Jim Dey: Court reverses long-held 'public duty' ruling

Jim Dey: Court reverses long-held 'public duty' ruling

Most people's eyes glaze over when the subject of civil lawsuits and the rules that guide them come up.

But the nuclear bomb dropped last week by the Illinois Supreme Court will wake some of them up, particularly those local public officials who now find themselves with dramatically broader exposure to expensive lawsuits.

Rewriting decades of established law in Illinois, the high court — by a 4-3 margin — repealed the public-duty doctrine that holds local government entities, including fire and police departments, owe their duty to protect to the general public, not individual citizens.

The lawsuit opens the way for individuals to sue governmental entities based on some claim of harm caused to them as a result of the public entity's negligence.

The court's ruling in Coleman vs. East Joliet Fire Protection District arises from a lawsuit filed by the family of a Will County woman who died while awaiting the arrival of an ambulance.

"After much reflection, we have determined that the time has come to abandon the public duty rule," Justice Thomas Kilbride wrote for the court's majority.

Kilbride contended that "the underlying purposes of the public duty rule are better served by application of conventional tort principles and the immunity protection provided 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 was joined in his decision by Justice Anne Burke. Justices Charles Freeman and Mary Jane Theis wrote concurring opinions expressing their agreement with abolishing the public-duty doctrine but stating their own rationale for doing so.

Justice Robert Thomas wrote a vehement dissent, with Justices Lloyd Karmeier and Rita Garman joining him.

He accused the court's majority of making a "mockery of stare decisis," the doctrine of standing by a previous judicial ruling on a specific subject.

Thomas characterized Kilbride's reasons for making a change as "not compelling, not in the least."

"In fact, they are not 'reasons' at all but rather transparent ex post rationalizations for a foregone conclusion, none of which holds up to even a moment's scrutiny," Thomas said.

Whatever the merits of the court's ruling, the public-duty rule is history, at least for now.

But the Illinois Municipal League already has decided to ask legislators to reinstate it by statute.

"It's not a ruling that we were pleased to see," said Illinois Municipal League Executive Director Brad Cole, who called it a "significant shift in public policy."

Cole said that because the ruling will drive up the legal costs it will "impact local communities and the services they provide."

The municipal league's effort will be met by strong opposition from the Illinois Trial Lawyer's Association.

Champaign County Sheriff Dan Walsh was among those public officials distressed by the court's ruling.

"I think it could open a can of worms for cities and counties," Walsh said.

Speculating on possible litigation scenarios, Walsh cited cases like those of a burglar who commits a series of break-ins before being caught.

Could victims of all the break-ins after the first one sue the sheriff's office on the grounds that they would not have been victimized if police had arrested the burglar sooner?

"I can think of a lot of scenarios where someone can argue, 'It's willful and wanton negligence,' and a judge would say, 'It has to go to a jury (to decide),'" he said.

Champaign City Attorney Fred Stavins was not quite as concerned as Walsh, suggesting litigation would arise only in a "sliver of cases."

But, citing the facts in the Coleman case, Stavins said the ruling is "potentially troubling."

About 6:10 p.m. on June 7, 2008, Coretta Coleman called Will County 911 to report that she was having difficulty breathing and needed an ambulance. The 911 operator transferred the call, as regulations required, to another dispatcher but neglected to say it was a medical emergency.

The second dispatcher, Eric Johnson, tried to speak with Coleman but got no response. Johnson hung up and tried to call the Coleman residence twice but no one answered.

Johnson subsequently dispatched an ambulance, which arrived at the Coleman residence at 6:19 p.m. No one responded to paramedics' knocks and yells and medical personnel were reluctant to force their way in.

Confusion reigned. The bottom line is that the first ambulance left. Later, a second ambulance was dispatched and arrived at 6:51 p.m. Again, no one answered the door. But Coleman's husband arrived home and let the paramedics into the house, where they found her unconscious.

She later died at the hospital, and the family filed a wrongful death lawsuit against multiple defendants, including the dispatcher and the fire district.

Adding to the confusion surrounding the Coleman ambulance call is the simultaneous string of tornadoes that were creating havoc in that area, overwhelming first responders with calls for assistance.

Thomas said Kilbride "conveniently and conspicuously" failed to mention the weather disaster that he said illustrates "the continuing need for the public-duty rule."

"Under circumstances such as a mass disaster, local public entities must have the flexibility to prioritize and respond to community emergencies without having their judgment questioned," he wrote.

The biggest threat posed to governmental entities by the decision is not that defendants will win "willful and wanton negligence" claims against governmental entities, but that such lawsuits will be more expensive to defend. That kind of circumstance often leads to decisions to settle cases out of court because it's cheaper than paying to defend them in court.

"What I am concerned about is that it will prolong cases," Stavins said. "It does have the potential to run up our costs."

To cover those extra costs, governmental entities will be required to divert money from other programs to spend on insurance.

"I'd probably be upping the premiums if I was setting them," Sheriff Walsh said.

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com or at 217-351-5369.

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