Thursday, February 25, 2016

Illinois Supreme Court abolishes "public duty rule"

As you probably know the so-called “public duty rule" is a label given to the principle upon which courts base decisions holding  that local government entities do not have a duty to individuals rather than to the public as a whole -- unless it is affected by statute or if the conduct of the government gives rise to reasonable reliance on the part of the plaintiff.

The "rule" has been criticized by some courts and commentators as a way for jurisdictions to revive governmental immunity even after immunity was abolished (or regulated) by statute.  On the other hand, one can make the argument that it is a principle that is rooted in the concept of separation of powers in that it allows government branches to make choices without fear of being second guessed by other branches.

Last month the Illinois Supreme Court joined the ranks of those jurisdictions that have abolished the public duty rule in Coleman v. East Joliet Fire Protection District.

The Court, however, could not agree on the basis for the decision and, thus, issued a "plurality opinion."  Four justices agreed that the public duty rule should be abolished, but they disagreed on the reasons to support the conclusion.  Three justices dissented.

The first opinion, by Justice Kilbride, admits that "the primary rationale employed by the courts that abolished the public duty rule was that the doctrine was nothing more than a continuation of sovereign immunity and should not exist when sovereign immunity had been abolished."  However, Justice Kilbride disagreed with this since he concludes that the public duty rule "is not rooted in sovereign immunity nor did the public duty rule develop from any concepts of government immunity from suit."

Even so, the opinion holds that the rule should be abolished for three reasons: (1) the jurisprudence applying the rule and its special duty exception has become “muddled and inconsistent”; (2) application of the rule is inconsistent with the legislature’s acknowledgement of limited liability for willful and wanton misconduct; and (3) the legislature’s enactment of statutory immunities has rendered the rule obsolete.

In a concurring opinion, Justices Freeman and Theis argue that the public duty rule was based on sovereign immunity and, therefore, should have been abandoned when sovereign immunity was abolished in Illinois.

Even though the majority of the justices could not agree on the reasons for the decision, they agreed on the result and the public duty rule has now been officially abolished in the state.  For this reason, as the main opinion concludes,  "in cases where the legislature has not provided immunity for certain governmental activities, traditional tort principles apply." 

....until the legislature decides to take up the matter, that is, since, as the opinion also states, "[o]bviously, if the legislature determines that the public policy requires, it may codify the public duty rule, but we defer to the legislature in determining public policy."

The Appellate Strategist has a good review of the opinions here.

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