public duty rule in Illinois

2020DeSmet v. County of Rock Island, 219 Ill. 2d 497, 508-09 (2006) (“This court’s comments in [Aikens v. Morris, 145 Ill. 2d 273 (1991),] suggest *** that the public duty rule, at least in this context, has been incorporated into [the Act] as an ‘immunity.’ ”); see also Aikens v. Morris, 145 Ill. 2d 273 , 278 n.1 (1991) (“Under the rule, a police department’s duty to preserve the well-being of the community is owed to the public at large, rather than specific individuals.”). ¶ 42 Notably, however, the judicially created special duty doctrine was an exception to the public duty rule that applied i

2016An exception to these rules has been recognized where the municipality owes the injured party a special duty that is different from its duty to the general public.” Leone, 156 Ill. 2d at 37 . ¶ 38 The long-standing public duty rule “is grounded in the principle that the duty of the governmental entity to ‘preserve the well-being of the community is owed to - 11 - the public at large rather than to specific members of the community.’ ” Zimmerman, 183 Ill. 2d at 32 (quoting Schaffrath v. Village of Buffalo Grove, 160 Ill.

2017See Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 32 (1998) (“The public duty rule is a long-standing precept which establishes that a governmental entity and its employees owe no duty of care to individual members of the general public to provide governmental services, such as police and fire protection.”).

2016See Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 32 (1998) (“The public duty rule is a long-standing precept which establishes that a governmental entity and its employees owe no duty of care to individual members of the general public to provide governmental services, such as police and fire protection.”).

2019The court further noted that the public duty rule “existed ‘[i]ndependent[ly] of statutory or common-law concepts of sovereign immunity.’ ” Coleman, 2016 IL 117952, ¶ 44 (quoting Huey v. Town of Cicero, 41 Ill. 2d 361, 363 (1968)).

2019Furthermore, even if the case could be interpreted in that way, any “reject[ion]” of the public duty rule would have only lasted until 1968, when the supreme court expressly recognized the rule in Huey v. Town of Cicero, 41 Ill. 2d 361, 363 (1968). ¶ 29 Finally, plaintiffs’ counsel at oral argument also claimed that the public duty rule has never been applied to a “public improvement.” Again, as this argument was first raised at oral argument, it is not properly before this court.

2020DeSmet v. County of Rock Island, 219 Ill. 2d 497, 508-09 (2006) (“This court’s comments in [Aikens v. Morris, 145 Ill. 2d 273 (1991),] suggest *** that the public duty rule, at least in this context, has been incorporated into [the Act] as an ‘immunity.’ ”); see also Aikens v. Morris, 145 Ill. 2d 273 , 278 n.1 (1991) (“Under the rule, a police department’s duty to preserve the well-being of the community is owed to the public at large, rather than specific individuals.”). ¶ 42 Notably, however, the judicially created special duty doctrine was an exception to the public duty rule that applied i

2016Accordingly, Doe-3 did not abrogate the public duty rule or otherwise announce its demise. ¶ 48 Plaintiff also suggests that the decisions of this court in DeSmet, 219 Ill. 2d at 508-09 , and Aikens v. Morris, 145 Ill. 2d 273 , 278 n.1 (1991), imply that the public duty rule may no longer have sustained viability.

2019See, e.g., Harinek, 181 Ill. 2d at 345 (“the public duty rule *** prevents [governmental] units from being held liable for their failure to provide adequate governmental services”). ¶ 26 In their reply brief, plaintiffs next claim that the 1897 supreme court case of City of Chicago v. Seben, 165 Ill. 371 (1897), provides that “a [local public entity] acts ministerial without immunity when constructing, maintaining and operating sewers in executing its plan.” However, whether a governmental entity’s action is discretionary or ministerial is an issue with respect to application of the Tort Immun

2016And significantly, each of these legislative acts precedes Harinek’s express affirmation that this court “has *** retained the public duty rule.” Harinek, 181 Ill. 2d at 345 .

