TORT IMMUNITY IN ILLINOIS
By BRIAN D. SCHWARTZ, Legislative Associate, Illinois Municipal League
EDITOR'S NOTE: The purpose of the following article serves only to inform the reader of general concepts in the law, and should not be construed as "legal advice." Always consult your municipal attorney before taking any definitive action.
The concept of tort immunity has been on the front burner of Illinois politics for nearly one hundred years. Over this period of time, the scope of immunity has gone from one extreme to the other. These rapid changes in the law have often made it difficult to determine to what extent a municipality and municipal officials are immune from their actions. In an attempt to clarify this question, the following article will take a brief look at: (1) the history of tort immunity in Illinois, (2) the extent to which municipalities and municipal officials are covered by the current Tort Immunity Act, and (3) the extent to which federal causes of action may increase liability.
HISTORY OF TORT IMMUNITY IN ILLINOIS
The Illinois Supreme Court, in 1898, first examined the question of sovereign immunity. In Kinnare v. City of Chicago, the Court held that units of local government were agents of the state, and like the state, enjoyed complete immunity.1 The Kinnare decision was closely followed by Illinois courts for the next six decades. Then, in 1959, the High Court reversed itself in Molitar v. Kaneland Community Unit District, finding that units of local government were no longer immune under the agency theory.2
Immediately after the Molitar decision, the Illinois General Assembly took up the issue of immunity for units of local government. The next session, the Legislature granted complete statutory immunity to counties and park districts, and partial immunity to school districts.3 From 1959 through 1964, immunity for local governments remained a loose patchwork of laws with some local governments receiving absolute immunity, some receiving limited immunity, and some, including municipalities, receiving no protection whatsoever.
In 1964, the Illinois Supreme Court decided yet another case that changed the concept of immunity for units of local government.4 The Court held the General Assembly's current piecemeal approach to immunity was unconstitutional. Specifically, Section 22 of Article IV of the Illinois Constitution provides that "[t]he General Assembly shall not pass special or local laws ... granting to any corporation, association or individual any exclusive privilege [or] immunity...."5 The Court found that various classifications of immunity for different units of local governments violated this prohibition against special legislation.6 The Court also found that giving persons injured by certain local governments the right to sue while denying the same right to those injured by other local governments, violated an individual's rights under Section 22 of the Illinois Constitution, and perhaps the Equal Protection Clause of the Federal Constitution.7 As a result of the High Court's decision, the General Assembly passed House Bill 1863 which became Illinois' "Local Governmental and Governmental Employees Tort Immunity Act," effective August 13, 1965.8 The new Tort Immunity Act was limited in its protection, but satisfied the Supreme Court's mandate that all units of local government receive equal immunity protection. The Act saw relatively few changes until 1986 when the so-called "insurance crisis" hit Illinois.
In order to relieve the negative effects of the insurance crisis, the General Assembly passed Senate Bill 1200 in the final hours of the 1986 legislative session.9 This comprehensive package reflects the current Illinois law with respect to tort immunity for units of local government.
THE LOCAL GOVERNMENT AND GOVERNMENTAL EMPLOYEES TORT IMMUNITY ACT
Current Illinois law provides only qualified immunity for municipalities and municipal officials through the Tort Immunity Act.10 It is important to note that the scope of immunity covers tort claims only, and does not negate an individual's right to redress under contract or other theories of relief. Furthermore, when liability is
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found to exist under the Act, municipalities and municipal officials who are acting within their official capacity are liable for actual damages only.
With respect to the municipality itself, immunity from tort liability is fairly complete. A municipality can never be liable for injuries caused by: failure to adopt or enforce a law, failure to issue or suspend any license or permit, failure to inspect or negligent inspection of property not under public ownership or control, or granting or failure to grant public welfare goods or monies. Furthermore, a municipality is not liable for injuries resulting from an oral promise or misrepresentation by its employees, libelous or slanderous actions by its employees, or any injury resulting from an action or omission of a public employee, when the employee himself would not be liable.11
In light of the above discussion, the obvious question becomes: when can a municipality be sued in tort for its misconduct? Though the case law continues to develop in this area, the standard seems to be that an individual can bring suit when the injury occurs on publicly controlled or owned property, and is caused by the willful and wanton misconduct of the unit of local government.
