, and under the apparent authority of an enactment that is unconstitutional, invalid or inapplicable, he is not liable for any injury caused thereby except to the extent that he would have been liable had the enactment been constitutional, valid and applicable. Defendant case - Martel Enterprises v. Chicago, 223 Ill. App. 3d 1028 (1st Dist. 1991): A fireworks owner brought an action against the City of Chicago to recover for false imprisonment and conversion. Chicago police officers executed a search warrant at Martel Enterprises allowing for the seizure of Class C explosives. The officers seized fireworks, such as roman candles, skyrockets, and firecrackers. The bomb squad of the police department destroyed the fireworks seized from Martel Enterprises. The City argued the officers relied on a State law defining illegal fireworks and a City ordinance allowing destruction of seized contraband that was dangerous to store. The court held the City was immune from liability under section of the Tort Immunity Act if the officers relied on the enactments and acted in good faith without malice. As a result, the court reversed the 9

11 directed verdict against the city on the company s conversion claim and remanded for a new trial. The court affirmed the jury s verdict against the city on the owner s false imprisonment claim. D. Injury Caused by the Act or Omission of Another Person 745 ILCS 10/2-204: Except as otherwise provided by statute, a public employee, as such and acting within the scope of his employment, is not liable for an injury caused by the act or omission of another person. Plaintiff case - People ex rel. Birkett v. City of Chicago, 325 Ill. App. 3d 196 (2d Dist. 2001): A church and the state that operated private schools brought a nuisance action against the City of Chicago alleging that aircraft arriving at and departing from the airport generated noise that interfered with the operation of schools. The court held the City was immune under section of the Tort Immunity Act because the City was not responsible for the noise the airport generated. Plaintiffs raised an alternate argument in their complaint and sought abatement of the nuisance in the form of soundproofing the school buildings, which is an equitable remedy. The court held the Tort Immunity Act applies only to tort actions seeking damages against municipalities and not to actions seeking injunctive relief. E. Failure to Adopt an Enactment or to Enforce the Law 745 ILCS 10/2-205: A public employee is not liable for an injury caused by his adoption of, or failure to adopt, an enactment, or by his failure to enforce any law. Plaintiff case - Dirksen v. City of Springfield, 842 F. Supp (C.D. Ill. 1994): A police department employee brought an action against the police chief, the Mayor of Springfield, and other municipal officials, alleging sexual harassment and retaliation. During the time plaintiff was employed by the Springfield Police Department, she alleged that an officer made numerous nonconsensual sexual advances toward her, including attempted sexual assault. Her complaint included claims under section 1983 and state law claims for intentional infliction of emotional distress, negligent infliction of emotional distress, negligent retention, negligent hiring, and battery. For the state law claims, Defendants pointed to section of the Tort Immunity Act, which states a public employee is not liable for an injury caused by his or her adoption of or failure to adopt an enactment. Defendants argued the Mayor of Springfield was acting in his legislative capacity when Springfield hired and retained the officer who alleged harassed plaintiff and should be entitled to immunity. The court reasoned there was no evidence that the decision to hire or retain the officer was a legislative enactment. Therefore, the court denied defendants motion to dismiss under section of the Tort Immunity Act. Defendant case - Fryman v. JMK/Skewer, Inc., 137 Ill. App. 3d 611 (3d Dist. 1985): After restaurant patrons came down with food poisoning, they sued the county, alleging that the 10

12 county health department was aware the restaurant was serving contaminated food, but the county took no action to either close the restaurant or warn patrons that they might be exposed to contamination. The court held the health department was engaged in an inherently governmental task of enforcing county health ordinances, and a failure to enforce the law is not actionable. Therefore, the county was immune from liability under section of the Tort Immunity Act. F. Injury Caused by the Issuance or Denial of a License 745 ILCS 10/2-206: A public employee is not liable for an injury caused by his issuance, denial, suspension or revocation of or by his failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order or similar authorization where he is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked. Plaintiff case - Munizza v. City of Chicago, 222 Ill. App. 3d 50 (1st Dist. 1991): Individuals shot by a taxi cab driver brought an action against the commissioner of the Public Vehicle Operations Division and the