Civil Litigation FlashPoints April 2011

The recent opinions of the Illinois Supreme Court and the First District Appellate Court, summarized in this month’s FlashPoints, show the importance of always considering the potential application of the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101, et seq., when tort litigation involves a unit of local Illinois government or a public agency.

Tort Immunity: Limitations for Tort Claims in a Public Hospital Setting.

In Kaufmann v. Schroeder, No. 109738, 2011 WL 681796 (Ill. Feb. 25, 2011), the plaintiff was hospitalized in January 2006 at Jersey Community Hospital (JCH) in Jerseyville, Illinois. In her initial complaint filed on December 31, 2007, the plaintiff alleged that during her hospital stay she was sexually assaulted by her gynecologist while she was sedated for a medical exam or procedure. The lawsuit sought damages from the physician for alleged battery, intentional infliction of emotional distress, and negligence, as well as damages from the hospital. The allegations against JCH included negligent hiring and retention, negligent supervision, and vicarious liability for the doctor’s alleged misconduct. The initial complaint was filed within the general two-year limitations period provided by §13-212 of the Code of Civil Procedure for civil actions against a physician or a hospital. 735 ILCS 5/13-212.

JCH, however, is a public hospital organized and operated as a municipal corporation. It, therefore, qualifies for the protections accorded local public entities by the Illinois Local Governmental and Governmental Employees Tort Immunity Act. 745 ILCS 10/1/-206; see Carroll v. Paddock, 199 Ill. 2d 16, 764 N.E. 2d 1118, 262 Ill.Dec. 1 (2002). Section 8-101 of the Tort Immunity Act prescribes the time period for commencement of a personal injury action against a local Illinois public entity as follows:

No civil action other than an action described in subsection (b) may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued. [Emphasis added.] 745 ILCS 10/8-101(a).

The exception referred to in subsection (a) above and contained in subsection (b) is as follows:

No action for damages for injury or death against any local public entity or public employee, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of those dates occurs first, but in no event shall such an action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in the action to have been the cause of the injury or death. [Emphasis added.] 745 ILCS 10/8-101(b).

JCH filed a motion to dismiss alleging that the complaint’s causes of action asserted against it were time-barred because the lawsuit was not commenced within the one-year limitations provision contained in §8-101(a). The plaintiff countered that because her injuries were sustained during her hospitalization, they “arose out of patient care” and, therefore, the two-year statute of limitations provided by §8-101(b) rendered the complaint against the hospital timely. Kaufmann, supra, 2011 WL 681796 at *2. The Jersey County circuit court granted the hospital’s motion to dismiss, and the Fourth District Appellate Court affirmed. The Supreme Court granted the plaintiff’s petition for leave to appeal.

The sole issue on appeal to the Illinois Supreme Court was whether the plaintiff’s complaint was timely filed. According to the Supreme Court the answer to that question turned on whether the plaintiff’s injures “arose out of patient care” within the meaning of §8-101(b) of the Tort Immunity Act. In affirming the judgment of the appellate court, the majority reasoned that the plaintiff’s injury arose out of the doctor’s sexual assault, and not any medical care or treatment that she received at the hospital. For the majority, finding that the alleged injuries “arose out of” plaintiff’s medical care would embrace “but for” causation, a concept foreign to the court’s previous interpretations of the “arising out of” language. E.g., Orlak v. Loyola University Health System, 228 Ill.2d l, 885 N.E.2d 999, 319 Ill.Dec. 319 (2007); Brucker v. Mercola, 227 Ill.2d 502, 886 N.E.2d 306, 319 Ill.Dec. 543 (2007). Accordingly, the Supreme Court affirmed the appellate court’s determination that the dismissal of the plaintiff’s causes of action against the hospital, a municipal corporation, was proper because the complaint was not filed within one-year of the alleged injury.