2006See Calloway v. Kinkelaar, 168 Ill. 2d 312, 326-27 (1995) (acknowledging “the public duty doctrine, a common law immunity based on public policy,” but declining to reach the issue of the rule’s applicability); Lovgren v. Citizens First National Bank of Princeton, 126 Ill. 2d 411, 417-18 (1989); see also Sundance Homes, Inc. v. County of Du Page, 195 Ill. 2d 257, 288 (2001) (Freeman, J., specially concurring, joined by McMorrow, J.).

2006See Calloway v. Kinkelaar, 168 Ill.2d 312, 326-27 , 213 Ill.Dec. 675 , 659 N.E.2d 1322 (1995) (acknowledging "the public duty doctrine, a common law immunity based on public policy," but declining to reach the issue of the rule's applicability); Lovgren v. Citizens First National Bank of Princeton, 126 Ill.2d 411, 417-18 , 128 Ill.Dec. 542 , 534 N.E.2d 987 (1989); see also Sundance Homes, Inc. v. County of Du Page, 195 Ill.2d 257, 288 , 253 Ill.Dec. 806 , 746 N.E.2d 254 (2001) (Freeman, J., specially concurring, joined by McMorrow, J.).

2019We believe that to be the reasoning behind the legislature’s enactment of section 4-102 of the Tort Immunity Act.” Id. at 521 . ¶ 16 The court concluded: 3 Zimmerman was expressly abrogated in Coleman v. East Joliet Fire Protection District, 2016 IL 117952 , which abolished the public duty rule and special duty exception. -5- “Although we firmly believe that citizens have a right to expect the police to respond in a situation like this, the issue here is whether section 4-102 of the Tort Immunity Act immunizes the defendants from liability and the consequent payment of public funds in satisfac

2018We believe that to be the reasoning behind the legislature’s enactment of section 4-102 of the Tort Immunity Act.” Id. at 521 . ¶ 16 The court concluded: “Although we firmly believe that citizens have a right to expect the police to respond in a situation like this, the issue here is whether section 4-102 of the Tort Immunity Act immunizes the defendants from liability and the consequent 3 Zimmerman was expressly abrogated in Coleman v. East Joliet Fire Protection District, 2016 IL 117952 , which abolished the public duty rule and special duty exception. 8 No. 1-17-0205 payment of public funds

2011"The public duty rule is a long-standing precept which establishes that a governmental entity and its employees owe no duty of care to individual members of the general public to provide governmental services, such as police and fire protection. [Citation.] This rule of nonliability is grounded in the principle that the duty of the governmental entity to `preserve the well-being of the community is owed to the public at large rather than to specific members of the community.' [Citation.]" Id. ¶ 33 The public duty rule "shields municipalities and their employees from liability when conducting c

2011"The public duty rule is a long-standing precept which establishes that a governmental entity and its employees owe no duty of care to individual members of the general public to provide governmental services, such as police and fire protection. [Citation.] This rule of nonliability is grounded in the principle that the duty of the governmental entity to `preserve the well-being of the community is owed to the public at large rather than to specific members of the community.' [Citation.]" Id. ¶ 33 The public duty rule "shields municipalities and their employees from liability when conducting c

2016Burdinie, 139 Ill. 2d at 508-09 . ¶ 42 While the public duty rule is a long-standing common-law rule, we have found very few Illinois cases applying the doctrine prior to the abolition of local governmental immunity by this court in Molitor in 1959.

2016Burdinie, 139 Ill. 2d at 508-09 . ¶ 42 While the public duty rule is a long-standing common-law rule, we have found very few Illinois cases applying the doctrine prior to the abolition of local governmental immunity by - 10 - this court in Molitor in 1959.

2023In such situations, the only relevant immunity provision is section 2-202 of the Act, which provides qualified immunity to public employees for acts or omissions “in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct.” 745 ILCS 10/2-202 (West 2020). ¶ 22 In their reply, defendants noted that Mr. Glover’s entire section 2-615 argument, including his reliance on Gordon, was predicated on “the public duty rule and its special duty exception,” a doctrine which had been abolished by the Illinois Supreme Court in Coleman v. East Joliet Fire 5 N

2023App. 3d at 1020—both of which dealt with the now-defunct special duty exception to the common-law public duty rule. ¶ 47 The public duty rule, which provided that local governmental entities and their employees owed no duty of care to individual members of the general public to provide governmental services, and the “special duty” exception to this rule were both abolished by our supreme court in Coleman, 2016 IL 117952, ¶ 61 .