superintendent of the police department for issuance of a chauffeurs license to a driver in spite of alleged material omissions on the application and the driver's lack of qualifications. The court held the Tort Immunity Act did not apply. In this case, defendants were required to examine the application for the taxi cab driver and conduct a background investigation. An ordinance provided that if the commissioner found the applicant made any material omissions or misstatements of fact or the applicant lacked any of the specified qualifications, he or she should deny the license. The court held defendants were not immune under the Act because their own ordinances negated the immunity. Plaintiff case - Clarage v. Kuzma, 342 Ill. App. 3d 573 (3d Dist. 2003): A landowner wanted to develop a vacation resort on land next to Starved Rock State Park. He contacted the Deer Creek Township about his plans. The township had no zoning authority over the property, but it controlled the maintenance of a road that would be vital to accessing the resort property. The landowner approached the township about the possibility of renovating and expanding the road. The landowner sued a member of the township board and the township s attorneys for defamation because they published a defamatory letter about the landowner. The defendants argued they were immune under section of the Tort Immunity Act because the landowner was seeking the township s approval for the resort. The court reasoned the township was not granting or denying the approval for a license when it published the defamatory letter. Therefore, the court held section did not apply and defendants were not protected by the Tort Immunity Act. 11

13 G. Zoning and Planning Decisions 745 ILCS 10/2-104: A local public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order or similar authorization where the entity or its employee is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked. Defendant case - O Malley v. Vill. of Palos Park, 346 Ill. App. 3d 567 (1st Dist. 2004): A property owner entered into an annexation agreement with the Village to seek approval of a development plan regarding the subject property. The Village initially granted conditional approval, but subsequently rejected the plan on the basis of lack of public notice and a hearing. The property owner filed a claim against the Village for violation of the owner s alleged vested right to approval of her development plan. The court held the village was immune under section of the Tort Immunity Act. H. Negligent Inspection of Property 745 ILCS 10/2-207: A public employee is not liable for an injury caused by his failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than that of the local public entity employing him, for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety. Defendant case Hess v. Flores, 408 Ill. App. 3d 631 (1st Dist. 2011): Plaintiff s claim arose from an alleged failure to inspect a stairwell in a building for code enforcement purposes. Plaintiff attempted to circumvent the complete, blanket immunity of section by alleging that a City of Chicago building inspector acted in a willful and wanton manner by not conducting a complete inspection of a building, which was required pursuant to the applicable City of Chicago building ordinance. Plaintiffs claimed that the building inspector was acting in the execution and enforcement of the building ordinance, and thus, the willful and wanton exception contained in section was applicable. The First District appellate court disagreed and ruled that the immunity provided by section was a blanket immunity, not circumvented or vitiated by allegations of willful and wanton conduct. Defendant case - Ware v. City of Chicago, 375 Ill. App. 3d 574 (1st Dist. 2007): The facts of this case involve a widely publicized porch collapse incident in Chicago in 2003 that resulted in thirteen deaths and many injuries. The back porch of a third-floor apartment collapsed onto the second-floor apartment s porch, which subsequently collapsed onto the first-floor porch. Tenants of the second- and third-floor apartments were hosting a party and guests were located on the porches. Forty negligence complaints were filed against the building owners, building managers, and the City of Chicago. The court held the City owed no common law duty to the victims of the porch collapse to enforce the building code. The 12

