Martin A. Dolan – Principal Litigator
by Martin A. Dolan & Robert Ennis
I. Introduction
Over 120 years ago, the Illinois Supreme Court decided the case of Kinnare v. City of Chicago, the first case in which the doctrine of sovereign immunity was explored by an Illinois court.1 There, the court ruled that units of local government were state agents, and as such, deserving of complete immunity from liability. This ruling was to stand until 1959, when the Illinois Supreme Court’s ruling in Moliter abolished the doctrine of common law sovereign immunity.2 Following Moliter, Article 13, section 4, of the 1970 Constitution, abolished all forms of sovereign immunity, bar those lawfully provided for by the Illinois General Assembly.3 The legislature has now developed three Acts that provide a comprehensive latticework of immunities for both state and local government in Illinois. Lawsuits arising against the state itself fall under the purview of the Court of Claims Act and State Lawsuits Immunity Act, while those against “local public entities” fall (and too often fail) under the Illinois “Local Governmental and Governmental Employees Tort Immunity Act,” (“Tort Immunity Act”), enacted in 1965.
This article will explore the varied immunities available to state and local government in Illinois, arguing that such an antiquated policy is ill-suited to the modern legal environment. It will detail methods by which a careful litigant may navigate the immunity statutes and account for a number of qualifications and exceptions to specific immunities conferred on local government entities and employees.
II. Against Sovereign Immunity Generally
Many arguments have been leveled against the continuing legitimacy of the anachronistic concept of sovereign immunity, existing today in the form of the Illinois State and Local Government Immunity statutes. The traditional policy rationale for the doctrine was the protection of public monies from claims directed against government entities and employees. However, in recent times, the broad availability of insurance to insulate government agencies from such loss, similar to the private sector, detracts from the force of such reasoning. The payment of premiums indeed is the only cost to the public purse–a cost already borne by many local government entities. Section 9-103 (c) of the Tort Immunity Act indeed authorizes a public entity to purchase liability insurance without losing these immunities. It has been observed that it would be far better to spread the costs of government wrongdoing across the entire populace than endorse a system that forces the victim to bear the loss in full.4
Sovereign immunity originated from monarchal England, based on the idea that “The King can do no wrong,”5and as such has no home in a system of written constitutions, delimiting the power of government, such as that in the United States and in Illinois.6 Recently, changes to the law have meant that some governmental liability is possible, though this is heavily qualified. The effect of such protection is to hold the government outside the law and ensure those who suffer harm at the hand of the state will be left without a remedy.7 Such a position sets itself against the notion in Marbury v. Madison, that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”8 Indeed the very hallmark of sovereign immunity in Illinois appears to be the frustration of compensation and deterrence, in the face of government wrongdoing, ignoring any concept of governmental accountability and limiting the possibility of liability. It has been noted by the court that sovereign immunity is “not about fairness or efficiency.”9 This is too often true.
III. Categories of Immunity in Illinois
A. The State of Illinois
The State Lawsuit Immunity Act (“Lawsuit Immunity Act”)10 mandates that the state shall not be made a defendant or party in any court except as provided in the Court of Claims Act. This makes clear that neither the state, nor any department thereof, can be sued in any court without its express consent.11 The courts have explained that for this sovereign immunity to exist, certain requirements must be met: the defendant must be an arm of thes state, the plaintiff’s action could subject the state to liability, and no exceptions to the doctrine are present.12
As is made clear in Rockford Memorial Hospital v. Department of Human Rights,13 an agency of the state may not be a defendant in any action14 as it is considered an “arm” of the state itself. This rule is not absolute, however, as merely being named a party does not qualify for immunity. Rather, the protection depends on the “issues involved and the relief sought.”15 Crucially, in determining whether sovereign immunity applies to a particular case, substance takes precedence over form.16 In addressing motions to dismiss filed by government defendants, it is therefore important to focus on the facts of the case, and the specific actions undertaken by state employees, rather than labels or conclusory statements denying the application of immunity.
