# Coleman v. East Joliet Fire Protection District

> Illinois Supreme Court · January 22, 2016 · 46 N.E.3d 741

URL: https://www.frixlaw.com/law-library/cases/3171554

## Case

- **Court:** Illinois Supreme Court
- **Decided:** January 22, 2016
- **Citations:** 46 N.E.3d 741; 2016 IL 117952
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3171554

## How later opinions describe it (automated extraction)

- noting that "the issue of a duty is separate from the issue of immunity from liability based on that duty" and that immunity "does not occur from a denial of the tort's existence, but rather because the existing liability in tort is disallowed"
- explaining two potential lineages
- discussing the origins and development of the sovereign immunity doctrine

## Opinion text

2016 IL 117952

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

(Docket No. 117952)

MARCUS COLEMAN, as Successor Adm’r of the Estate of Coretta Coleman,
Deceased, Appellant, v. EAST JOLIET FIRE PROTECTION DISTRICT et al.,
Appellees.

Opinion filed January 22, 2016.

JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

Justice Burke concurred in the judgment and opinion.

Justice Freeman specially concurred, with opinion, joined by Justice Theis.

Justice Thomas dissented, with opinion, joined by Chief Justice Garman and
Justice Karmeier.

OPINION

¶1 The common-law “public duty rule” provides that a local governmental entity
and its employees owe no duty of care to individual members of the general public
to provide governmental services such as police and fire protection services. See
Huey v. Town of Cicero, 41 Ill. 2d 361, 363 (1968). In this appeal, we address the
continued viability of the public duty rule in Illinois.

¶2 A wrongful death and survival action was filed on behalf of the estate of Coretta
Coleman against defendants, East Joliet Fire Protection District 1 and its ambulance
crew, Louis Helis and Scott Mazor; Will County2 and its 911 operator, Laurie Zan;
and the Orland Fire Protection District, 3 also known as Orland Fire District and
doing business as Orland Central Dispatch, and its emergency medical dispatcher,
Eric Johnson. Coleman alleged that defendants’ negligent and/or willful and
wanton acts and omissions deprived Coretta of a chance to survive and caused her
pain and suffering.

¶3 The circuit court of Will County granted summary judgment in favor of all
defendants, finding that the public duty rule applied and that defendants owed
Coretta no special duty. The appellate court affirmed. 2014 IL App (3d) 120583-U.
We allowed plaintiff’s petition for leave to appeal. We now reverse and remand.

¶4 BACKGROUND

¶5 Coretta Coleman and her husband, Stanley, lived in an unincorporated area of
Will County called Sugar Creek. In June 2008, all 911 calls from the Sugar Creek
area were initially routed to the Laraway Public Safety Access Point, a police
dispatch center operated by the Will County sheriff’s office that handled only
police emergencies. The East Joliet Fire Protection District provided fire and
ambulance services to the Sugar Creek area and contracted with the Orland Fire
Protection District for dispatching those services. All medical emergency calls
from the Sugar Creek area were transferred from the Laraway Public Safety Access
Point to Orland Central Dispatch, whose operators then dispatched ambulances
operated by the East Joliet Fire Protection District.

¶6 The record indicates that on June 7, 2008, at 6:10 p.m., Coretta called 911. She
was connected to the Will County 911 operator on duty, Laurie Zan. Coretta told

1
East Joliet Fire Protection District is a municipal corporation authorized and organized under
the Fire Protection District Act (70 ILCS 705/1 et seq. (West 2006)).
2
Will County is a “body politic and corporate.” See (55 ILCS 5/5-1001 (West 2006)) (Counties
Code).
3
Orland Fire Protection District is a municipal corporation authorized and organized under the
Fire Protection District Act (70 ILCS 705/1 et seq. (West 2006)).
-2-
Zan that she could not breathe and needed an ambulance. Coretta gave her address
as “1600 Sugar Creek Drive” in Joliet, and told Zan to “hurry.” Zan told Coretta to
hold and then transferred the call to Orland Central Dispatch. Eric Johnson, an
emergency medical dispatcher for Orland Central Dispatch, received Coretta’s
transferred 911 call from Zan. Although the written procedures required Zan to
communicate the nature of Coretta’s emergency call, Zan hung up as soon as the
call was transferred and did not speak to Johnson. Johnson asked Coretta some
questions but received no response. Johnson did not know whether anyone was on
the line or whether the call was dropped. Johnson hung up and called Coretta’s
number twice but received a busy signal. Johnson testified that dispatchers are
trained to call the agency that transferred the 911 call if more information is needed,
but he did not. Johnson identified the nature of the call as an “unknown medical
emergency” and placed the call in line for an ambulance dispatch at 6:13 p.m.

¶7 At 6:16 p.m., East Joliet Fire Protection District ambulance 524, crewed by
Louis Helis and Scott Mazor, was dispatched to the Coleman residence. Helis and
Mazor were given Coretta’s address and told that the 911 call involved an
“unknown emergency.” Helis and Mazor arrived at the Coleman residence at 6:19
p.m. They were unable to enter the home because the doors were locked. They rang
the doorbell, pounded on the doors, and yelled “Fire Department!” but no one
answered. They looked in the windows of the home but did not see anyone. Helis
and Mazor radioed Orland Central Dispatch for more information and asked the
dispatcher, Jacqueline Johnson, to call Coretta. Jacqueline Johnson told Helis and
Mazor that “we’ll try in a minute.” Jacqueline Johnson recalled that when she
attempted to contact Will County for more information, the line was busy.

¶8 While at the Coleman home, Helis and Mazor were approached by two
neighbors who informed them that an elderly couple lived at the residence. The
man had heart issues, and they had seen him mow the lawn earlier that day, but his
truck was gone. The neighbors did not have the Colemans’ phone number but said
the woman was unlikely to answer the phone. Based on this information, Helis and
Mazor determined that a forced entry could not be made. Helis and Mazor told the
neighbors that they could not make a forced entry without a police officer present.
However, they advised that the neighbors could call the police and ask them to
perform a forced entry.

¶9 Helis and Mazor called their supervisor at the East Joliet Fire Protection
District, who ordered them to leave the scene and go back into service. Helis and
-3-
Mazor then called Orland Central Dispatch and told them to “be advised” there was
“no patient.” Helis and Mazor left the Coleman residence at 6:24 p.m.

¶ 10 After ambulance 524 left the Coleman residence, one of the neighbors who
spoke with Helis and Mazor called 911 and spoke with Zan. She told Zan the
paramedics were at the Coleman residence but left when no one answered the door.
The neighbor asked for police to be dispatched. Shortly thereafter, another
neighbor called 911 and told Zan there was an emergency at “1600 Sugar Creek
Drive.” At 6:37 p.m., Zan called Orland Central Dispatch and told Eric Johnson
that she had transferred a call to him earlier from a “female [who] was unable to
breathe” and that “all the neighbors are calling saying that the fire department left
and did nothing.” Johnson told Zan that “they were already there.” Zan responded,
“[a]ll right. Well, apparently they couldn’t get in the house, and they cleared from
the call. We don’t know if the lady is alive or dead.” Johnson attempted to dispatch
a second ambulance to the Coleman residence.