14 court also held the Tort Immunity Act provided unqualified immunity regardless of the building inspectors allegedly willful and wanton conduct because the exception from immunity for willful and wanton conduct did not apply to building inspections. The court held plaintiffs claims were barred by section of the Tort Immunity Act. I. Negligent Misrepresentations and the Provision of Information 745 ILCS 10/2-210: A public employee acting in the scope of his employment is not liable for an injury caused by his negligent misrepresentation or the provision of information either orally, in writing, by computer or any other electronic transmission, or in a book or other form of liability material. Plaintiff case - Doe-3 v. McLean Cnty. Unit Dist. No. 5 Bd. of Dirs., 2012 IL : In this case with rather terrible facts, the defendant School District in McLean County was alleged by plaintiffs to have recklessly or in a willful and wanton fashion failed to disclose to another School District the fact that a former teacher had been dismissed for having inappropriate contact with a student. The teacher at issue was a serial child molester who had been terminated by McLean County, and when he interviewed in Champaign, the prior employer failed to put on an employment screening form that he was discharged from their employment for inappropriate sexual contact with a student. The circuit court granted the School District absolute immunity pursuant to section The Supreme Court reversed and held the immunity of the statute would only apply to negligent conduct and not willful and wanton or reckless conduct. Furthermore, the Supreme Court, likely given the nature of the facts, went out of its way to emphasize the School District owed a duty to provide the subsequent, hiring employer in Champaign complete and accurate information regarding the reason for the dismissal of the teacher. The Supreme Court appears here to have reached the desired result because young children were involved. VI. INJURY OCCURRING IN THE USE OF PUBLIC PROPERTY Article III of the Tort Immunity Act protects governmental entities from liability for injuries that occur on public property. A. Duty to Exercise Ordinary Care A local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for people whom the entity intended and permitted to use the property. 745 ILCS 10/3-102(a). 745 ILCS 10/3-102: Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably 13

15 foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition. Plaintiff case - Bowman v. Chi. Park Dist., 2014 IL App (1st) : A thirteen-year-old girl fractured her ankle while going down a playground slide when her foot became caught in a hole in the plastic at the bottom of the slide. The minor s mother brought suit and alleged willful and wanton conduct for failure to repair the hole in the slide. The Park District had been informed of the hole more than a year earlier. The court held the trial court erred in granting summary judgment for the Park District on the grounds that the minor violated a Park District ordinance by using a slide designed for children under twelve. The Park District failed to inform park guests that the park and slide were intended for children under twelve. No case precedent charges children with the responsibility of knowing municipal ordinances without a sign or other notice. As a result, the court held the minor was a permitted and intended user of the playground under the section of the Tort Immunity Act, despite the ordinance that prohibited children over twelve from using the playground equipment. Plaintiff case - Pattullo-Banks v. City of Park Ridge, 2014 IL App (1st) : In this case, plaintiff alleged she had been forced to cross the street where there was no marked crosswalk because the City plow blocked the appropriate crosswalk location at a busy intersection with plowed snow. The municipal defendant filed a motion for summary judgment asserting that because plaintiff was not an intended or permitted user of the street location where she was attempting to cross when she was hit by a car, she was not owed any duty of ordinary care under section 3-102(a). The appellate court reversed the summary judgment for the City and emphasized that plaintiff had not alleged that the City of Park Ridge had breached its duty to maintain its street. Rather, plaintiff alleged that Park Ridge failed to properly maintain the crosswalk on and adjacent to the sidewalk. The appellate court ruled it was irrelevant whether plaintiff was an intended and permitted user of the street, but focused on whether or not the City breached its duty to maintain the sidewalk and crosswalk location where the snow had been deposited. The appellate court emphasized there were clear issues of fact under section 3-102(a) as to whether or not the municipality had failed to properly and sufficiently maintain the crosswalk location where plaintiff would have crossed had the snow not obstructed her path. Plaintiff case - DeMambro v. City of Springfield, 2013 IL App (4th) : In this case, the trial court entered summary judgment against plaintiff, finding that she was not an intended or permitted user of the street around the location where she parked her vehicle and then stepped in a pot hole and sustained an injury. On appeal, the Fourth District disagreed and reversed the summary judgment. The opinion emphasizes that because plaintiff was using the street for ingress and egress from her vehicle, which was parked at a proper parking space on the street, she was an intended and permitted user of the street where she had parked her car. Therefore, the City of Springfield owed plaintiff a duty of 14