For the dissenting justices, the majority departed from the court’s established precedent by focusing on the mechanism of the plaintiff’s injury rather than the totality of the circumstances. Whereas here, the injury occurred during the course of medical treatment and at the hands of the doctor performing the treatment, the dissent would squarely hold that it “arose out of patient care,” affording the plaintiff the benefit of the special two-year limitations period set forth in §8-101(b) of the Tort Immunity Act.

Tort Immunity: Municipalities, Police Officers, and the Escaping Prisoner.

In Ries v. City of Chicago, No. 109541, 2011 WL 681614 (Ill. Feb. 25, 2011), the plaintiffs sued the City and one of its police officers for injuries sustained in an accident when a police squad car ran a red light and crashed into the plaintiffs’ vehicle. In an interesting twist, the police car was driven by a person who had earlier escaped police custody while being detained, unrestrained and uncuffed, in the backseat of a running squad car. Ultimately, the case proceeded to trial before a jury resulting in a multi-million dollar verdict against the City. The jury answered “yes” to a special interrogatory that asked, “Did the City of Chicago engage in a course of action that showed an utter indifference to or conscious disregard for the safety of others?” 2011 WL 681614 at *3. The appellate court reversed finding initially that the City was immunized against all claims by operation of §§2-109, 4-102, and 4-106(b) of the Tort Immunity Act, and the Supreme Court granted the plaintiffs’ petition for leave to appeal.

The Supreme Court observed that the appellate court had correctly found the City immune from liability but took an overly complicated route to reach that decision. According to the court, the suspect who caused the accident and the plaintiffs’ injuries was clearly an escaping prisoner, and §4-106(b) of the Tort Immunity immunizes local public entities and their public employees against “[a]ny injury inflicted by an escaped or escaping prisoner.” 745 ILCS 10/4-106(b).

The plaintiffs urged the Supreme Court to consider that the City’s liability should not turn on the status of the person being pursued, but rather the acts and omissions of the Chicago police officers that resulted in the suspect’s stealing the squad car and the high speed chase that ended with the suspect running a stoplight and smashing into the plaintiffs’ automobile. Accordingly, the plaintiffs argued that the City could be found liable under §2-202 of the Tort Immunity Act, which has been applied to police chases. That section of the Act provides in relevant part that “[a] public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct.” 745 ILCS 10/2-202. The culmination of the plaintiffs’ argument was simply that it made no sense to have the City’s liability hinge on whether the person chased was an escaping prisoner.

In response, the Supreme Court determined that §4-106(b) of the Tort Immunity Act “relating to escaping prisoners” controlled the case over §2-202 because it was more specific to the facts of the case. The court then took the opportunity to reiterate that §2-202 does not provide a general willful and wanton exception to the other sections of the Tort Immunity Act. Citing In re Chicago Flood Litigation, 176 Ill.2d 179, 680 N.E.2d 265, 223 Ill.Dec. 532 (1997), the court reinforced the principle that if a Tort Immunity Act provision does not contain an exception for willful and wanton misconduct or otherwise, then none exists. The misconception that plaintiffs may escape the statutory immunities granted municipalities and their employees by proving willful and wanton misconduct was traced to Doe v. Calumet City, 161 Ill.2d 374, 641 N.E.2d 498, 204 Ill.Dec. 274 (1994). As for that case, the Supreme Court clarified that it was effectively overruled twice before by In re Chicago Flood Litigation, supra, and then by DeSmet v. County of Rock Island, 219 Ill.2d 497, 848 N.E.2d 1030, 302 Ill.Dec. 466 (2006).

Tort Immunity: Schools, Boards of Education, and the Protection of Students.

Green v. Chicago Board of Education, No. 1-09-2313, 2011 WL 693237 (1st Dist. Feb. 22, 2011), was brought following a tragic March 2008 incident at Crane Technical High School in Chicago, when the plaintiff’s decedent, a Crane Tech student was fatally shot on school grounds by a fellow student shortly after school was let out for the day. The complaint alleged that the Board of Education breached its duty to the decedent when it willfully and wantonly failed to provide adequate security, failed to remove certain violent individuals such as the shooter from school premises, failed to provide safe passage to students on and off school premises, and failed to perform the security measures it had voluntarily undertaken by permitting “armed attackers on and around the school.” 2011 WL 693237 at *2. Damages were sought under §2.1 of the Wrongful Death Act, 740 ILCS 180/0.01, and the Illinois survival statute, §27-6 of the Probate Act of 1975, 755 ILCS 5/27-6, against the Board of Education along with the shooter’s parent.

