Expect to see more civil lawsuits against local governmental entities.

The threat of civil litigation is not limited to the business environment. Local governments are often the targets of civil lawsuits as well, due to having “deep pockets.” However, suing the government entails an entirely different, unique set of laws that have been modified by a recent Illinois Supreme Court decision.

Immunity and the Public Duty Rule
Our legal system is based on the English common law, and we inherited some of its quirks. For instance, the ancient legal doctrine of sovereign immunity prevents the government from being liable for any type of injury or harm it causes. Sovereign immunity is a remnant of the idea that “the King can do no wrong.” The government simply could not be sued in Illinois up until 1959, when the Illinois Supreme Court abolished sovereign immunity altogether due to its “rotten foundation.”

While sovereign immunity was abandoned and the government lost its blanket immunity, our courts retained another English common-law doctrine known as the public duty rule. It states that local governments generally do not owe a duty of care to individual members of the public to provide adequate government services. Instead, local governments owe a duty of care to the public at large.

For example, Illinois courts have traditionally held that the public duty rule imposes no duty upon local governments and their employees that provide rescue services, such as police and fire departments, to protect individual members of the general public. If no duty is owed to provide rescue services to individuals, there can be no civil liability for failing to successfully rescue someone. The rule embodies the conclusion that a police officer’s or firefighter’s negligence, oversights, blunders or omissions are not the cause of harms committed by others, and therefore, there should be no liability for them.

In 2016, the Illinois Supreme Court abolished the long-standing public duty rule. The case at issue involved a 58-year-old woman who called 911, requesting an ambulance because she could not breathe. Emergency personnel arrived at her home to find the door locked with the appearance that no one was there, and they left without making a forced entry. The woman’s husband arrived home more than 40 minutes after she placed the 911 call and found her unresponsive. She was subsequently transported to a local hospital and pronounced dead. The woman’s family filed a lawsuit against all of the public entities and emergency personnel involved in the 911 call, alleging that their negligence and willful conduct in responding caused her pain, suffering and death.

Applying the public duty rule, the lawsuit was originally dismissed by the trial court and affirmed on appeal. However, the Illinois Supreme Court, reversing over 100 years of legal precedent, held that the public duty rule is no longer law in Illinois. Thus, the woman was owed an individual duty of care by emergency personnel, and her family was allowed to proceed with the lawsuit against them.

The Tort Immunity Act
While both sovereign immunity and the public duty rule have now fallen by the wayside, local governments still have another shield against civil litigation. In 1965, in the wake of the Illinois Supreme Court abolishing sovereign immunity, the Illinois General Assembly enacted the Local Governmental and Governmental Employees Tort Immunity Act, for the purpose of protecting local governments and public employees from liability arising from the operation of government.

The Tort Immunity Act provides public entities with two major benefits. First, the Act generally shortens the statute of limitations to one year. Second, it provides an extensive list of immunities in the form of affirmative defenses to lawsuits, which each prevent the diversion of public funds from their intended purposes to the payment of damage claims. In particular, local governments and their employees are provided immunity from lawsuits that arise from their negligence in the performance of their public duties. For example, the following are some of the immunities provided by the Act for which local public entities are not liable:

• Enacting a law, failing to adopt an enactment or failing to enforce any law;
• Issuing, denying, suspending or revoking permits and licenses or other authorizations;
• Failing to inspect or negligently inspecting private property for health and safety;
• Oral promises and misrepresentations of public employees;
• Negligent failure to supervise an activity on public property; and
• Injuries resulting from the participation in hazardous recreational activities.

Unlike sovereign immunity and the public duty rule, the Tort Immunity Act does not provide any immunity for actions beyond simple negligence. Local governments and their employees may be held liable for engaging in a course of action that 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.

In the recent past, local governments have been able to use both the Tort Immunity Act and the public duty rule to provide a broad shield for both negligence and willful and wanton conduct. Now, with only the Tort Immunity Act remaining, we can expect to see more civil lawsuits against local governments. That being said, the Tort Immunity Act remains a formidable defense for local governments, and the General Assembly has the ability to reintroduce the public duty rule in the form of legislation, if it so chooses. iBi