16 ordinary care to maintain the street in the area around the parking spaces to allow for drivers entering and exiting their vehicles to do so safely. This is a pro-plaintiff opinion, which distinguished several other cases holding generally pedestrians are not the intended or permitted users of a street when a claim is brought against a city or municipality. Plaintiff case - Belton v. Forest Pres. Dist., 407 Ill. App. 3d 409 (1st Dist. 2010): In this case, a tree limb of notable size fell on plaintiff s vehicle while driving on a public road adjacent to the public park where the tree stood. Plaintiff alleged that the Park District was negligent in inspecting and maintaining its trees adjacent to the roadway. The appellate court went through a lengthy analysis of the duty owed in a negligence claim under section 3-102(a) and found the recreational property immunity of section to be inapplicable. Plaintiff was not in the park at the time of the tree limb falling on her vehicle causing the injury alleged. This is a favorable pro-plaintiff case with a lengthy discussion of who is an intended and permitted user of the public roadway adjacent to the park. Plaintiff as an operator of her vehicle on the roadway fell within the protection of section 3-102(a) as an intended and permitted user of the road. Defendant case - Bruns v. City of Centralia, 2014 IL : Plaintiff tripped on a crack in the City s sidewalk while on her way to a scheduled eye appointment. The parties agreed the sidewalk defect was open and obvious, but disagreed as to the applicability of the distraction exception. The distraction exception applies where the possessor of land has reason to expect the invitee to be distracted. In this case, the only distraction identified by plaintiff was that her attention was fixed on the door and steps of the clinic. The court held that looking elsewhere does not constitute a distraction. The court held the City had no duty to protect the pedestrian from the open and obvious sidewalk defect. Therefore, the City was immune from liability under section of the Act. Defendant case - Perfetti v. Marion Cnty., 2013 IL App (5th) : In this case, plaintiff proceeded to trial on proof that he had lost control of his car as a result of defects on the road surface he was driving on. The circuit court granted the County a directed verdict given the determination that plaintiff had not provided any evidence of actual notice on the part of the public entity of the alleged defective condition on the roadway which caused the plaintiff s accident. This opinion contains a good discussion of what is necessary to prove a claim for ordinary negligence with regard to a roadway or other property falling under section 3-102(a). The appellate court emphasized that to prove such constructive notice to a public entity of a condition, such condition must be so conspicuous or plainly visible that the County could have or should have known of it after a passage of time. A County highway employee inspected the roadway two days prior to the accident and had not seen or located the defect on the road surface alleged by plaintiff at trial. The appellate court found that plaintiff did not introduce evidence of the County s actual or constructive knowledge of the alleged defects. As a result, the appellate court affirmed the circuit court s decision because the County was immune from liability under section

17 Defendant case - Berz v. City of Evanston, 2013 IL App (1st) : A bicyclist filed a complaint alleging negligence against the City stemming from an injury that occurred when the bicyclist struck a pothole while riding in an alleyway. The City filed a motion to dismiss under 2-619(a)(9) alleging that section 3-102(a) of the Tort Immunity Act provided immunity for the City because the bicyclist was not the intended user of the alley. The court granted the City s motion to dismiss. The appellate court reasoned that the proper test for determining if the bicyclist was the intended user was to look at the nature of the property itself. The court stated that it was necessary to look at pavement markings, signs, and other physical manifestations of the intended use of the property. The court found that there were no pavement markings or signs indicating bicyclists were intended to ride in the alley. The appellate court held the City was immune under section of the Tort Immunity Act and affirmed the trial court s decision. Defendant case - Pence v. Northeast Ill. Reg l Commuter R.R. Corp., 398 Ill. App. 3d 13 (1st Dist. 2010): This case provides a good analysis of what is required under section 3-102(a) for a plaintiff to establish that they are both an intended and permitted user of public property for a duty of ordinary care to arise. Plaintiff was a pedestrian who tripped while walking near a train crossing on a bolt that was protruding from the railway line adjacent to the train station on the nearby street. The defendant s motion for summary judgment was granted as the facts demonstrated that at the time plaintiff fell, he had not yet reached the proper place to be transported by the common carrier. Thus, he was not on a pedestrian sidewalk or at the train station yet. Therefore, the appellate court found plaintiff