Friday, December 26, 2008
Government liability for death of someone under the influence?
In a case with facts very similar to those of Deucer v. Vecera, a case familiar to anyone using the Prosser on Torts casebook, the Illinois Appellate Court has decided that the city of Herrin, Ill. does not have immunity in a case brought by the parents of a teenager who died after the police released her even though she was clearly intoxicated. Interestingly, the Illinois Court reaches the opposite conclusion than that of the Court in Deucer. According to a report in today's Chicago Daily Law Bulletin, a police officer arrested an 18 year old around 3:30 a.m. for underage drinking. At the time, she was said to be ''incoherent'' and had a blood-alcohol level of 0.18 percent. The police detained the teenager, but later released her before someone arrived to pick her up. About 20 minutes later, the teenager was killed in a traffic accident while walking on a nearby street. The question for the court was whether the city has absolute immunity under section 4-102 of the Governmental and Governmental Employees Tort Immunity Act or whether the complaint fits within the exception for willful and wanton misconduct provided by section 2-202. Section 4-102 of the Tort Immunity Act provides, in pertinent part that "neither a local public entity nor a public employee is liable … if police protection service is provided, for failure to provide adequate police protection or service." This provision provides immunity for discretionary conduct and essentially protects the right of the government to decide how to best allocate its resources. Likewise, section 4-107 of the Tort Immunity Act provides that "neither a local public entity nor a public employee is liable for an injury caused by the failure to make an arrest or by releasing a person in custody." Section 2-202, on the other hand, provides 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." Thus, the key is whether the police officers acted in the process of executing or enforcing any law and the Court held that they did. Thus it concluded that section 2-202 applies and that the complaint created triable issues of fact concerning liability for willful and wanton acts of the police.