The state has itself provided an arena where claims against it can be heard, however, through the enactment of the Court of Claims Act,17 which provides that most suits naming the State of Illinois as a defendant shall be under the exclusive jurisdiction of the Court of Claims. This includes “all claims against the state for damages in cases sounding in tort, if like cause of action would lie against a private person or corporation.”18 The court consists of seven judges in all, who, interestingly, receive their appointment from the governor. This special Court of Claims has been adopted by a number of other states, including Ohio, Kentucky, North Carolina, and Tennessee, each providing for a limited “waiver” of sovereign immunity in this venue under certain legislative conditions.
The state, though immune from all lawsuits not covered by the Court of Claims Act, will invariably be caught by the very wide mandate of the Act. However, not only is there a strict notice requirement of one year under the Act, but the maximum recovery in tort under the Act is only $100,000.19 In addition, the state is entitled to a set-off against that limit in the amount paid by any other tortfeasor pays, or is subsequently required to pay to, the plaintiff. This amount will clearly bear little relation to the loss suffered in many, more serious cases, where the “true” value of the loss is likely to be in the many multiples of this amount.
Such limited recovery and restrictive notice requirements are often cause for litigants to attempt to escape application of the Act, in favor of an action in circuit court. This may be achieved in certain situations, as outlined below.
Navigating State Immunity
The court in Healy v. Vaupel, gave some guidance on situations where an action may not be “against the state” and therefore not subject to immunity, but triable in circuit court.20 These include:
a) Where there are allegations that an agent or employee of the state acted in violation of statutory or constitutional law or beyond the scope of his authority; or
b) The duty alleged to have been breached was owed to the public generally independent of the fact of state employment; or
c) Where the acts complained of do not involve matters ordinarily within the employee’s normal and official state functions.
These criteria were approved more recently by the court in Jinkins v. Lee,21 and indeed, any one of the above, if found, may preclude the application of sovereign immunity.22 Additionally, if these criteria are not satisfied, “a court must consider the relief sought-that is, whether ‘a judgment for the plaintiff could operate to control the actions of the [s]tate or subject it to liability.’ “23
As to (b), the “independent source” exception, and the most commonly litigated, Currie v. Lao,24 laid down the “source of duty” test where that court stated “A state employee is not immunized by sovereign immunity for his own acts of negligence merely because he was acting within the scope of his employment. The proper inquiry is to analyze the source of the duty the employee is charged with breaching in committing the allegedly negligent act.” In that case, the test was applied to a state trooper who had injured plaintiff in a motor vehicle accident, which was the basis of a subsequent negligence action brought by plaintiff. In finding that the trooper caused the accident while performing a “routine operation of a motor vehicle on a public street,” the court made clear “where the employee is charged with breaching a duty imposed on him independently of his state employment, sovereign immunity will not attach and a negligence claim may be maintained against him in circuit court.”
The “independent source” exception can be found in a number of recent cases.
In 2009, it was found that athletic trainers in Illinois may be subject to personal liability for claims of negligence, despite their employment by state-funded institutions. In Sellers v. Rudert,25 it was held that athletic trainers at Eastern Illinois University owed a duty of care, by virtue of the Illinois Athletic Trainers Practice Act, in circumstances where a former member of the University’s football team brought a negligence action. The Illinois Appellate Court for the Fourth District held that, as the duty was independent and separate from their state employment, the trainers were not permitted to raise the defense of sovereign immunity.