did not qualify as an intended and permitted user of the street adjacent to the train station. Had plaintiff actually made it to the train station and then fallen on the protruding bolt, defendant would have been subject to an ordinary negligence duty, or possibly an even higher duty as a common carrier under Illinois law. B. Failure to Provide Street Signs, Road Markings or Other Traffic Control Devices 745 ILCS 10/3-104: Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to initially provide regulatory traffic control devices, stop signs, yield right-of-way signs, speed restriction signs, distinctive roadway markings or any other traffic regulating or warning sign, device or marking, signs, overhead lights, traffic separating or restraining devices or barriers. Defendant case - Sexton v. City of Chicago, 976 N.E.2d 526 (1st Dist. 2012): In this case, the plaintiff proceeded to trial on allegations that the City of Chicago had a duty to put a more instructive sign near a railroad crossing, where the plaintiff s decedent had been struck by a train. The jury trial proceeded under ordinary care instructions based upon the duty to maintain the city property under section 3-102(a). Plaintiff obtained a $5,000,000 verdict in the case, and the City appealed. The issue on appeal was whether the absolute immunity under section of the Act trumped a general duty of ordinary care where the proof established that plaintiff was not charging negligence in the maintenance of signage, but 16

18 rather negligence in the failure to initially provide better signage than was present near the accident location at the railroad crossing. The First District reversed the jury verdict, due to section 3-104, finding that the immunity was absolute regarding the failure to provide the sign plaintiff alleged was necessary. The opinion emphasizes that plaintiff s allegations that better signage was necessary was insufficient to get around the absolute immunity of section which immunizes against claims for a failure to provide signage or traffic control systems. C. Usage of Streets Public entities and public employees are not liable for an injury caused by the effect of weather conditions on streets, highways, alleys, sidewalks and other public ways. 745 ILCS 10/3-105(a). Additionally, public entities and employees are not liable for any injury caused by the failure to upgrade a street, highway, alley, sidewalk, or other public way. Id. at (b). Under 3-105(c), local public entities have a duty to exercise ordinary care in the maintenance of its property. 745 ILCS 10/3-105(a): Neither a local public entity nor a public employee is liable for an injury caused by the effect of weather conditions as such on the use of streets, highways, alleys, sidewalks or other public ways, or places, or the ways adjoining any of the foregoing, or the signals, signs, markings, traffic or pedestrian control devices, equipment or structures on or near any of the foregoing or the ways adjoining any of the foregoing. For the purpose of this section, the effect of weather conditions as such includes but is not limited to the effect of wind, rain, flood, hail, ice or snow but does not include physical damage to or deterioration of streets, highways, alleys, sidewalks, or other public ways or place or the ways adjoining any of the foregoing, or the signals, signs, markings, traffic or pedestrian control devices, equipment or structures on or near any of the foregoing or the ways adjoining any of the foregoing resulting from weather conditions. 745 ILCS 10/3-105(b): Without implied limitation, neither a local public entity nor a public employee is liable for any injury caused by the failure of a local public entity or a public employee to upgrade any existing street, highway, alley, sidewalk or other public way or place, or the ways adjoining any of the foregoing, or the signals, signs, markings, traffic or pedestrian control devices, equipment or structures on or near such street, highway, alley, sidewalk or other public way or place, or the ways adjoining any of the foregoing from the standards, if any, which existed at the time of the original dedication to, or acquisition of, the right of way of such street, highway, alley, sidewalk or other public way or place, or the ways adjoining any of the foregoing, by the first local public entity to acquire the property or right of way, to standards which are or 17

