special duty exception in Illinois

2008In Doe v. Calumet City, 161 Ill. 2d 374, 389-90 , 641 N.E.2d 498, 505 (1994), the Illinois Supreme Court held that there are two exceptions to the absolute immunity provided under sections 4 — 102 and 4 — 107: (1) the special-duty exception to the Tort Immunity Act and (2) wilful and wanton conduct in the execution or enforcement of law provided in section 2 — 202 of the Tort Immunity Act.

2008In Doe v. Calumet City, 161 Ill. 2d 374, 389-90 , 641 N.E.2d 498, 505 (1994), the Illinois Supreme Court held that there are two exceptions to the absolute immunity provided under sections 4 — 102 and 4 — 107: (1) the special-duty exception to the Tort Immunity Act and (2) wilful and wanton conduct in the execution or enforcement of law provided in section 2 — 202 of the Tort Immunity Act.

2019Village of Bloomingdale, 196 Ill. 2d at 490 ; Harinek, 181 Ill. 2d at 346 (“the question of whether the City owed plaintiff a duty under the special duty doctrine has no bearing on the separate question of whether the [Tort Immunity] Act immunizes the City from liability for plaintiff’s injuries”); Zimmerman, 183 Ill. 2d at 46 (“The distinction between an immunity and a duty is crucial, because only if a duty is found is the issue of whether an immunity or defense is available to the governmental entity considered ***.”).

2015The supreme court subsequently reaffirmed this position in Zimmerman: “Because the special duty doctrine is a judicially created exception to the public duty rule, the special duty doctrine cannot, and was not intended to, contravene the immunities provided to governmental entities under the Tort Immunity Act.” Zimmerman, 183 Ill. 2d at 46 .

1998Like the defendants in Leone, the defendants in Calloway v. Kinkelaar, 168 Ill. 2d 312 (1995), contended, for the first time on appeal, that the operation of the special duty doctrine as an exception to immunities granted under the Tort Immunity Act was an unconstitutional infringement on the power of the legislature to define the scope of governmental immunity.

1998In arriving at the conclusion that the plaintiffs negligence counts were barred because the plaintiff there never relied upon the special duty doctrine as a basis for recovery, this court declined to address the defendant’s constitutional challenge, as it was “an issue *** unnecessary to our disposition of the instant case.” Calloway, 168 Ill. 2d at 329 .

1998Three years after Burdinie, this court decided Leone v. City of Chicago, 156 Ill. 2d 33 (1993), where it was determined that the special duty doctrine was applicable to the plaintiffs cause of action under the facts and circumstances of that case.

1998In the course of our discussion, we observed that the City had raised the argument, for the first time on appeal, that the “special duty exception to municipal immunity cannot be squared with the express terms of the *** Tort Immunity Act” and “because the special duty exception is a judicially created doctrine, it cannot override the Act without offending *** the *** Constitution.” Leone, 156 Ill. 2d at 37-38 .

1998In Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 511 (1990), this court stated: “We further recognize that Illinois courts have discussed the special duty exception to the defenses and immunities provided under the Tort Immunity Act in cases decided both before and after the ratification of the present Illinois Constitution.” (Emphasis added.) The court in Burdinie went on to examine the four prongs of the special duty doctrine, refusing to relax the requirements for evading the immunities granted by the Tort Immunity Act.

1998In Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 511 (1990), this court stated: “We further recognize that Illinois courts have discussed the special duty exception to the defenses and immunities provided under the Tort Immunity Act in cases decided both before and after the ratification of the present Illinois Constitution.” (Emphasis added.) The court in Burdinie went on to examine the four prongs of the special duty doctrine, refusing to relax the requirements for evading the immunities granted by the Tort Immunity Act.

2023Estate of Hays v. County of Rock Island, 219 Ill. 2d 497, 515 (2006)), nor is there a special duty exception.

2011This court determined that "[w]hat emerges from this court's decision in Doe is a fact-specific application of section 2-202 that bears some striking similarities to an application of the special duty exception to the public duty rule." Id. at 519 , 302 Ill.Dec. 466 , 848 N.E.2d 1030 .

