March 2016 • Volume 104 • Number 3 • Page 20
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High court abandons the ‘public duty rule’
The supreme court recently abolished the "public duty rule," which held that fire departments and like entities owed no duty of care to provide services.
In January, a divided Illinois Supreme Court abolished the common-law "public duty rule." The rule had long provided that local governmental entities and their employees owe no duty of care to provide governmental services, such as police and fire protection, to individual members of the public. That meant they couldn't be sued for, e.g., failing to arrive within a certain time.
The divided panel in Coleman v. East Joliet Fire Protection District, 2016 IL 117952, found that the rule is no longer viable based on "the interplay between the public duty rule and governmental tort immunity." Id. ¶ 22.
Justice Kilbride wrote the lead opinion, with Justice Burke concurring. Justice Freeman wrote a specially concurring opinion, which was joined by Justice Theis. Justice Thomas dissented, and was joined by Chief Justice Garman and Justice Karmeier.
In Coleman, the plaintiff had filed claims for wrongful death and survival against the fire department on behalf of the estate of Coretta Coleman, who had died of cardiac arrest while trying to obtain EMS services. After extensive motion practice, the only remaining counts were ones alleging willful and wanton conduct on behalf of the defendants. Those counts were disposed of on summary judgment under the public duty rule. The appellate court affirmed the trial court's ruling.
According to Moline attorney Bob Park, who typically represents defendants in civil cases, this is where the case should have ended; the public duty rule has been affirmed by Illinois courts, including the Illinois Supreme Court, for over 100 years. "The public duty rule was never before considered incompatible with tort immunities," he says.
The Coleman court took a different view. After analyzing the history of state governmental immunity in Illinois, the court turned to the history of the public duty rule, which has existed in some form in the United States since 1855. The majority found that it was time to abandon it for three reasons: "(1) the jurisprudence has been muddled and inconsistent in the recognition of the public duty rule and its special duty exception; (2) application of the public duty rule is incompatible with the legislature's grant of limited immunity in cases of willful and wanton conduct; and (3) determination of public policy is primarily a legislative function and the legislature's enactment of statutory immunities has rendered the public duty rule obsolete." Id. ¶ 54.
Park believes that the Coleman court had no basis for abandoning the principle of stare decisis with regard to the public duty rule. He points out that the court was so divided there was no majority opinion, yet it abandoned a well-established rule with over 100 years of precedent.
No need for both tort immunity and the public duty rule?
Plaintiff's lawyer Karen McNulty Enright of the McNabola Law Group disagrees. She says that from a practical standpoint, the combination of tort immunity and the public duty rule made it too difficult for injured individuals to obtain relief.
A plaintiff's only means of prevailing in the face of statutory governmental immunity is to show that the municipal entity engaged in willful and wanton conduct - a very narrow pathway to recovery. However, the public duty rule eliminated even that path for plaintiffs, with rare exceptions. It exempted governmental entities from liability in connection with providing services even if they were found to have committed willful and wanton conduct.
Enright believes that Justice Kilbride's opinion "clearly outlines that there is confusion and inconsistency" in the law. This confusion is the basis for abandoning stare decisis in Coleman. "When that happens, something needs to change," she says.
Park disagrees, noting that lack of duty and immunity are two separate legal concepts, which is why "the public duty rule was never before considered incompatible with tort immunities." The lead opinion acknowledges Park's point, but concludes that "putting the 'immunity cart' before the 'duty horse' caused applications of these concepts to become muddled, confusing, and unduly complicated." Id. ¶ 56.
The Coleman court also found that the legislature had carved out liability for cases of willful and wanton misconduct and the common law public duty rule was incompatible with the legislature's choice. Ultimately, the lead opinion left it to the legislature to determine whether it was necessary to retain the public duty rule, noting that it could always codify the rule.
Concurrence and dissent
In the specially concurring opinion, Justice Freeman agreed that it was time to abandon the public duty rule, but for a different set of reasons. Justice Freeman took issue with the lead opinion's view that the public duty rule and sovereign immunity are independent concepts.
Looking to the underlying concern behind both concepts, he found that "the public duty rule has always been predicated on the very same basis as the concepts underlying local governmental immunity." Id. ¶ 70. Quite simply, they are both based on the notion that "when a municipality performs a governmental function, the service is provided to protect the general welfare of the public." Id. As a result, Justice Freeman found that the public duty rule is essentially obviated by the abolition of sovereign immunity and the passage of tort immunity legislation.
Justice Thomas's scathing dissent took both the lead and specially concurring opinions to task for abandoning stare decisis with regard to the public duty rule. His opinion discounts Justice Kilbride's argument that the application of the law was muddled. He also notes that statutory tort immunity had existed for decades prior to the Coleman ruling.
Park thinks that "the abolition of the public duty rule will open up broad opportunities for plaintiffs' counsel to sue local governmental entities for bad outcomes that could have been prevented by better law enforcement." Enright, however, does not envision an increase in litigation because proving up cases based on a willful and wanton theory of liability is extremely difficult. "Forcing plaintiffs to prove intentional or reckless conduct does not hang municipalities out to dry."
As to the future of the public duty rule, Park says that he would be "surprised if there were not a concerted effort by politicians of both parties to enact legislation" codifying the rule.