19 may be applicable or are imposed by any government or other person or organization between the time of such dedication and the time of such injury. 745 ILCS 10/3-105(c): Nothing in this Section shall relieve the local public entity of the duty to exercise ordinary care in the maintenance of its property as set forth in Section Plaintiff case - Smart v. City of Chicago, 2013 IL App (1st) : Plaintiff sustained an injury riding a bicycle on a road being resurfaced. Plaintiff was approaching an intersection on his bike when he noticed that the street s surface changed from a smooth to a rugged texture as a result of a resurfacing project. The front tire of his bike lodged into a grove in the roadway, and his bike came to an abrupt stop. He flew over the handle bars and landed on his shoulder. A Cook County jury rendered a verdict of nearly two million dollars and was instructed under IPI The First District affirmed the jury s verdict and found the duty imposed upon the City of Chicago with regard to the maintenance of its street surface during construction was governed by general negligence principles. Section and other provisions of the Tort Immunity Act were not applicable. The First District held that the City of Chicago was negligent when it resurfaced its road and the City s negligence caused plaintiff s injury. Defendant case - Kiel v. City of Girard, 274 Ill. App. 3d 821 (4th Dist. 1995): A pedestrian suffered injuries when she fell on snow that had been piled on the curb by the City. The Illinois Supreme Court has held that section 3-105(a) means that public landowners are free from a duty to remove the natural accumulation of snow and ice on their own property. Under the natural accumulation rule, however, where a landowner negligently performs ice and snow removal, adding to or creating a new hazard, the landowner may be liable for a resulting injury. A public entity may be liable for unnatural accumulations of ice and snow, provided that the public entity violated its duty to exercise ordinary care. The appellate court held there was no duty imposed on the City to promptly remove all snow on the curbs that had been plowed as part of the street and sidewalkcleaning efforts. In addition, the court held the City did not breach its duty of ordinary care and was not liable for the pedestrian s injuries. Factors to consider when determining whether a legal duty exists include the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden upon the defendant. The court reasoned that requiring prompt cleanup of all snow piled on the curbs would place an enormous burden on cities, and such a duty would have the consequence of discouraging snow removal. D. Recreational Property Immunity 745 ILCS 10/3-106: Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for 18

20 recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury. Plaintiff case - Abrams v. Oak Lawn-Hometown Middle Sch., 2014 IL App (1st) : This case addressed the issue under section of whether a combined school cafeteria and auditorium was intended or permitted to be used for recreational purposes. Plaintiff fell and sustained an injury on an uneven floor surface. The First District analyzed the factors for determining whether the property was recreational and, in a fairly pro-plaintiff opinion, found that the primary educational use of the combined cafeteria and auditorium precluded a determination that the floor at issue was recreational. Therefore the duty of ordinary care of section was still applicable, and the immunity of section was inapplicable. Plaintiff case - Peters v. Herrin Cmty. Sch. Dist. No. 4, 401 Ill. App. 3d 356 (5th Dist. 2010): Plaintiff was a participant student injured in the football camp sponsored by the School District. The District asserted in a motion to dismiss that the summer camp occurred on school property which was essentially a recreational property. Defendant s motion also suggested that a course of action of willful and wanton conduct by the School District was not sufficiently pled under section of the Act. The Fifth District reversed the dismissal by the circuit court, indicating that it would be premature to determine on the pleadings whether the summer camp for football conducted on school property occurred on recreational property because there were insufficient facts to make that determination without discovery. Defendant case - Bielema v. River Bend Cmty. Sch. Dist. No. 2, 2013 IL App (3d) : The court held a school district did not commit willful and wanton conduct that caused a student to slip on a puddle of liquid in a high school gymnasium during a volleyball scrimmage. The school district took some action to remedy the danger posed by the spill and reduce the risk of harm to others when the school s principal asked her husband to stand guard over it while she went to retrieve materials to clean the spill. While her husband could have done more to warn the student of the spill, the court held his mere ineffectiveness did not show a course of action demonstrating the school district was utterly indifferent to or consciously disregarded the safety of others. Therefore, the school district was immune from liability. Defendant case - Moore v. Chi. Park Dist., 2012 IL : The decedent fell in a parking lot while she was leaving a building owned and operated by the Chicago Park District. Three inches of snow had fallen two days earlier and the Chicago Park District had plowed the parking lot and shoveled and salted the sidewalk leading to the building s main entrance. Decedent slipped and fell as soon as she stepped onto the plowed asphalt. She fractured her femur and underwent surgery to repair it. Complications occurred during surgery, she suffered brain damage, and died. This case addressed the interplay between the natural 19