The Board filed a motion to dismiss the complaint pursuant to §2-619 of the Code of Civil Procedure, 735 ILCS 5/2-619, arguing that §4-102 of the Local Government and Governmental Employees Tort Immunity Act, 745 ILCS 10/4-102, provides absolute immunity to the Board and its employees against liability based on its alleged failure to provide adequate security. That section of the Act sets forth:

Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes, failure to detect or solve crimes, and failure to identify or apprehend criminals. 745 ILCS 10/4-102.

The circuit court granted the Board’s §2-619 motion to dismiss. On appeal, the plaintiff argued that §4-102 of the Tort Immunity Act does not bar willful and wanton conduct claims against the Board, as such claims are provided in other sections of the Act such as §§3-08 and 2-202. Previewing the Illinois Supreme Court’s decision filed just a few days later in Reis v. City of Chicago, No. 109541, 2011 WL 681614 (Ill. Feb.25, 2011), the First District Appellate Court relied on DeSmet v. County of Rock Island, 219 Ill.2d 497, 848 N.E.2d 1030, 302 Ill.Dec. 466 (2006), in affirming the circuit court’s dismissal in favor of the Board of Education. According to the appellate court, §4-102 of the Tort Immunity Act does not contain any exception for willful and wanton misconduct or for negligence. The court further determined that the plaintiff’s essential allegations against the Board boiled down to the failure to provide proper or adequate policing. As a consequence, the other provisions of the Tort Immunity Act involving supervision (§3-108) and acts and omissions in the execution or enforcement of any law (§2-202) were not applicable to the facts of the case.

Tort Immunity: Injuries on Public Property and Recreational Facilities.

In Tagliere v. Western Springs Park District, No. 1-09-2633, 2011 WL 803096 (1st Dist. Feb. 25, 2011), the plaintiff filed a complaint seeking damages for a broken ankle suffered by his seven-year-old daughter while she was playing on a seesaw at a park owned by the Park District. The evidence was conflicting concerning the seesaw’s condition or state of disrepair at the time of the accident. But, the evidence was undisputed that the apparatus was inspected regularly by Park District personnel.

The trial court entered summary judgment in favor of the defendant Park District under §3-106 of the Local Governmental and Governmental Employees Tort Immunity Act, which provides:

Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury. 745 ILCS 10/3-106.

Willful and wanton conduct is specifically defined in §1-210 of the Tort Immunity Act as:

[A] course of action which 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. This definition shall apply in any case where a ‘willful and wanton’ exception is incorporated into any immunity under this Act. [Emphasis added.] 745 ILCS 10/1-210.

On appeal from the trial court’s grant of summary judgment in favor of the Park District, the appellate court observed that §1-201 of the Act was amended in 1998 by adding the italicized language above. According to the court, the amendment clearly expressed the intent of the General Assembly to require the statutory definition of “willful and wanton” in all cases decided under the Tort Immunity Act to the exclusion of all other definitions, including those found in the common law.

In the appellate court, the plaintiff argued that the seesaw’s defects were obvious, and the Park District’s failure to discover them and make repairs during its periodic routine inspections constituted willful and wanton misconduct and provided the statutory exception to immunity. The appellate court disagreed, concluding that the failure to discover a defect, even after repeated inspection, may have been negligent, but did not constitute actual or deliberate intention to cause harm or show an utter indifference to or conscious disregard for the safety of others – the statutory definition of willful and wanton. Given that the plaintiff failed to provide any direct or circumstantial evidence that the Park District created the defect or knew of its existence before the accident, the appellate court concluded that the Park District was entitled to immunity and the circuit court’s grant of summary judgment was appropriate.