The Public Duty Rule Ends in Illinois
By Ann Pieper, Kavanagh, Scully, Sudow, White & Frederick P.C., Peoria
The Illinois Supreme Court recently abolished the “Public Duty Rule” in Marcus Coleman v. East Joliet Fire Protection Dist. et.al, 2016 IL 117952. As a result of this decision, our local area fire and police department clients expressed concern that they could now be held liable if they do not respond to a call quickly enough or if they do not provide services because they erroneously deem a situation to be benign. However, the abolition of the “Public Duty Rule” does not change the reality that the majority of public entities are specifically immune from liability for failure to act by statute. The most well-known of these statutes is the Local Government and Governmental Employees Tort Immunity Act (745 ILCSW 10/1-101 et. seq); however, this case specifically dealt with two other laws that provide immunity to governments and governmental bodies as well: the Emergency Medical Services Systems Act (210 ILCS 50), and the Emergency Telephone System Act (50 ILCS 750/15.1). Even though the elimination of the “public duty rule” is a concern for local governments, the statutory protections already in place mitigate that concern considerably.
The key to the Court’s analysis is the basic understanding that the case at bar was a negligence action in tort. Of course, to establish a prima facia case in a negligence action the following elements must exist:
- There must be a duty to act.
- Someone must have breached the duty to act.
- The breach of duty caused the injury or loss to a person or thing.
- There were damages from the breach.
In order for a negligence case to survive a motion to dismiss, it must meet all four elements – duty, breach, causation and damages. If a case has all four elements, then a defendant might have a defense, such as the statutory defense of immunity, under an act like the Tort Immunity Act, for example.
What was the Public Duty Rule? The public duty rule stated that a local government did not owe a duty to individual members of the public – they only owed a duty to the public as a whole. The public duty rule was not a statute but was developed by courts prior to the passage of laws such as the Tort Immunity Act. The rule was developed because the Court saw that if an individual was allowed to sue a town because the police did not adequately protect a street they knew to be a “hot spot” for break ins and a break in occurred, the tax dollars meant to provide protection to the whole community would be spent paying damages to one person for a mere mistake. The courts primarily applied this rule in the late 1800’s and early 1900’s. Once the application of the concept of local government sovereign immunity was specifically abolished by case law in the Supreme Court’s 1959 decision in Molitor, 18 Ill.2d.11, courts began, once again to apply the “public duty rule.” Also, in response to the decision in Molitor, the legislature began to pass specific acts granting immunity such as the Tort Immunity Act. Courts occasionally applied the immunity granted in the Acts that grant immunity, and sometimes applied the public duty rule to dismiss cases against local governmental bodies stating that a local government does not owe a duty to an individual person, only the populous as a whole.
The Facts of the Case at Bar, of Course, are Key to the Court’s Decision to overturn the Public Duty Rule. A woman (Coretta Coleman) living in an unincorporated area of Will County called 911 experiencing shortness of breath and chest pain. In unincorporated Will County, all 911 calls initially go to Will County Dispatch which handles all police matters. If the issue is a fire or EMT issue, the call is transferred to Orland Fire Protection District Dispatch. Will County dispatch spoke to Coretta and, per protocol, transferred her call to Orland Fire Protection District Dispatch; however, the operator on duty did NOT stay on the line with Orland Fire Protection District Dispatch to make sure that Coretta’s problems were communicated to Orland Fire Protection District Dispatch, as Will County Dispatch is required to do by its own department rules and regulations. By the time Orland Dispatch said “hello” Coretta had lost consciousness and could not answer. Orland Dispatch sent EMT’s anyway, not knowing the nature of the emergency. When crews arrived (a mere 5 minutes after Coretta’s initial call), no one answered the door. The EMT’s did not have the authority to break down the door as they had no idea whether or not the call was real or a mistake. EMT’s left after speaking with neighbors who surmised that Coretta and her husband were not at home. Neighbors then became increasingly worried themselves and called 911 again. When the neighbors called, they spoke to the SAME OPERATOR at Will County Dispatch who initially spoke to Coretta. The Will County Dispatcher, this time, stayed on the line when she transferred the call to Orland Fire Protection District Dispatch, and explained Coretta’s initial distress call. EMT’s were again dispatched and arrived at the home at the same time that Coretta’s husband did and found Coretta dead on the floor. (At this point, it was 44 minutes after Coretta’s initial call).
The defendants in the matter filed a motion for summary judgment asking the Court to dismiss the case because the defendants had no duty under the public duty rule and if the Court disagreed, the defendants were immune from prosecution under the Tort Immunity Act, the Emergency Medical Services Systems Act, and the Emergency Telephone Systems Act.
The Circuit Court applied the public duty rule stating that the defendants had no duty to Coretta and dismissed the case on summary judgment. The Circuit Court never even discussed whether or not the immunities in the Tort Immunity, Emergency Medical Services Systems, or Emergency Telephone Systems Acts applied to the situation. Once the Court found that there was no duty, the case did not have the prima facie elements necessary to move forward and the Court’s analysis stopped. The Circuit Court’s analysis was affirmed by the Appellate Court. The Supreme Court agreed to hear the case and overturned the decision. Their reason for doing so was mainly that the Tort Immunity Act, Emergency Medical Services Systems Act and Emergency Telephone System Act would have no reason to exist if the public duty rule still is applicable because a court can never reach the issue of immunity (a defense) if a suit cannot be maintained in the first place because there is no duty (an essential element of the cause of action). Therefore, the Supreme Court stated that the public duty rule, a court creation, was abrogated by statutes.
Of course, practically, under the facts of this case, the Supreme Court wants the Circuit Court to determine whether or not the employee at Will County Dispatch engaged in willful and wanton misconduct by not following the very clear procedure of the department by staying on the line when transferring to Orland Central Dispatch to make sure that the details of the call was known before she hung up. Factually, the Dispatch officer’s variation from procedure might be “an utter indifference to or conscious disregard for the safety of others” which is the definition of willful and wanton misconduct in the Tort Immunity Act.
In Conclusion, the decision terminating the public duty rule does eliminate a legal argument that protected municipalities and other public entities; however, those public entities are still granted immunity from liability for all but willful and wanton misconduct by numerous acts such as the Local Governmental and Governmental Employees Tort Immunity Act.