For decades, Illinois cities, villages, fire protection districts and others providing police, fire protection and ambulance services have enjoyed general immunity from lawsuits brought by plaintiffs who may accuse paramedics, firefighters and police officers of failing to provide the level of protection or response individuals may believe they should have.
On Jan. 22, however, a majority of justices on the Illinois Supreme Court decided the time had come to undo the judicial rule underlying that immunity, finding in a 4-3 decision that the so-called “public duty rule” should be discarded.
Essentially, justices Thomas L. Kilbride, Anne M. Burke, Charles E. Freeman and Mary Jane Theis banded together to abolish the public duty rule, while Chief Justice Rita B. Garman, Robert R. Thomas and Lloyd A. Karmeier joined in a dissent to the majority position.
However, the issuance from the state Supreme Court included three separate opinions: a “lead opinion,” authored by Kilbride, to which Burke concurred; a second, concurring opinion from Freeman and Theis; and a scathing dissent, authored by Thomas.
“We conclude that the underlying purposes of the public duty rule are better served by application of conventional tort principles and the immunity protection afforded by statutes than by a rule that precludes a finding of a duty on the basis of the defendant’s status as a public entity,” Kilbride wrote in the lead opinion. “Accordingly, we hereby abolish the public duty rule and its special duty exception. Therefore, in cases where the legislature has not provided immunity for certain governmental activities, traditional tort principles apply.”
The case arose out of Will County, where the East Joliet Fire Protection District and other local emergency response services and dispatch agencies were sued by the family of a woman who died in her home when paramedics were unable to render aid quickly enough to her call for help with breathing problems.
According to court documents, Coretta Coleman called 911 in June 2008 from her home in an unincorporated Joliet neighborhood and asked for help, as she was experiencing respiratory problems. Her 911 call was promptly transferred, following standard protocols at that time, from the Will County 911 center to an operator at the Orland Central Dispatch, who would then dispatch an ambulance to the home. When the Orland dispatcher attempted to speak with Coleman, however, the court documents said Corretta did not respond to his questions. He then placed Coleman’s call into a “line for ambulance dispatch” for an “unknown medical emergency.”
Paramedics then went to her house, but received no response to knocks on the door and shouts of “Fire Department!” and saw nothing when they looked in through windows. After speaking with neighbors, they said they could not force entry, unless police were present. The first ambulance then left the scene, prompting a number of neighbors to call 911 to report the departure.
A second ambulance was dispatched to the scene, and, as those EMS responders pondered whether to force entry, Coleman’s husband purportedly returned home and let them in, 41 minutes after Coleman’s initial 911 call. Coleman was found unresponsive and was later pronounced dead at a hospital.
Coleman’s husband then sued, alleging willful and wanton misconduct and negligence against the various defendants. The case was filed in Cook County Circuit Court, but transferred to Will County.
There, a judge dismissed the lawsuit, saying the various EMS agencies were protected by the public duty rule. That finding was upheld by an appellate court.
Under the public duty rule, which dates to the 19th Century, local municipalities are presumed to “owe no duty to individual members of the general public to provide adequate government services, such as police and fire protection.” Generally, this rule has long immunized local governments from certain kinds of personal injury lawsuits.
In this case, the Coleman family challenged the rule itself, saying it allows governments to be treated differently than its citizens in injury litigation.
While each set of two justices differed in their reasons for believing so, a majority of Illinois Supreme Court justices agreed the public duty rule needed to go, saying the state constitution’s rejection of the concept of “sovereign immunity” meant immunity laws enacted by Illinois lawmakers should hold sway in deciding the conditions under which plaintiffs can sue municipalities and their associated EMS agencies. Should lawmakers wish to specifically immunize EMS agencies and municipal governments against such suits, they were free to do so, the justices said.
“Our constitutional provision abolishing sovereign immunity and the passage of various statutes providing for certain immunities with regard to official conduct of local governmental entities constitutes a comprehensive scheme for balancing the private and public interests at stake in assessing municipal tort liability,” wrote Freeman and Theis in their special concurring opinion. “Scrupulous application of the immunity statutes enacted by the General Assembly is the best way to achieve and maintain that balance.”
Dissenting justices, however, said the two-plus-two majority erred deeply in rejecting a principle the state Supreme Court had twice found did not conflict with either the state constitution or the state’s tort immunity laws.
Dissenting justices, led by Thomas, blasted the majority for abandoning long-established legal precedent upholding the public duty rule without any new, “compelling legal rationale” to do so.
Thomas wrote he understood justices may “strong disagree” with past court decisions and “therefore wish that they had been on the court when” those cases were decided.
“But that ship has sailed,” he said. Under the doctrine of stare decisis, precedent should rule.
“This court has been emphatic that ‘stare decisis … ‘expresses the policy of the courts to stand by precedents and to not disturb settled points’ and therefore we ‘will not depart from precedent ‘merely because the court is of the opinion that it might decide otherwise were the question a new one,’” Thomas wrote. “Yet that is precisely what the concurring justices are doing here.”
He said emergency responders encounter situations in which they must respond “in the midst of unfolding emergency situations when every decision they make is fraught with uncertainty and their own safety may be at risk” and they must be free to respond free from the risk of lawsuit from those questioning their actions “in hindsight.”
“Local public entities often provide needed services for their communities where the risk of potential liability to individuals would discourage local public entities from providing those services,” Thomas said.
The case attracted the attention of public policy groups and associations statewide, as a number of them, including the Illinois Trial Lawyers Association, the Illinois Association of Fire Protection Districts, Illinois Association of Defense Trial Counsel, Illinois Municipal League and the Illinois Public Employer Labor Relations Association, among others, submitted briefs on the questions in the case.
Attorney Roman R. Okrei, a former Will County judge, of Lockport, argued for the Coleman family before the state Supreme Court.
Attorneys Stephen H. DiNolfo, of the firm of Ottosen, Britz, Kelly, Cooper & Gilbert, of Naperville; Kimbley A. Kearney, of Clausen Miller P.C., of Chicago; and Kevin J. Clancy, of Lowis & Gellen, of Chicago, argued on behalf of the defendants, including the East Joliet FPD, Will County and Orland Fire Protection District.