¶ 11 During her conversation with Eric Johnson, Zan did not give him Coleman’s
complete address. She said “1600 Sugar Creek,” but the Colemans’ subdivision
contains both a “Sugar Creek Court” and a “Sugar Creek Drive.” At 6:40 p.m.,
Johnson erroneously dispatched East Joliet Fire Protection District ambulance 534
to “1600 Sugar Creek Court,” instead of “1600 Sugar Creek Drive.” The
ambulance crew called Orland Central Dispatch to check the address when there
appeared to be no number 1600 on Sugar Creek Court. Eric Johnson called Will
County 911 for more information about the address. While Johnson spoke with a
Will County dispatcher, the crew of ambulance 534 found the Coleman residence
on their own. The ambulance arrived at the house at 6:51 p.m., 41 minutes after
Coretta made the initial 911 call. The crew knocked on the door, but no one
answered. They then called a supervisor to ask if they should force entry. Coretta’s
husband then arrived and let them into the house. The crew found Coretta
unresponsive, and she was pronounced dead at the hospital. Coretta died of cardiac
arrest brought on by a rapid onset of pulmonary edema. Coretta was 58 years old at
the time of her death.

¶ 12 Coretta’s surviving husband, Stanley, as administrator of Coretta’s estate, filed
claims for wrongful death and survival on behalf of the estate in the circuit court of
Cook County. The case was subsequently transferred to Will County. Stanley died
during the pendency of the proceedings, and the Colemans’ son, Marcus Coleman,

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the successor administrator of Coretta’s estate, was substituted as plaintiff in this
case.

¶ 13 Counts I through XIV of plaintiff’s complaint alleged willful and wanton
conduct against all defendants. Counts XV through XXVIII alleged negligence
“instead of willful and wanton conduct with the assumption, that may be wrong,
that under the current state of the law, a negligence claim will not permit recovery
due to immunity.” Plaintiff’s complaint indicated the negligence allegations were
made “to preserve the record in the event the law changes so that the government is
held to the same standards that the citizens are, or in the event that the Plaintiff’s
understanding of the law is wrong.”

¶ 14 Defendants East Joliet Fire Protection District, Louis Helis and Scott Mazor, as
well as Orland Fire Protection District and Eric Johnson, filed motions to dismiss
plaintiff’s complaint arguing, inter alia, that they were immune from civil liability
pursuant to section 3.150 of the Emergency Medical Services (EMS) Systems Act
(210 ILCS 50/3.150 (West 2006)). Defendants Will County and Laurie Zan filed a
motion to dismiss plaintiff’s complaint arguing, inter alia, that they were immune
from civil liability pursuant to section 15.1 of the Emergency Telephone System
Act (50 ILCS 750/15.1 (West 2006)). In response to defendants’ motions to
dismiss, plaintiff agreed that the negligence counts should be dismissed due to
immunity but argued that the counts alleging willful and wanton conduct should
not be dismissed because both the Emergency Medical Services (EMS) Systems
Act and the Emergency Telephone System Act provide liability for willful and
wanton conduct. The trial court granted the motions to dismiss in part, dismissing
plaintiff’s negligence counts, but denied defendants’ motions to dismiss plaintiff’s
counts alleging willful and wanton conduct.

¶ 15 Defendants filed motions for summary judgment on plaintiff’s remaining
willful and wanton counts, arguing that: (1) they owed no duty to Coretta under the
public duty rule; and (2) even if they did owe Coretta a duty, they were immune
from liability under section 3.150 of the Emergency Medical Services (EMS)
Systems Act (210 ILCS 50/3.150 (West 2006)) and/or section 15.1 of the
Emergency Telephone System Act (50 ILCS 750/15.1 (West 2006)), because their
conduct was not willful and wanton. Defendants East Joliet Fire Protection District
and its employees, Helis and Mazor; as well as Will County, and its employee, Zan,
also asserted absolute immunity under various sections of the Local Governmental
and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101 et seq.
-5-
(West 2006)). The trial court granted summary judgment in favor of all defendants
on the willful and wanton counts under the public duty rule. The trial court held that
the “special duty” exception to the public duty rule did not apply to any of the
defendants because Coretta “initiated the contact with the municipality and was not
under the direct or immediate control of any of the defendants.” The trial court did
not reach the issue of immunity. The appellate court affirmed. 2014 IL App (3d)
120583-U.

¶ 16 We allowed plaintiff’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Jan. 1,
2015)). We allowed amicus curiae briefs to be filed by: (1) the Illinois Trial
Lawyers Association; (2) the Intergovernmental Risk Management Agency; (3) the
Illinois Association of Defense Trial Counsel; (4) the Illinois Municipal League,
the Illinois Public Employer Labor Relations Association and the Illinois
Community College Trustees Association; (5) the Illinois Association of Fire
Protection Districts, the Northern Illinois Alliance of Fire Protection Districts and
the Illinois Fire Chiefs Association; and (6) the Municipal Insurance Cooperative
Agency and the McHenry County Municipal Risk Management Agency. Ill. S. Ct.
R. 345 (eff. Sept. 20, 2010).

¶ 17 ANALYSIS

¶ 18 Initially, we address the motion of Orland Fire Protection District and Eric
Johnson to strike certain parts of plaintiff’s separate appendix as well as references
to those sections contained in plaintiff’s brief, arguing that those sections are
outside the appellate record. Plaintiff filed an objection to the motion to strike,
pointing out that the material at issue, with the exception of two sentences, are
printouts of deposition statements contained on a computer disk that is part of the
record. Plaintiff asserts that he provided the hard copies for this court’s
convenience and that one of the two sentences not included on the disk was testified
to by another witness, while the other sentence is not implicated in the controversy
before this court. Alternatively, plaintiff argues that the court can simply ignore the
two sentences without striking anything from the record or the briefs. We ordered
the motion taken with the case.

¶ 19 “This court has recognized that striking a portion of an appellate brief ‘ “is a
harsh sanction,” ’ appropriate only if a violation of our procedural rules interferes
with or precludes our review.” People v. Howard, 233 Ill. 2d 213, 224 (2009)
-6-
(quoting In re Detention of Powell, 217 Ill. 2d 123, 132 (2005), quoting Moomaw v.
Mentor H/S, Inc., 313 Ill. App. 3d 1031, 1035 (2000)). Given plaintiff’s
clarification of the material and statements at issue, we find that these matters do
not hinder or preclude our review of the case, and we therefore deny the motion to
strike.

¶ 20 We begin our analysis by addressing the standard of review. Summary
judgment is appropriate if the pleadings, depositions, and admissions on file,
together with affidavits, if any, viewed in the light most favorable to the nonmoving
party, reveal that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c)
(West 2010); Kajima Construction Services, Inc. v. St. Paul Fire & Marine
Insurance Co., 227 Ill. 2d 102, 106 (2007). We review the trial court’s decision on
a motion for summary judgment de novo. Pielet v. Pielet, 2012 IL 112064, ¶ 30.