2016Rather, this court has been clear that “ ‘the existence of a duty and the existence of an immunity are separate issues.’ ” Zimmerman, 183 Ill. 2d at 45 (quoting Barnett, 171 Ill. 2d at 388 ). ¶ 52 We have consistently held that the public duty rule survived the abolition of sovereign immunity and passage of the Tort Immunity Act.

2016Rather, this court has been clear that “ ‘the existence of a duty and the existence of an immunity are separate issues.’ ” Zimmerman, 183 Ill. 2d at 45 (quoting Barnett, 171 Ill. 2d at 388 ). ¶ 52 We have consistently held that the public duty rule survived the abolition of sovereign immunity and passage of the Tort Immunity Act.

2016Because of this distinction between duties and immunities, “neither this court’s decision in Molitor abolishing sovereign immunity, the General Assembly’s passage of the Tort Immunity Act, nor the ratification of the 1970 Illinois Constitution altered the common-law public duty rule that a governmental entity generally owes no duty to provide an individual citizen with specific municipal services.” Zimmerman, 183 Ill. 2d at 45 . ¶ 47 Plaintiff also argues, alternatively, that Doe-3 v. McLean County Unit District No. 5 Board of Directors, 2012 IL 112479 , should be read to nullify the public du

2016Because of this distinction between duties and immunities, “neither this court’s decision in Molitor abolishing sovereign immunity, the General Assembly’s passage of the Tort Immunity Act, nor the ratification of the 1970 Illinois Constitution altered the common-law public duty rule that a governmental entity generally owes no duty to provide an individual citizen with specific municipal services.” Zimmerman, 183 Ill. 2d at 45 . ¶ 47 Plaintiff also argues, alternatively, that Doe-3 v. McLean County Unit District No. 5 Board of Directors, 2012 IL 112479 , should be read to nullify the public du

2016In contrast, [under the rationale of the public duty rule] the tort liability or duty never existed. [Citations.]’ ” Zimmerman, 183 Ill. 2d at 46 (quoting Martin v. Lion Uniform Co., 180 Ill.

2016In contrast, [under the rationale of the public duty rule] the tort liability or duty never existed. [Citations.]” ’ Zimmerman, 183 Ill. 2d at 46 (quoting Martin v. Lion Uniform Co., 180 Ill.

2020DeSmet v. County of Rock Island, 219 Ill. 2d 497, 508-09 (2006) (“This court’s comments in [Aikens v. Morris, 145 Ill. 2d 273 (1991),] suggest *** that the public duty rule, at least in this context, has been incorporated into [the Act] as an ‘immunity.’ ”); see also Aikens v. Morris, 145 Ill. 2d 273 , 278 n.1 (1991) (“Under the rule, a police department’s duty to preserve the well-being of the community is owed to the public at large, rather than specific individuals.”). ¶ 42 Notably, however, the judicially created special duty doctrine was an exception to the public duty rule that applied i

2020DeSmet v. County of Rock Island, 219 Ill. 2d 497, 508-09 (2006) (“This court’s comments in [Aikens v. Morris, 145 Ill. 2d 273 (1991),] suggest *** that the public duty rule, at least in this context, has been incorporated into [the Act] as an ‘immunity.’ ”); see also Aikens v. Morris, 145 Ill. 2d 273 , 278 n.1 (1991) (“Under the rule, a police department’s duty to preserve the well-being of the community is owed to the public at large, rather than specific individuals.”). ¶ 42 Notably, however, the judicially created special duty doctrine was an exception to the public duty rule that applied i

2020App. 3d 774, 779 (2005) (holding that summary judgment for the defendant village was proper on the plaintiffs’ claims for sewer backup damages because even if the village owed a general duty to the public to prevent sewer backups, the public duty rule barred legal liability to individual - 12 - members of the public); Town of Cicero v. Metropolitan Water Reclamation District of Greater Chicago, 2012 IL App (1st) 112164 , ¶ 41 n.4. (affirming the dismissal of the complaint on other grounds but noting that the public duty rule would appear to bar claims against the District based on flooding and