2020App. 3d 733, 736 (1988). ¶ 47 In 1998, the special duty exception was eliminated when the Illinois Supreme Court, overruling all previous holdings to the contrary, held that “the special duty doctrine may not operate to impose liability upon a public entity after a court has found that entity immune from liability under [the Act].” Harinek, 181 Ill. 2d at 347 .

2020App. 3d 733, 736 (1988). ¶ 47 In 1998, the special duty exception was eliminated when the Illinois Supreme Court, overruling all previous holdings to the contrary, held that “the special duty doctrine may not operate to impose liability upon a public entity after a court has found that entity immune from liability under [the Act].” Harinek, 181 Ill. 2d at 347 .

2010For instance, the Illinois Supreme Court has observed: “The special duty doctrine arose as a judicially created exception to the non-liability principles of the public duty rule, and is applicable in certain limited instances where a governmental entity has assumed a special relationship to an individual ‘so as to elevate that person’s status to something more than just being a member of the public.’ ” Zimmerman, 183 Ill. 2d at 32-33 , citing Schaffrath v. Village of Buffalo Grove, 160 Ill.

2005The special duty doctrine operates in limited circumstances where a governmental entity has assumed a special relationship to an individual “ ‘so as to elevate that person’s status to something more than just being a member of the public.’ ” Zimmerman, 183 Ill. 2d at 33 , quoting Schaffrath, 160 Ill.

2016The first decision of this court acknowledging the public duty rule and the special duty exception was in the 1968 decision of Huey, 41 Ill. 2d 361 .

2016The first decision of this court acknowledging the public duty rule and the special duty exception was in the 1968 decision of Huey, 41 Ill. 2d 361 .

2011We disagree. ¶ 42 "Pursuant to the voluntary undertaking theory of liability, one who gratuitously or for consideration renders services to another is subject to liability for bodily harm caused to the other by one's failure to exercise due care * * *." Frye v. Medicare-Glaser Corp., 153 Ill.2d 26, 32 , 178 Ill.Dec. 763 , 605 N.E.2d 557, 560 (1992).

2011We disagree. ¶ 42 "Pursuant to the voluntary undertaking theory of liability, one who gratuitously or for consideration renders services to another is subject to liability for bodily harm caused to the other by one's failure to exercise due care * * *." Frye v. Medicare-Glaser Corp., 153 Ill.2d 26, 32 , 178 Ill.Dec. 763 , 605 N.E.2d 557, 560 (1992).

1998The General Assembly is presumed to know the construction the courts have placed upon a statute ( In re May 1991 Will County Grand Jury, 152 Ill.2d 381, 388 , 178 Ill.Dec. 406 , 604 N.E.2d 929 (1992)) and is therefore presumed to know of the courts' continued recognition of the special duty doctrine as an exception to the immunities set forth in the Tort Immunity Act.

1998The General Assembly is presumed to know the construction the courts have placed upon a statute (In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 388 (1992)) and is therefore presumed to know of the courts’ continued recognition of the special duty doctrine as an exception to the immunities set forth in the Tort Immunity Act.

1998See Charles v. Seigfried, 165 Ill. 2d 482, 492 (1995).

1998See Charles v. Seigfried, 165 Ill. 2d 482, 492 (1995).

1995So, at common law, while the public duty doctrine protected governmental entities from tort liability in the exercise of customary duties toward the public at large, the special duty exception properly applied to avoid that protection when there was a departure from that customary conduct. ( Burdinie, 139 Ill.2d at 508, 509 , 152 Ill.Dec. 121 , 565 N.E.2d 654 .) In Bell v. Village of Midlothian (1980), 90 Ill.App.3d 967 , 46 Ill.Dec. 382 , 414 N.E.2d 104 , our appellate court devised a four-part test, about which there is more to be said later, which has since been universally applied to measu

1995So, at common law, while the public duty doctrine protected governmental entities from tort liability in the exercise of customary duties toward the public at large, the special duty exception properly applied to avoid that protection when there was a departure from that customary conduct. ( Burdinie, 139 Ill.2d at 508, 509 , 152 Ill.Dec. 121 , 565 N.E.2d 654 .) In Bell v. Village of Midlothian (1980), 90 Ill.App.3d 967 , 46 Ill.Dec. 382 , 414 N.E.2d 104 , our appellate court devised a four-part test, about which there is more to be said later, which has since been universally applied to measu

1997App. 3d 733 , 523 N.E.2d 22 (1988), the court found that the special duty exception applied because fire fighters had exerted direct and immediate control over the plaintiff.