¶ 21 The primary issue we are asked to address in this appeal is whether the public
duty rule remains viable. The continued viability of the public duty rule is a
question of law subject to de novo review. Vancura v. Katris, 238 Ill. 2d 352,
373-74 (2010).

¶ 22 The continued viability of the public duty rule depends on the interplay
between the public duty rule and governmental tort immunity. Therefore, before
addressing the continued viability of the public duty rule in Illinois and, ultimately,
whether the trial court properly granted summary judgment in favor of defendants,
we examine the origins and history of various forms of governmental tort immunity
in Illinois. We begin by reviewing state governmental immunity.

¶ 23 State Governmental Immunity

¶ 24 The immunity of the State of Illinois and its agencies from suit of any kind,
unless the State consents to be sued, is rooted in the English common-law doctrine
of sovereign immunity. S.J. Groves & Sons Co. v. State, 93 Ill. 2d 397, 400 (1982).
Under the English common law, sovereign immunity was based on the political
theory that the King could do no wrong and that “the Crown is immune from any
suit to which it has not consented.” Feres v. United States, 340 U.S. 135, 139
(1950).

-7-
¶ 25 The first Illinois Constitution, adopted in 1818, as part of the process of Illinois
being admitted to the Union, contained no provision for sovereign immunity. See
Ill. Const. 1818. In 1819, shortly after being admitted to statehood, the State of
Illinois adopted the common law of England. See 1833 Ill. Laws 425; see also S.J.
Groves & Sons, 93 Ill. 2d at 400. The Illinois Constitution of 1848 contained the
first constitutional provision addressing sovereign immunity and provided that
“The general assembly shall direct by law in what manner suits may be brought
against the state.” Ill. Const. 1848, art. III, § 34. In 1870, sovereign immunity
officially became a constitutional doctrine in Illinois. Article IV, section 26, of the
Illinois Constitution of 1870 provided: “[t]he state of Illinois shall never be made
defendant in any court of law or equity.” Ill. Const. 1870, art. IV, § 26. The
constitutional doctrine of sovereign immunity applied to lawsuits of any kind
against the State of Illinois and its agencies unless the State consented to be sued.
See Monroe v. Collins, 393 Ill. 553, 557 (1946). Consequently, no suit could be
maintained against the State.

¶ 26 In 1877, a Commission of Claims was created to hear claims against the State
(1877 Ill. Laws 64). In 1903, the Court of Claims Act repealed the Act of 1877 and
gave the Court of Claims exclusive jurisdiction to rule on claims against the State.
1903 Ill. Laws 140. The Court of Claims Act of 1917 repealed the Act of 1903, but
the Court of Claims retained exclusive jurisdiction to hear claims against the State.
1917 Ill. Laws 325. In 1945, a new Court of Claims Act was passed allowing for
limited recovery against the State of Illinois for the torts of its agents and was
subsequently amended in 1951 (Ill. Rev. Stat. 1951, ch. 37, ¶ 439.8), with the Court
of Claims continuing to retain exclusive jurisdiction for claims against the State.
Henry Novoselsky & John Peterson, State Immunity in Illinois: The Court of
Claims, 15 DePaul L. Rev. 340 (1965).

¶ 27 In 1970, the Committee on General Government to the Illinois Constitutional
Convention of 1970 determined that the public interest would best be served by
eliminating the doctrine of sovereign immunity from the new constitution. See 6
Record of Proceedings, Sixth Illinois Constitutional Convention 573 (hereinafter
Proceedings). One of the proposals was worded: “[e]xcept as the General Assembly
may otherwise provide, the sovereign immunity of the State of Illinois and all other
units of government is abolished.” 6 Proceedings 678. The provision that was
ratified, however, does not expressly include lower units of government, and

-8-
provides: “[e]xcept as the General Assembly may provide by law, sovereign
immunity in this State is abolished.” Ill. Const. 1970, art. XIII, § 4. 4

¶ 28 In 1972, the General Assembly, pursuant to its constitutional authority, passed
the State Lawsuit Immunity Act. See Pub. Act 77-1776, § 1 (eff. Jan. 1, 1972); 745
ILCS 5/0.01 et seq. (West 2014). Section 1 of the State Lawsuit Immunity Act
provides that, except as provided in the Court of Claims Act (705 ILCS 505/1
et seq. (West 2014)) and other specified statutes, “the State of Illinois shall not be
made a defendant or party in any court” (745 ILCS 5/1 (West 2014)). The Court of
Claims Act, in turn, provides that the Court of Claims possesses exclusive
jurisdiction to hear and determine various matters, including “[a]ll claims against
the State for damages in cases sounding in tort, if a like cause of action would lie
against a private person or corporation in a civil suit” and, with certain exceptions,
limits a claimant’s damages. 705 ILCS 505/8(d) (West 2014). Accordingly, state
sovereign immunity has been abolished and replaced by the State Lawsuit
Immunity Act (745 ILCS 5/0.01 et seq. (West 2014)). We now examine the origins
and history of local governmental tort immunity in Illinois.

¶ 29 Local Governmental Tort Immunity

¶ 30 Local governmental tort immunity in Illinois was first recognized in 1844, in
Hedges v. County of Madison, 6 Ill. 567 (1844), adopting the immunity doctrine of
Russell v. Men Dwelling in the County of Devon, 2 Term Rep. 671, 100 Eng. Rep.
359 (1788). Russell involved a tort action against an unincorporated county where
the action was disallowed because the county was unincorporated and had no fund
to pay a judgment.

¶ 31 In Hedges, this court held that a county was immune from liability for its failure
to maintain a bridge in safe condition. The rationale was that protecting counties
from liability preserved public funds for public purposes. Hedges, 6 Ill. at 571.

4
As explained below, however, this court had previously abolished the immunity of units of
local government in Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11 (1959).
This court has recognized that the 1970 constitutional provision abolishing sovereign immunity
“ ‘embodies the presumptive rule from Molitor that units of local government are subject to tort
liability,’ and provides that the General Assembly possessed the exclusive power to determine
whether such a governmental unit is statutorily immune from liability.” Zimmerman v. Village of
Skokie, 183 Ill. 2d 30, 44 (1998) (quoting Harinek v. 161 North Clark Street Ltd. Partnership, 181
Ill. 2d 335, 344-45 (1998)).
-9-
Common-law local governmental tort immunity was eventually extended to
townships (Town of Waltham v. Kemper, 55 Ill. 346 (1870)), drainage districts
(Elmore v. Drainage Commissioners, 135 Ill. 269 (1890)), and school districts
(Kinnare v. City of Chicago, 171 Ill. 332 (1898), overruled in part by Molitor v.
Kaneland Community Unit District No. 302, 18 Ill. 2d 11 (1959)). These units of
local government were considered quasi-corporations and “local subdivisions of
the State, established by the sovereign power of the State, clothed with but few
corporate powers.” Hollenbeck v. County of Winnebago, 95 Ill. 148, 162-63 (1880).
Accordingly, no tort action could be maintained against units of local government
that were established by the State.