Similarly, in Jinkins v. Lee,26 the supreme court held that sovereign immunity did not apply in the case of state-employed mental health professionals who were guilty of malpractice during an “intake decision” at a state facility. Here, the source of the duty owed by the defendants was not their employment by the state, but rather derived from the duty a psychiatrist and psychologist owe to a patient. As such, no immunity applied.27 An independent duty can be said to exist when the duty is a professional duty owed by every member of that profession.28 Another example of an independent source duty was found in Johnson v. Halloran, in the case of an attorney.29 Moreover, such a duty is owed when it arises from an individual’s general status, and where a statute imposes specific requirements on all people, regardless of their employment, i.e., a driver’s duty to drive safely.30
The intention of the state employee is also important in the courts consideration, as has been seen in Jackson v. Alverez, where the court noted “the question is whether the employee intended to perform some function within the scope of his or her authority when committing the legal wrong.”31 An employee’s actions are considered within the scope of employment where an intent to further the state’s business can be inferred from the facts.32 It is therefore important to show diversity between the individual’s state employment, and the duty allegedly owed to plaintiff. A clear intention to perform an act obviously outside that employee’s authority, evidenced by factual pleading, can be a very clear indicator of the independent source duty.
Therefore, while an avenue, albeit restrictive, lies to sue the state in its Court of Claims, attempts to sue state actors in circuit court will fail, unless the very limited exceptions outlined above apply.33
B. Local Government
The Tort Immunity Act operates for the protection of local government entities and employees from liability arising from the operation of government.34 The act creates a range of immunities and defenses for all public actors, insulating them from liability, defining “local public entity” in very broad terms, encompassing many diverse bodies with a “public” character.35
Municipal immunity for tort liability under the Act is very comprehensive, and includes no liability for: adopting a law, failing to adopt an enactment, or failing to enforce any law,36 issuing, denying, suspending or revoking permits and licenses or similar authorizations,37 failing to inspect or negligently inspecting property other than municipally owned property,38 negligent enforcement of health/safety codes,39 or for injury caused by oral promise or misrepresentation of its employee whether negligent or intentional.40 Also, a local public entity is not liable for libel or slander committed by its employees,41 or if its employee is not liable for a particular act or omission,42 as the liability of a public entity is co-extensive with that of its employee. The Act does not create any new duties, which must be first established in any successful negligence suit, but rather, provides broad immunities to limit liability.43
The case of Antiporek v. Hillside has established that even governmental self-insurance pools could benefit from protection under the Act.44 This has since resulted in an aggressive use of the immunities under the Act by these groups. In fact, in an effort to comprehensively rule out liability accruing from their actions, government entities are often advised to arrange themselves to actively avail of these immunities. For instance, supervisors may be given instructions to avoid participation in the activity they are responsible for supervising, as participation that is too active can negate the Tort Immunity Act protections, a rule that is hardly a recipe for good government. In addition, job descriptions may be specifically designed not to sound too ministerial, as the presence of discretion will aid tort defense, as will be shown later.45
These immunities often provide for the protection of wrongdoing in tragic circumstances, in which their justification is widely questioned. Such a case arose in Ware v. City of Chicago, where the court ruled that city building inspectors were immunized for failure to properly inspect a porch that subsequently collapsed, causing the deaths of thirteen people. Their failure to report the violation of several building codes by the construction of the porch was covered by Sections 2-103 and 2-20546 of the Act, and the victims’ families were left without redress.
1. Discretionary versus Ministerial Acts
One of the most important points to consider in bringing a case against a local government entity or employee is the classification of the negligent or wrongful act as either purely “ministerial” in character, or as “discretionary.” This is because governmental entities and officials are ceded absolute immunity for discretionary acts or omissions.47 Section 2-201 reflects the common law doctrine, which affords immunity to discretionary acts or omissions of government, but not those of a ministerial character. To benefit from immunization, the public entity or employee must show the action(s) taken by that employee was both a determination of policy, and discretionary.48 Even if the discretion is abused, the immunity will nonetheless apply.49 It is worth noting, however, that while discretion may be involved in the action of an official, that official will not be immunized for decisions not unique to his or her office.50
A ministerial act, by contrast, will invite liability, where its performance is based purely on the furtherance of a plan or policy, with no exercise of discretion as to the act itself, and with nothing left for the employees own judgment.51 Such acts are performed on the basis of a given set of facts and a clearly established method.52 This distinction is based on the premise that public officials need to be allowed to exercise their judgment without the burden of knowing that a mistake, even in good faith, may render them liable to be sued.53 However, given the functions of the majority of public officials necessarily includes some exercise of discretion, the utility and range of this immunity is very far indeed, rendering any conduct involving a degree of deliberation or judgment beyond the reach of the law. Nonetheless, one recent application occurred in Trtanj v. City of Granite City, where the defendant city was granted immunity in circumstances where a sewer backed up into the basement of plaintiff’s home. The acts of the defendant in controlling work on the sewer system and ensuring its commission in a safe and skillful manner, were deemed ministerial, in light of the applicable standards.54
The ubiquitous nature of this defense means that a litigant will need to carefully distinguish government action as ministerial in nature, on the particular facts of the case, in order to maintain an action in tort. Often a chain of acts, both discretionary and ministerial, will precede the action in question; however the specific action causing the tort at issue is the important one.