2020App. 3d 774, 779 (2005) (holding that summary judgment for the defendant village was proper on the plaintiffs’ claims for sewer backup damages because even if the village owed a general duty to the public to prevent sewer backups, the public duty rule barred legal liability to individual - 12 - members of the public); Town of Cicero v. Metropolitan Water Reclamation District of Greater Chicago, 2012 IL App (1st) 112164 , ¶ 41 n.4. (affirming the dismissal of the complaint on other grounds but noting that the public duty rule would appear to bar claims against the District based on flooding and

2020The trial court also found that the retroactive application of the law would involve substantially more litigation preparation than could have been predicted and that “[t]his is a hardship on the [defendants] and their taxpayers considering the unpredictable and unexpected reversal of longstanding law, the complexity of the case, and the passage of time.” ¶ 21 The appellate court reversed, in part, finding that Coleman did apply retroactively and, therefore, the public duty rule did not apply to plaintiffs’ claims. 2019 IL App (1st) 170859, ¶ 49 .

2020See 2019 IL App (1st) 170859, ¶¶ 68, 71 . -7- ¶ 26 The trial court dismissed plaintiffs’ sixth amended complaint, pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2014)), due to the lack of duty owed under the public duty rule and the failure to allege any special duty.

2020Plaintiffs respond that they have suffered significant damages as a result of defendants’ conduct surrounding the stormwater system and that it would not be inequitable, or cause defendants hardship, to find that the public duty rule does not bar this cause of action from proceeding. ¶ 34 Our decision in Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11 (1959), is most helpful to understanding why it would be proper to apply a prospective-only application to Coleman.

2020Plaintiffs respond that they have suffered significant damages as a result of defendants’ conduct surrounding the stormwater system and that it would not be inequitable, or cause defendants hardship, to find that the public duty rule does not bar this cause of action from proceeding. ¶ 34 Our decision in Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11 (1959), is most helpful to understanding why it would be proper to apply a prospective-only application to Coleman.

2020See, e.g., Taylor v. Bi-County Health Department, 2011 IL App (5th) 090475, ¶ 36 (holding that, under the public duty rule, a county health department did not owe an individual duty to require that a child be provided with a specific vaccine); Donovan v. Village of Ohio, 397 Ill.

2020See, e.g., Taylor v. Bi-County Health Department, 2011 IL App (5th) 090475, ¶ 36 (holding that, under the public duty rule, a county health department did not owe an individual duty to require that a child be provided with a specific vaccine); Donovan v. Village of Ohio, 397 Ill.

2019Burdine v. Village of Glendale Heights, 139 Ill. 2d 501 , 508 (1990), overruled in part on other grounds, McCuen v. Peoria Park District, 163 Ill. 2d 125 (1994).

2016See Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 509 (1990), overruled on other grounds in McCuen v. Peoria Park District, 163 Ill. 2d 125 (1994); Huey, 41 Ill. 2d at 363 .

2019Here, the circuit court did not rely on the public duty rule to reach its decision and instead considered conventional tort principles and the relevant statutory immunities as instructed by Coleman. ¶ 30 Finally, even assuming arguendo that section 15.1 of the Emergency Telephone System Act did apply, the circuit court properly granted summary judgment in favor of the City because plaintiffs did not come forward with any evidence that might create any genuine issue of material fact as to whether the City’s conduct was willful or wanton. ¶ 31 Willful and wanton conduct is defined as “conduct as

2018Here, the circuit court did not rely on the public duty rule to reach its decision and instead considered conventional tort principles and the relevant statutory immunities as instructed by Coleman . ¶ 30 Finally, even assuming arguendo that section 15.1 of the Emergency Telephone System Act did apply, the circuit *929 *155 court properly granted summary judgment in favor of the City because plaintiffs did not come forward with any evidence that might create any genuine issue of material fact as to whether the City's conduct was willful or wanton. ¶ 31 Willful and wanton conduct is defined as