For example, in DiDomenico v. Romeoville, the city was held liable for injuries received by the defendant when he fell in a pot-hole in route to his legally parked car on a public street.12 The court stated that the plaintiff was an intended and permitted user of the public property and this fact, coupled with the city's knowledge of the dangerous condition, was enough to impose liability.13
Many more cases have found the municipality immune from the injuries suffered by the complainant. In Gabriel v. City of Edwardsville, the plaintiff sued the city to recover for injuries sustained when she walked into a street and tripped over a watermain cover.14 The court found that the plaintiff was walking outside the crosswalk at the time of the incident, and therefore the municipality had no duty to protect the plaintiff from harm.15 In a separate incident, the village of Willow Springs was found not to have violated the "willful and wanton" standard by failing to provide adequate water pressure for fire hydrants.16 The court found that the city acted within its capacity as a governmental entity and was thus absolutely immune under the State's Tort Immunity Act.17
Liability of municipal officials is somewhat less complete than that of municipalities. Under the Tort Immunity Act municipal officials receive absolute immunity for all determinations of public policy (if the official is in a position to make such policy), and all injuries caused by: failure to adopt or enforce a law, by issuance or revocation of a license or permit, by negligent inspection of property not under public ownership or control, or through negligent misrepresentation. Public officials also receive immunity for injuries caused by acts or omissions in the execution or enforcement of any law and for instituting or prosecuting any administrative or judicial proceeding unless, in either case, the official acts with willful and malicious intent. The municipal official is also protected from liability for injuries resulting from a law later found to be unconstitutional, as long as the official was acting in good faith at the time (except to the extent the official would have been liable if the law was valid).18
A majority of the cases which have considered the application of the Tort Immunity Act as it applies to municipal officials have upheld the concept of shielding public policy makers from liability. For example, in Springer v. Harwig, the mayor and other high ranking municipal officials were found absolutely immune from a defamation suit for statements made while acting within the scope of their official duties.19 In another case, the mayor was immune from a slander suit for calling a local businessman a liar and a cheat at a city council meeting.20
The courts, however, have not allowed municipal officials to hide behind a cloak of immunity for malicious and intentional misuse of their office. In Catalone v. Pechons, the court held that an official stepped beyond his official duties in claiming another official had taken a bribe, and was thus accountable for his actions.21 In Chicago Park District v. Herezel, municipal officers were held liable for knowingly misappropriating city funds.22
FEDERAL LAW AND THE TORT IMMUNITY ACT
Federal courts have held that under the Supremacy Clause of the U.S. Constitution, the Illinois Tort Immunity Act does not protect a municipality or municipal official from actions properly grounded in federal law. One federal cause of action that has often been used to circumvent the Tort Immunity Act is found
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within Chapter 42, Section 1983 of the United States Code. 23 Section 1983 imposes liability whenever any municipality or municipal official acts under color of law and subjects any person to a "deprivation of any right, privilege, or immunity secured by the [federal] Constitution and [state] laws".24
Even a cursory reading of the above language should impress the reader with the enormity of this cause of action. Since almost any municipal function can be considered "under color of law", §1983 seriously impinges upon protection given to local governments and government officials under the State's Tort Immunity Act.
Federal courts have interpreted §1983 as establishing slightly different liability for municipalities and municipal officials. Generally, a municipality will only be held liable if the plaintiff's injury may fairly be said to represent official custom or policy of the municipality.25 However, absent a specific ordinance, determining what constitutes a municipality's official custom or policy may be extremely difficult. However, case law seems to indicate that a municipal custom or policy can also be established through acts of certain high ranking city officials. If the official is the "final authority or ultimate repository of [city] power," liability is almost certain to exist.26 Hence, decisions of the mayor, village president, and department directors would constitute official policy, while decisions of lower level officials, like police, would not.
The Seventh Circuit has dealt directly with the issue of what constitutes sufficient custom so as to invoke municipal liability. In Lenard v. Argento the court held that statistical evidence of police misconduct was not enough to establish liability against the municipality absent an "affirmative link" between the police actions and authorization by a municipal official.27 However, other courts have differed on whether the above scenario would establish municipal liability.28 Nonetheless, where municipal officials were clearly aware of actions of a city's civil servants, liability clearly exists.
Liability of a municipal official differs from that of the municipality itself. A city official can be held liable under §1983 any time the official takes an action depriving any person of his or her rights, privileges or immunities. For example, the Supreme Court found a police officer was liable when he took actions that he should have known were in violation of the plaintiff's constitutional rights.29 However, the Court found that mere negligence which resulted in injury to an individual's person or property does not violate a person's due process rights.30
Section 1983 does, however, provide some immunity for the municipal official. If the municipal official is exercising administrative, executive, or ministerial duties, then the official is entitled to a qualified immunity if he or she acted with a reasonable good faith belief that all actions taken were lawful.31 Furthermore, members of a municipal board of trustees receives absolute immunity if acting in their legislative capacity.32
After reading the above article, a municipal official may feel slightly apprehensive about the extent to which he or she can be held liable under State and Federal law. Though the purpose of this article was to discuss the concept of immunity, it is not possible to do so without a discussion of liability. However, with careful planning and preparation in conjunction with your municipal attorney, municipal officials may conduct their business with confidence and without fear of impending litigation.
1. Kinnare v. City of Chicago, 171 Ill. 332 (1898).
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15. Id., at 652.
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