¶ 32 Municipalities (cities, villages, and incorporated towns), on the other hand,
were held liable under the common law for torts committed in a proprietary
capacity rather than a traditional governmental activity. See, e.g., Roumbos v. City
of Chicago, 332 Ill. 70, 74 (1928). In Culver v. City of Streator, 130 Ill. 238 (1889),
this court observed:

“in those [governmental] matters the city acts only as the agent of the State, in
the discharge of duties imposed by law for the promotion and preservation of
the public and general welfare, as contradistinguished from mere corporate
acts, having relation to the management of its corporate or private concerns,
and from which it derives some special or immediate advantage or emolument
in its corporate or private character.” Culver, 130 Ill. at 244-45.

¶ 33 Thus, local governmental tort immunity varied, depending on whether the
claim was made against a local governmental subdivision of the State or against a
municipality. The common-law doctrine of local governmental tort immunity
changed in 1959, with this court’s decision in Molitor, 18 Ill. 2d 11. In Molitor, this
court abolished governmental tort immunity of school districts for the negligence
of their employees. Molitor effectively abolished governmental tort immunity for
all units of local government. See List v. O’Connor, 19 Ill. 2d 337, 340 (1960);
Walker v. Forest Preserve District, 27 Ill. 2d 538 (1963).

¶ 34 In 1965, in response to this court’s decision in Molitor, the legislature enacted
the Local Governmental and Governmental Employees Tort Immunity Act (Tort
Immunity Act) (745 ILCS 10/1-101 et seq. (West 2014)). The Tort Immunity Act
provides that its purpose “is to protect local public entities and public employees
from liability arising from the operation of government. It grants only immunities

- 10 -
and defenses.” 745 ILCS 10/1-101.1 (West 2014). The Tort Immunity Act applies
to “[l]ocal public entit[ies],” including counties, fire protection districts, and other
local governmental bodies. 745 ILCS 10/1-206 (West 2014). “The Tort Immunity
Act adopted the general principle that local governmental units are liable in tort, but
limited this liability with an extensive list of immunities based on specific
government functions.” In re Chicago Flood Litigation, 176 Ill. 2d 179, 192
(1997).

¶ 35 Relevant to this appeal, the General Assembly has also enacted other legislation
that provides immunity for various emergency services such as the Emergency
Medical Services (EMS) Systems Act (210 ILCS 50/3.150 (West 2006)) and the
Emergency Telephone System Act (50 ILCS 750/15.1 (West 2006)). Thus, in
Illinois, the common-law doctrine of local governmental tort immunity has been
replaced by the Tort Immunity Act and other statutes that grant tort immunity for
various governmental services provided to the public. With this understanding of
the history and development of state immunity and local governmental tort
immunity, we now examine the origin and history of the public duty rule.

¶ 36 Public Duty Rule

¶ 37 The common-law “public duty rule” provides that local governmental entities
owe no duty to individual members of the general public to provide adequate
government services, such as police and fire protection. See Burdinie v. Village of
Glendale Heights, 139 Ill. 2d 501, 509 (1990), overruled on other grounds in
McCuen v. Peoria Park District, 163 Ill. 2d 125 (1994); Huey, 41 Ill. 2d at 363. In
Leone v. City of Chicago, 156 Ill. 2d 33 (1993), this court stated:

“The courts of this State have held as a matter of common law that
municipalities are generally not liable for failure to supply police or fire
protection [citation], nor are they liable for injuries negligently caused by police
officers or fire fighters while performing their official duties [citation]. An
exception to these rules has been recognized where the municipality owes the
injured party a special duty that is different from its duty to the general public.”
Leone, 156 Ill. 2d at 37.

¶ 38 The long-standing public duty rule “is grounded in the principle that the duty of
the governmental entity to ‘preserve the well-being of the community is owed to

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the public at large rather than to specific members of the community.’ ”
Zimmerman, 183 Ill. 2d at 32 (quoting Schaffrath v. Village of Buffalo Grove, 160
Ill. App. 3d 999, 1003 (1987)).

¶ 39 The public duty rule is believed to have originated in the United States Supreme
Court case of South v. Maryland, 59 U.S. 396 (1855). See David S. Bowers, Tort
Law—The Public Duty Doctrine: Should It Apply in the Face of Legislative
Abrogation of Sovereign Immunity?—Coleman v. Cooper, 12 Campbell L. Rev.
503, 506 (1990); John Cameron McMillan, Jr., Note, Government Liability and the
Public Duty Doctrine, 32 Vill. L. Rev. 505, 509 (1987). In South, the plaintiff sued
the sheriff for refusing to enforce the laws of the state and for failing to protect the
plaintiff after he was kidnapped and forced to pay a ransom to be released. The
Supreme Court found that the sheriff’s duty to keep the peace was a “public duty,
for neglect of which he is amenable to the public, and punishable by indictment
only.” South, 59 U.S. at 403. The Supreme Court, citing the common law of
England, indicated this had been the law for centuries. South, 59 U.S. at 403.

¶ 40 Some courts, however, cite to Thomas M. Cooley’s 1880 treatise on tort law as
the origin of the public duty rule. Jayme S. Walker, Insulating Negligent Police
Behavior in Indiana: Why the Victims of a Drunk Driver Negligently Released by a
Police Officer Have No Remedy, 23 Val. U. L. Rev. 665, 674 n.60 (1989) (citing as
examples of courts citing to Cooley’s treatise as the origin of the public duty rule:
Trautman v. City of Stamford, 350 A.2d 782, 784 (Conn. Super. Ct. 1975); Leger v.
Kelley, 110 A.2d 635, 638 (Conn. Super. Ct. 1954); Sawicki v. Village of Ottawa
Hills, 525 N.E.2d 468 (Ohio 1988); DeWald v. State, 719 P.2d 643, 652-53 (Wyo.
1986)). Cooley’s treatise states:

“The rule of official responsibility, then, appears to be this: that if the duty
which the official authority imposes upon an officer is a duty to the public, a
failure to perform it, or an inadequate or erroneous performance, must be a
public, not an individual injury and must be redressed, if at all, in some form of
public prosecution. On the other hand, if the duty is a duty to the individual,
then a neglect to perform it, or to perform it properly, is an individual wrong,
and may support an individual action for damages.” Jayme S. Walker,
Insulating Negligent Police Behavior in Indiana: Why the Victims of a Drunk
Driver Negligently Released by a Police Officer Have No Remedy, 23 Val. U.
L. Rev. 665, 674 n.60 (1989) (quoting Thomas M. Cooley, A Treatise on the
Law of Torts or the Wrongs Which Arise Independent of Contract 379 (1880)).
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¶ 41 The public duty doctrine was widely accepted in most jurisdictions. See Ezell v.
Cockrell, 902 S.W.2d 394, 397 n.2 (Tenn. 1995) (citing Leake v. Cain, 720 P.2d
152, 155 n.6 (Colo. 1986) (en banc) (quoting Thomas M. Cooley, A Treatise on the
Law of Torts or the Wrongs Which Arise Independent of Contracts 379 (1880)),
and Kelly Mahon Tullier, Note, Governmental Liability for Negligent Failure to
Detain Drunk Drivers, 77 Cornell L. Rev. 873, 887 (1992)). Over time, however,
courts developed exceptions to the public duty doctrine. For example, the “special
duty exception” to the public duty rule is applicable only in limited cases when the
local governmental entity owes a special duty of care to a particular individual that
is different from the duty it owes to the general public. Burdinie, 139 Ill. 2d at
508-09.