2. Willful and Wanton Conduct
Liability of government actors can often be established under the Act by showing that government conduct was “willful and wanton.” Such conduct occurs where an action “intended to cause harm or, if not intentional, shows an utter indifference or conscious disregard for the safety of others or their property.”55 If sufficient facts are pled to establish this, a range of immunities will not apply, such as the execution or enforcement of the law,56 and liability will accrue, for instance, where the government takes no action to correct a dangerous condition, despite knowing of the condition and of previous injuries to people because of it.57 Another example is failure by the government to exercise ordinary care to prevent a known, impending danger.58
However, the courts have applied this exception strictly in a number of cases,59 notably in the 2006 case ofDeSmet v. County of Rock Island.60 There, the Illinois Supreme Court held that governmental employees were immune from liability after being informed of a car going off the road into a ditch, and having failed to respond to the incident, which resulted in a woman’s death. The evidence showed that the victim would have survived had the officers made an effort to find her. The court, in finding the exception in Section 2-202 did not apply as the officers were not “executing or enforcing the law,” held that the municipal employee must actually respond to the scene, and exercise some degree of control over it, for liability to be present.61
Other conditions will often need be established in addition to willful and wanton conduct, in order to ground liability, such as in the case of “intended and permitted users” of public property.62 It is advisable to be well aware of the carve outs under the Act, negating immunity in the case of willful and wanton conduct, prior to filing a lawsuit against government entities or employees.
3. Physical or Mental Examinations
Many public and local hospitals and medical centers have been established under statutory grants of authority and are comprehensively protected from medical malpractice claims by Article VII of the Act. Section 6-105 provides immunity for “injury caused by the failure to make a physical or mental examination, or to make an adequate physical or mental examination of any person for the purpose of determining whether such person has a disease or physical or mental condition that would constitute a hazard to the health or safety of himself or others.”63 Therefore, a failure to diagnose or treat a patient at a public health facility is fully immunized by the Act. This was recently re-affirmed in Hemminger v. Nehring,64 and such immunity applies even in the case of willful and wanton conduct.65
However, public medical personnel and entities are not immune from negligently or wrongfully prescribing treatment66 or for negligence, wrongful act, or omission in administering the prescribed treatment.67 In Mills v. County of Cook,68 the court commented on this distinction in holding that a doctor employed by a public entity did not benefit from any immunity, where it was alleged that the doctor, having made a correct “differential diagnosis” of pneumonia, was negligent in the treatment, by failing to provide the necessary life-saving antibiotics and respiratory monitors. However, a diagnosis that results in no treatment is likely to be characterized a misdiagnosis, subject to immunity.69 Allegations in any complaint against public hospitals and their employees must be tailored carefully, so as not to mistakenly ignore this distinction.