1993The City forgets the very basic principle that what the special duty doctrine is an exception to is the rule that municipalities are immune from liability for injuries negligently caused by police officers or fire fighters while performing their official duties. ( Burdinie v. Village of Glendale Heights (1990), 139 Ill.2d 501, 509 , 152 Ill.Dec. 121 , 565 N.E.2d 654 .) It necessarily follows from this principle that when the exception is activated, liability will be imposed for the employee's negligence. ( Anthony v. City of Chicago (1988), 168 Ill.App.3d 733, 736 , 119 Ill.Dec. 554 , 523 N.E.

2011When the public official negligently exercises care or custody over the individual and the individual is injured as a proximate result of this negligence, the public official is liable." Id. at 616 , 92 Ill.Dec. 178 , 484 N.E.2d at 912 . ¶ 39 The four elements of the special duty exception are as follows: (1) the public entity must be uniquely aware of the particular danger or risk to which the plaintiff is exposed, (2) there must be allegations of specific acts or omissions on the part of the public entity, (3) the specific acts must be either affirmative or willful in nature, and (4) the inj

2011When the public official negligently exercises care or custody over the individual and the individual is injured as a proximate result of this negligence, the public official is liable." Id. at 616 , 92 Ill.Dec. 178 , 484 N.E.2d at 912 . ¶ 39 The four elements of the special duty exception are as follows: (1) the public entity must be uniquely aware of the particular danger or risk to which the plaintiff is exposed, (2) there must be allegations of specific acts or omissions on the part of the public entity, (3) the specific acts must be either affirmative or willful in nature, and (4) the inj

1994App. 2d 460 , 240 N.E.2d 321 (city did not owe special duty to school teacher killed on school premises by student; duty to protect teacher from criminal acts of third person is no more than the general duty owed to protect the safety and well-being of the public at large).) Since the special duty exception does not apply to the former situation (see Galuszynski v. City of Chicago (1985), 131 Ill.

1987App. 3d 505 , 475 N.E.2d 960 .) Our supreme court has also implicitly approved of the special duty exception.

2005Under these circumstances, the doctrine would cease to operate as an "exception” to sovereign immunity and would instead become an expansion of it.’ ( Leone , 156 Ill. 2d at 39 .) Therefore, plaintiffs can escape the statutory immunities granted municipalities and their employees either by proving facts that show the existence of a special duty and proving simple negligence or by proving willful and wanton conduct alone. ” (Emphasis added.) Plaintiffs note that Doe has been followed by this court in Fatigato v. Village of Olympia Fields , 281 Ill.

2005Under these circumstances, the doctrine would cease to operate as an “exception” to sovereign immunity and would instead become an expansion of it.’ (Leone, 156 Ill. 2d at 39 .) Therefore, plaintiffs can escape the statutory immunities granted municipalities and their employees either by proving facts that show the existence of a special duty and proving simple negligence or by proving willful and wanton conduct alone.” (Emphasis added.) Plaintiffs note that Doe has been followed by this court in Fatigato v. Village of Olympia Fields, 281 Ill.

1997See Eagan v. Chicago Transit Authority, 158 Ill. 2d 527 , 634 N.E.2d 1093 (1994) (refusing to address the constitutionality of a special duty exception to the Metropolitan Transit Act after holding that there was no special duty in the circumstances before it).

1997See Eagan v. Chicago Transit Authority, 158 Ill. 2d 527 , 634 N.E.2d 1093 (1994) (refusing to address the constitutionality of a special duty exception to the Metropolitan Transit Act after holding that there was no special duty in the circumstances before it).