¶ 42 While the public duty rule is a long-standing common-law rule, we have found
very few Illinois cases applying the doctrine prior to the abolition of local
governmental immunity by this court in Molitor in 1959. The first decision of this
court acknowledging the public duty rule and the special duty exception was in the
1968 decision of Huey, 41 Ill. 2d 361. The absence of cases applying the public
duty rule and the special duty exception prior to the abolition of local governmental
immunity is not surprising. Until local governmental immunity was abolished in
Molitor, the public duty rule and the special duty exception remained in abeyance.
In other words, local governmental immunity stood as an absolute bar to the
enforcement of any civil liability arising from a breach of any duty. As one court
aptly noted:

“While governmental immunity remained in effect, this type of court action
remained in abeyance. It remained in abeyance not on account of absence of
duty on the part of a municipality to the injured or deceased person, but for the
reason that where the factual basis of the claim was involved in the performance
of a governmental function (such as police duty), the State had not permitted
itself or its political subdivisions or municipal corporations to be sued. Where
the immunity was removed, this bar no longer stood against the enforcement of
civil liability arising from breach of a duty that existed before, but which could
not be enforced until the immunity was waived.” Schuster v. City of New York,
154 N.E.2d 534, 539 (N.Y. 1958).

Thus, where governmental immunity applied as an absolute defense of liability, the
public duty rule and the special duty exception remained in abeyance. We now

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address the plaintiff’s argument that the public duty rule should be abolished in
Illinois.

¶ 43 Continued Viability of Public Duty Rule

¶ 44 Plaintiff argues that the public duty rule is the equivalent of sovereign
immunity and that the public duty rule should be abolished by this court in light of
the abrogation of sovereign immunity and passage of statutory tort immunities. In
Huey, this court stated that the public duty rule existed “[i]ndependent[ly] of
statutory or common-law concepts of sovereign immunity.” Huey, 41 Ill. 2d at 363.

¶ 45 The public duty rule is not the equivalent of any type of sovereign immunity.
While the public duty rule and sovereign immunity are both common-law concepts,
the “public duty rule” developed separately and exists independently of any
constitutional, statutory or common-law concepts of “sovereign immunity.” As
explained earlier in this opinion, state government immunity was grounded in the
English common-law doctrine of sovereign immunity, became a state
constitutional doctrine in 1870 (Ill. Const. 1870, art. IV, § 26), was constitutionally
abolished in 1970 (Ill. Const. 1970, art. XIII, § 4), and legislatively replaced by the
State Lawsuit Immunity Act (745 ILCS 5/1 (West 2014)). Supra ¶¶ 26-28. Local
governmental tort immunity of a county was first recognized in Hedges, 6 Ill. 567,
adopting the immunity doctrine of Russell, 2 Term Rep. 671, 100 Eng. Rep. 359,
and was eventually extended to other local governmental subdivisions of the State.
This court abolished governmental tort immunity for all units of local government
in Molitor, 18 Ill. 2d 11, and local governmental tort immunity was then replaced
by statutory tort immunity. Supra ¶¶ 30-34. 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. Rather, the public duty rule developed
independently and separately from concepts of governmental immunity (see supra
¶¶ 37-39) and “is grounded in the principle that the duty of the governmental entity
to ‘preserve the well-being of the community is owed to the public at large rather
than to specific members of the community.’ ” Zimmerman, 183 Ill. 2d at 32
(quoting Schaffrath, 160 Ill. App. 3d at 1003).

¶ 46 The issue of whether a duty is owed is a separate and distinct issue from
whether a defense of governmental immunity applies. This court has consistently
held that the issue of a duty is separate from the issue of immunity from liability
- 14 -
based on that duty. See Barnett v. Zion Park District, 171 Ill. 2d 378, 388 (1996)
(“[i]t is important to recognize that the existence of a duty and the existence of an
immunity are separate issues”); Zimmerman, 183 Ill. 2d at 46 (same); Village of
Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 490 (2001) (same);
Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 479-80
(2002) (same); DeSmet v. County of Rock Island, 219 Ill. 2d 497, 507 (2006). In
Zimmerman, this court explained the distinction between the concepts of duty and
statutory immunities after ratification of the 1970 Constitution:

“ ‘The judicial abrogation of sovereign immunity merely abrogated a defense to
any preexisting duty. [Citation.] *** Neither Molitor, nor any waiver of
immunity creates new tort duties and liabilities. [Citations.] Under the
inapplicable concept of sovereign immunity, despite any “apparent duty,” the
governmental entity is immune from tort liability. This does not occur from a
denial of the tort’s existence, but rather because the existing liability in tort is
disallowed. In contrast, [under the rationale of the public duty rule] the tort
liability or duty never existed. [Citations.]’ ” Zimmerman, 183 Ill. 2d at 46
(quoting Martin v. Lion Uniform Co., 180 Ill. App. 3d 955, 961-62 (1989)).

Zimmerman specifically noted that “[t]he distinction between an immunity and a
duty is crucial, because only if a duty is found is the issue of whether an immunity
or defense is available to the governmental entity considered.” Zimmerman, 183 Ill.
2d at 46. Because of this distinction between duties and immunities, “neither this
court’s decision in Molitor abolishing sovereign immunity, the General
Assembly’s passage of the Tort Immunity Act, nor the ratification of the 1970
Illinois Constitution altered the common-law public duty rule that a governmental
entity generally owes no duty to provide an individual citizen with specific
municipal services.” Zimmerman, 183 Ill. 2d at 45.

¶ 47 Plaintiff also argues, alternatively, that Doe-3 v. McLean County Unit District
No. 5 Board of Directors, 2012 IL 112479, should be read to nullify the public duty
rule implicitly because this court founded its decision on the principle that “ ‘every
person owes a duty of ordinary care to all others to guard against injuries which
naturally flow as a reasonably probable and foreseeable consequence of an act.’ ”
(Internal quotation marks omitted.) Doe-3, 2012 IL 112479, ¶ 21 (quoting Simpkins
v. CSX Transportation, Inc., 2012 IL 110662, ¶ 19). However, we did not examine
the continued viability of the public duty rule in Doe-3. Rather, the public duty rule
was “of no moment” in that case because it was not implicated by the allegations in
- 15 -
the plaintiffs’ complaint. Doe-3, 2012 IL 112479, ¶ 40. In fact, we emphasized that
our holding in Doe-3 was limited to the particular circumstances presented in that
case. Doe-3, 2012 IL 112479, ¶ 45. Accordingly, Doe-3 did not abrogate the public
duty rule or otherwise announce its demise.