4. Liability of Law Enforcement Officials
Section 4-102 of the Act provides that there is no liability for a local public entity’s failure to establish a police department or to provide police protection service. If police services are provided, no liability arises for the municipality if the sole basis for potential liability is a failure to provide adequate police services to prevent, detect or solve a crime, or a failure to identify or apprehend a criminal.70 The definition and application of the term “police protection service” is open to debate, however. For example, in Torres v. City of Chicago,71 where police officers failed to call for an ambulance to treat an injured person until over an hour-and-a half after arriving on the scene. The court refused to apply this immunity in this case of a failure to secure medical aid for an injured person, as it involved no service characteristic of normal police functions.72 The immunity was also held not to apply in Doe, Ortega-Prion v. Chicago Board of Education, as providing an attendant on a bus to supervise special-needs children was not considered a “police protection service.”73
Section 2-202 of the Tort Immunity Act provides a broad immunity from liability to public employees involved in the “execution or enforcement” of the law.74 However, this immunity will not apply in the case of “routine elements” of an employee’s “official” duties.75 Thus, the immunity has been overcome in the case of activities involving the transport of a prisoner between penal institutions,76 accidents while on routine patrol,77 and possibly even in cases of traffic patrol.78 Moreover, the immunity under section 2-202 does not apply in the case of willful and wanton misconduct.
5. Some other areas not covered by the Act:
• The Act will not immunize actions or omissions by “independent contractors”, who are not deemed “employees” under the Act.79
• Entities with insufficient public character not included in the definition of “public entity” under the Act, such as little league associations80 or YWCA81, will not benefit from the immunities conferred under it.
• The Act does not affect liability based on contract, operation of a common carrier, any entity organized under the Metropolitan Transit Authority Act, workers’ compensation, wrongful demolition or Illinois Criminal Conviction Act.82
• Libelous statements by public officials not within the scope of their legislative duties are not covered by the Act.83
•Liability may apply where the institution of judicial or administrative proceedings is malicious and without probable cause.84
IV. Punitive Damages
Under the Tort Immunity Act, punitive damages are not recoverable against local public entities, or against public officials who serve in official executive, legislative, quasi-legislative, or quasi-judicial capacities.85 Nor may a public entity indemnify employees for punitive damages.86 However, if an official or employee acts outside the scope of his or her employment, this rule will not apply. While compensatory damages are aimed at compensating victims, punitive damages are designed to punish wrongdoers, to deter future misconduct of a similar character by the defendant, and by others. It is often argued that such a rationale has no teeth when directed towards a government entity, because the costs are borne by the taxpayer, who has no control over public employees, and therefore, no element of deterrence is present. This argument ignores any internal accountability within local and state government, however, and assumes negligent action is carried out by faceless, nameless governmental cogs. It is not. Illegal and negligent acts by the state can be traced to individuals and offices within specific departments. Supervisors, department chiefs, and elected officials will all suffer under the glare of punitive damages if they commit or condone wrongdoing in government, be it through employment decisions, department funding, or through the ballot box.
In discussing the utility and significance of punitive damages against private employers for retaliatory discharge, the Illinois Supreme Court noted that in the absence of punitive damages, the employee’s remedy is incomplete, and there is little to discourage the practice of retaliatory discharge.87 This is no less true when the employer is a public entity, and a statute that protects entities from such action, merely because they serve a public function, ignores the clear and convincing rationale behind punitive damages.
V. Conclusion
As has been shown, immunity for state and local government actors in Illinois is diffused into a number of statutory protections, in which the prospect of liability is limited by the strict language of the Acts themselves, and by the rigid application of these immunities by the courts. Often, the result of this comprehensive protection is that the victims of government negligence pay the full cost of their loss, with no prospect of punitive damages to deter such wrongdoing in the future. However, as shown, a litigant with a good knowledge of the various statutes and relevant case law can often fit within one of the exceptions or qualifications to the myriad immunities. Sovereign immunity in Illinois, over the past century, has expanded from a single, all-encompassing, rule, to a comprehensive framework of specific immunities and rules. This immunity is not absolute, however, and narrow channels now exist through which one can prove, and punish government wrongdoing, by careful navigation of these immunities, and clever application of the exceptions to the facts of your case.
Click here to download the article as a PDF
several Connecticut colleges offer majors in this field
how to lose weight fast 9 Surprising WWI Fashion Factoids from
christina aguilera weight lossGalleon Group’s Survival Looks Doubtful