¶ 48 Plaintiff also suggests that the decisions of this court in DeSmet, 219 Ill. 2d at
508-09, and Aikens v. Morris, 145 Ill. 2d 273, 278 n.1 (1991), imply that the public
duty rule may no longer have sustained viability. This court has already explicitly
and repeatedly ruled that neither the abolition of sovereign immunity nor the
legislature’s passage of statutory immunity “altered the common law public duty
rule that a governmental entity generally owes no duty to provide an individual
citizen with specific municipal services.” Zimmerman, 183 Ill. 2d at 45; Huey, 41
Ill. 2d at 363. Moreover, the continued viability of the public duty rule was not
addressed in DeSmet, or Aikens and, therefore, those cases provide no support for
abandoning the public duty rule.

¶ 49 A majority of jurisdictions continue to adhere to the public duty rule despite
abolition of sovereign immunity and passage of immunity statutes, “concluding
that, in both law and policy, the rule is sound and necessary.” Ezell, 902 S.W.2d at
399. A few jurisdictions have, however, abrogated or narrowed the application of
the public duty rule. See Adams v. State, 555 P.2d 235 (Alaska 1976) (superseded
by statute); Ryan v. State, 656 P.2d 597 (Ariz. 1982) (en banc) (superseded by
statute); Leake v. Cain, 720 P.2d 152 (Colo. 1986) (en banc) (superseded by
statute); Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010 (Fla.
1979); Jean W. v. Commonwealth, 610 N.E.2d 305 (Mass. 1993) (abrogated by
statute); Southers v. City of Farmington, 263 S.W.3d 603 (Mo. 2008); Wilson v.
Nepstad, 282 N.W.2d 664 (Iowa 1979); Maple v. City of Omaha, 384 N.W.2d 254
(Neb. 1986); Shear v. Board of County Commissioners, 1984-NMSC-079, 101
N.M. 671, 687 P.2d 728; Stewart v. Schmieder, 386 So. 2d 1351 (La. 1980)
(superseded by statute); Brennen v. City of Eugene, 591 P.2d 719 (Or. 1979);
Coffey v. City of Milwaukee, 247 N.W.2d 132 (Wis. 1976); Hopkins v. State, 702
P.2d 311 (Kan. 1985).

¶ 50 Some of those jurisdictions have revived the public duty rule via legislation
after state courts abolished it. We note that the legislatures of Alaska, Arizona,
Colorado, Massachusetts, and Louisiana have passed legislation reinstating the
public duty rule. The Florida Supreme Court subsequently retreated from its earlier
decision abrogating the public duty rule and limited its holding in Commercial
- 16 -
Carrier. See Trianon Park Condominium Ass’n v. City of Hialeah, 468 So. 2d 912,
918 (Fla. 1985). The Iowa Supreme Court has clarified that it did not abolish the
public duty doctrine, but its application has been narrowed. See Kolbe v. State, 625
N.W.2d 721, 729 (Iowa 2001) (“we have not expressly abolished the public duty
doctrine, although we have narrowed its application”); Raas v. State, 729 N.W.2d
444, 449 (Iowa 2007) (“In Kolbe we recognized that the public-duty doctrine is still
viable despite enactment of the State Tort Claims Act ***. *** [The public-duty
doctrine is] alive and well in Iowa.”). Our research has found that, currently, six
jurisdictions do not follow the public duty rule either by common law or statutorily:
Missouri, Nebraska, New Mexico, Oregon, Wisconsin, and Kansas.

¶ 51 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. We
have already rejected this argument. See Zimmerman, 183 Ill. 2d at 45; Huey, 41 Ill.
2d at 363. We reiterate: the public duty rule is not a form of sovereign immunity.
Rather, this court has been clear that “ ‘the existence of a duty and the existence of
an immunity are separate issues.’ ” Zimmerman, 183 Ill. 2d at 45 (quoting Barnett,
171 Ill. 2d at 388).

¶ 52 We have consistently held that the public duty rule survived the abolition of
sovereign immunity and passage of the Tort Immunity Act. See Zimmerman, 183
Ill. 2d at 45; Huey, 41 Ill. 2d at 363. Nevertheless, after much reflection, we have
determined that the time has come to abandon the public duty rule and its special
duty exception.

¶ 53 “Overruling a decision of this court, let alone an entire body of case law,
necessarily implicates stare decisis principles.” People v. Sharpe, 216 Ill. 2d 481,
519 (2005). As this court recognized in Sharpe:

“ ‘The doctrine of stare decisis “expresses the policy of the courts to stand
by precedents and not to disturb settled points.” Neff v. George, 364 Ill. 306,
308-09 (1939), overruled on other grounds by Tuthill v. Rendelman, 387 Ill.
321 (1944). This doctrine “is the means by which courts ensure that the law will
not merely change erratically, but will develop in a principled and intelligible
fashion.” Chicago Bar Ass’n v. Illinois State Board of Elections, 161 Ill. 2d
502, 510 (1994). Stare decisis enables both the people and the bar of this state

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“to rely upon [this court’s] decisions with assurance that they will not be lightly
overruled.” Moehle v. Chrysler Motors Corp., 93 Ill. 2d 299, 304 (1982).

To be sure, stare decisis is not an inexorable command. Chicago Bar Ass’n,
161 Ill. 2d at 510; Payne v. Tennessee, 501 U.S. 808, 842, 115 L. Ed. 2d 720,
746, 111 S. Ct. 2597, 2617 (1991) (Souter, J., concurring). However, we have
consistently held that any departure from stare decisis must be specially
justified (Chicago Bar Ass’n, 161 Ill. 2d at 510) and that prior decisions should
not be overruled absent “good cause” (Moehle, 93 Ill. 2d at 304; Heimgaertner
v. Benjamin Electric Manufacturing Co., 6 Ill. 2d 152, 166-67 (1955)) or
“compelling reasons” (Moehle, 93 Ill. 2d at 304; People v. Robinson, 187 Ill. 2d
461, 463-64 (1999)). This court also has recognized that “it will not depart from
precedent ‘merely because the court is of the opinion that it might decide
otherwise were the question a new one.’ ” Robinson, 187 Ill. 2d at 463-64,
quoting Maki v. Frelk, 40 Ill. 2d 193, 196-97 (1968) In sum, “when a rule of law
has once been settled, contravening no statute or constitutional principle, such
rule ought to be followed unless it can be shown that serious detriment is
thereby likely to arise prejudicial to public interests.” Maki, 40 Ill. 2d at 196;
see also Heidenreich v. Bremner, 260 Ill. 439, 450-51 (1913).’ ” Sharpe, 216
Ill. 2d at 519-20 (quoting Vitro v. Mihelcic, 209 Ill. 2d 76, 81-82 (2004)).

In Sharpe, this court “further noted that good cause to depart from stare decisis
exists when governing decisions are unworkable or are badly reasoned.” Sharpe,
216 Ill. 2d at 520.

¶ 54 We believe that departing from stare decisis and abandoning the public duty
rule and its special duty exception is justified for three reasons: (1) the
jurisprudence has been muddled and inconsistent in the recognition and application
of the public duty rule and its special duty exception; (2) application of the public
duty rule is incompatible with the legislature’s grant of limited immunity in cases
of willful and wanton misconduct; and (3) determination of public policy is
primarily a legislative function and the legislature’s enactment of statutory
immunities has rendered the public duty rule obsolete.

¶ 55 First, application of the public duty rule and its special duty exception has
become muddled and inconsistent. Whether a plaintiff can establish that a local
public entity owed a duty is a separate and distinct inquiry from the issue of
whether defendants can claim a statutory immunity is available as a defense.

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Therefore, “[o]nce a court determines that a duty exists, it then addresses whether
[statutory immunity] applies.” Harris v. Thompson, 2012 IL 112525, ¶ 17 (citing
Arteman, 198 Ill. 2d at 480, and Village of Bloomingdale, 196 Ill. 2d at 490). As one
court has aptly noted, “[c]onceptually, the question of the applicability of a
statutory immunity does not even arise until it is determined that a defendant
otherwise owes a duty of care to the plaintiff and thus would be liable in the
absence of such immunity.” (Internal quotation marks omitted.) Williams v. State,
664 P.2d 137, 139 (Cal. 1983). Frequently, however, this “logical sequence of
inquiry” has been overlooked and the “immunity cart has been placed before the
duty horse.” Williams, 664 P.2d at 139.

¶ 56 Even this court has addressed issues of immunity without determining whether
any duty exists. See DeSmet, 219 Ill. 2d at 509 (“[W]e assume a defendant owes a
duty, for the sake of analysis, in order to expedite the resolution of an immunity
issue.”). Obviously, a duty analysis is irrelevant where immunity applies, and the
inverse is also true: immunity is irrelevant when there is no duty in the first place.
However, putting the “immunity cart” before the “duty horse” caused applications
of these concepts to become muddled, confusing, and unduly complicated.

¶ 57 When a plaintiff’s cause of action is based solely on negligence, but application
of a statutory immunity would be dispositive, then assuming a duty is owed
expedites the resolution of the immunity issue. DeSmet, 219 Ill. 2d at 509. When a
statute immunizes a local public entity from liability for a plaintiff’s injuries, the
issue of whether the local public entity owed a duty to the plaintiff is irrelevant. See
Harinek, 181 Ill. 2d at 347 (“because we find that the [Tort Immunity] Act
immunizes the City from liability for plaintiff’s injuries, the question of whether
the fire marshal had a special duty to plaintiff is irrelevant”). When the plaintiff
claims a local public entity owed a special duty of care and the legislature has
granted immunity to the local public entity, the special duty exception to the public
duty rule cannot override statutory immunities. See Zimmerman, 183 Ill. 2d at 50;
Harinek, 181 Ill. 2d at 347. Thus, in Zimmerman, this court limited application of
the special duty exception to the public duty rule in cases where statutory
immunities were applicable to a cause of action. Accordingly, the public duty rule
and its special duty exception has proved difficult in its application when statutory
immunity or limited statutory immunity applies.

¶ 58 Second, application of the public duty rule is incompatible with the
legislature’s grant of limited immunity in cases of willful and wanton misconduct.
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The legislature has deemed it appropriate to allow recovery in cases of willful and
wanton misconduct. When the public duty rule is applied, however, a plaintiff is
precluded from pursuing a cause of action for willful and wanton misconduct, in
contravention of the clear legislative decision to allow recovery against the public
entity in certain cases involving willful and wanton misconduct. The legislative
intent is to impose liability upon public entities under circumstances of willful and
wanton misconduct. Thus, application of the public duty rule to preclude recovery
is incompatible with the legislature’s grant of limited immunity.

¶ 59 Third, the determination of public policy is primarily a legislative function and
the legislature’s enactment of statutory immunities has rendered the public duty
rule obsolete. The judicially created public duty doctrine “is based on the policy
determination that when a governmental entity assumes a duty to protect the
general public from harms such as criminal activity, holding the entity liable for a
breach of this duty would cause municipalities to be ‘mired hopelessly in civil
lawsuits ... for every infraction of the law.’ ” Cope v. Utah Valley State College,
342 P.3d 243, 249 (Utah 2014) (quoting Prosser v. Kennedy Enterprises, Inc., 179
P.3d 1178, 1183 (Mont. 2008)). Determination of public policy is, however,
primarily a legislative function. As our appellate court has aptly recognized:

“Courts are ill equipped to determine what the public policy should be. ***
Further, establishing public policy may entail the balancing of political
interests. This is a function of the legislature, not the courts.” Dixon
Distributing Co. v. Hanover Insurance Co., 244 Ill. App. 3d 837, 852 (1993).

¶ 60 Here, the public policy behind the judicially created public duty rule and its
special duty exception have largely been supplanted by the legislature’s enactment
of statutory immunities, rendering the public duty rule and its special duty
exception obsolete.

¶ 61 For these reasons, we conclude that the underlying purposes of the public duty
rule are better served by application of conventional tort principles and the
immunity protection afforded 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. Accordingly, we
hereby abolish the public duty rule and its special duty exception. Therefore, in
cases where the legislature has not provided immunity for certain governmental
activities, traditional tort principles apply. Obviously, if the legislature determines

- 20 -
that the public policy requires, it may codify the public duty rule, but we defer to
the legislature in determining public policy. Supra ¶ 59.

¶ 62 Accordingly, we reverse and remand this cause to the circuit court for a
determination of whether defendants may be held liable for willful and wanton
conduct as alleged in the complaint.

¶ 63 CONCLUSION

¶ 64 We abolish the public duty rule and its special duty exception. We reverse the
judgments of the appellate court and circuit court of Will County, and remand the
cause to the circuit court of Will County for further proceedings.

¶ 65 Reversed and remanded.

¶ 66 JUSTICE FREEMAN, specially concurring:

¶ 67 I agree that the time has come for this court to abandon the public duty rule and
its special duty exception. Accordingly, I concur in today’s judgment. However, I
do so for reasons that differ from those set forth in the lead opinion and that I have
expressed in two previous decisions.

¶ 68 As I explained in Calloway v. Kinkelaar, the public duty rule is rooted in the
earliest notions of sovereign immunity. Calloway v. Kinkelaar, 168 Ill. 2d 312, 334
(1995) (Freeman, J., specially concurring) (citing Burdinie v. Village of Glendale
Heights, 139 Ill. 2d 501, 506-07 (1990), and 63 C.J.S. Municipal Corporations
§ 747 (1950)). When the 1970 Constitution was ratified, article XIII, section 4,
abolished all forms of governmental immunity, except where provided for by
legislative action. Id. at 336. In light of that constitutional provision, the judiciary’s
power to apply the public duty doctrine ceased to exist as a means of assessing
municipal tort liability. Id. Accordingly, Illinois courts are required to view “issues
of governmental tort liability—not just immunity—through the prism of existing
legislation.” Id. at 337 (citing Henderson v. Foster, 59 Ill. 2d 343, 349 (1974)). I
repeated these views in Doe-3 v. McLean County Unit District No. 5 Board of

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Directors, 2012 IL 112479, ¶¶ 58, 60 (Freeman, J., specially concurring), and
continue to adhere to them today.

¶ 69 The lead opinion maintains that the public duty rule developed separately and
exists independently of the concept of sovereign immunity. Supra ¶¶ 44-45, 49, 51
(citing Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 45 (1998), quoting Huey v.
Town of Cicero, 41 Ill. 2d 361, 363 (1968)). From this premise, the lead opinion
concludes that the abolition of sovereign immunity and the enactment of the Tort
Immunity Act did not affect the viability of the public duty rule. Supra ¶ 52 (citing
Zimmerman, 183 Ill. 2d at 45). I cannot concur in this conclusion.

¶ 70 In my view, the doctrine of sovereign immunity and the public duty rule are
predicated on exactly the same concern—the notion that when a municipality
performs a governmental function, the service is provided to protect the general
welfare of the public. This fact is demonstrated by two of our earliest cases
involving application of the doctrine of sovereign immunity to municipalities. In
Culver v. City of Streator, 130 Ill. 238 (1889), and Roumbos v. City of Chicago, 332
Ill. 70 (1928), this court specifically recognized that a municipality was immune
from tort liability when exercising a governmental function for the benefit of the
public and the general welfare. Roumbos, 332 Ill. at 75, 80; Culver, 130 Ill. at
242-43, 245. It was recognized that, in securing the safety, health, and welfare of
the public, a municipality is engaged in the performance of a public duty and is not
liable for injuries caused in the performance of such duties. Roumbos, 332 Ill. at 82.
Therefore, when acting in its governmental capacity to preserve the interest of the
general public, a municipality represents the sovereignty of the state and is subject
to suit only to the extent determined by the legislature. Id. at 77-78. Thus, the public
duty rule has always been predicated on the very same basis as the concepts
underlying local governmental immunity.

¶ 71 In addition, the public duty rule is derived from the notion that a municipality
cannot be held civilly liable for failure to perform a duty owed to the general public.
See supra ¶¶ 39-40 (citing South v. Maryland, 59 U.S. 396, 403 (1855) (holding
that a breach of a public duty is punishable by indictment only), Thomas M.
Cooley, A Treatise on the Law of Torts or the Wrongs Which Arise Independent of
Contract 379 (1880) (recognizing that a breach of a public duty can be redressed, if
at all, in some form of public prosecution)). As such, it unquestionably is a rule of
nonliability for civil damages, which is, at its core, the fundamental basis for
sovereign immunity. Indeed, this court has previously characterized it in exactly
- 22 -
that way. DeSmet v. County of Rock Island, 219 Ill. 2d 497, 506 (2006);
Zimmerman, 183 Ill. 2d at 32, 44.

¶ 72 When viewed in the proper historical context, it is clear that the public duty rule
is firmly rooted in the concept of sovereign immunity. This court has recognized as
much by observing that, with respect to certain governmental services, the public
duty rule was incorporated and codified in the Tort Immunity Act. Harris, 2012 IL
112525, ¶ 17; DeSmet, 219 Ill. 2d at 508-09; Aikens v. Morris, 145 Ill. 2d 273, 278
n.1 (1991). Moreover, this court has held that “the tort liability” of a local
governmental entity or its employee is “expressly controlled by the constitutional
provision and by legislative prerogative as embodied in the Tort Immunity Act.”
Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 489 (2001);
Zimmerman, 183 Ill. 2d at 44; Burdinie, 139 Ill. 2d at 507.

¶ 73 By enacting the Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 2012)),
Illinois adopted the general principle that local governmental units are liable in tort,
but limited this liability with an extensive list of immunities based on specific
government functions. Harris, 2012 IL 112525, ¶ 16 (citing Village of
Bloomingdale, 196 Ill. 2d at 489; Barnett v. Zion Park District, 171 Ill. 2d 378,
385-86 (1996)). In addition, article XIII, section 4, of the 1970 Illinois Constitution
provides that “[e]xcept as the General Assembly may provide by law, sovereign
immunity in this State is abolished.” Ill. Const. 1970, art. XIII, § 4. This
constitutional provision “ ‘now makes the General Assembly the ultimate authority
in determining whether local units of government are immune from liability.’ ”
Harris, 2012 IL 112525, ¶ 16 (quoting DeSmet, 219 Ill. 2d at 506). As a result,
“ ‘governmental units are liable in tort on the same basis as private tortfeasors
unless a tort immunity statute imposes conditions upon that liability.’ ” Harris,
2012 IL 112525, ¶ 16 (quoting In re Chicago Flood Litigation, 176 Ill. 2d 179, 192
(1997)).

¶ 74 Our constitutional provision abolishing sovereign immunity and the passage of
various statutes providing for certain immunities with regard to official conduct of
local governmental entities constitutes a comprehensive scheme for balancing the
private and public interests at stake in assessing municipal tort liability. Scrupulous
application of the immunity statutes enacted by the General Assembly is the best
way to achieve and maintain that balance.

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¶ 75 The lead opinion cites three reasons to explain why the public duty rule must be
abolished. While I have no specific quarrel with any of those reasons, I believe that
the analysis set forth above mandates the same conclusion and provides a more
compelling justification.

¶ 76 As a final point, I agree with the observation that the legislature is free to enact
a statute that codifies the public duty rule. This approach makes perfect sense and,
in my view, is the only proper means of resolving the tension between the judicially
created public duty rule and the constitutional abrogation of sovereign immunity.
Enactment of a statute that incorporates the substance of the rule would put all of
the pieces of the puzzle in the right place—as a legislative recognition that the
public duty rule is a vestige of sovereign immunity that the General Assembly has
elected to provide by law.

¶ 77 In sum, I agree that the public duty rule and its special duty exception must be
abolished, though I do so for reasons that differ from those expressed in the lead
opinion. I also agree that where the legislature has not provided immunity for
certain governmental activities, traditional tort principles apply in deciding the
potential liability of municipal defendants. Finally, because the public duty rule is
obsolete, I concur that the judgments of the circuit and appellate courts in this case
must be reversed and the cause must be remanded for further proceedings.

¶ 78 JUSTICE THEIS joins in this special concurrence.

¶ 79 JUSTICE THOMAS, dissenting:

¶ 80 Almost 20 years ago, this court held expressly that, “[d]espite abolishing
common law sovereign immunity in Molitor, this court has nevertheless retained
the public duty rule.” Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill.
2d 335, 345 (1998). Later that same year, this court explained that, because “the
public duty rule exists ‘[i]ndependent[ly] of statutory or common-law concepts of
sovereign immunity’ *** neither this court’s decision in Molitor abolishing
sovereign immunity, the General Assembly’s passage of the Tort Immunity Act,
nor the ratification of the 1970 Illinois Constitution altered the common law public
duty rule that a governmental entity generally owes no duty to provide an
individual citizen with specific municipal services.” (Emphasis omitted.)
Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 45 (1998) (quoting Huey v. Town of

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Cicero, 41 Ill. 2d 361, 363 (1968)). Today the court abandons these well-settled
principles and abolishes the public duty rule. Justice Kilbride chooses this course
because he is convinced that “serious detriment is *** likely to arise prejudicial to
public interests” if a principle established in 1968 and reaffirmed in 1998 remains
on the books even one more day. (Internal quotation marks omitted.) Supra ¶ 53.
The concurring justices, by contrast, choose this course simply because they reach
conclusions different from those reached in these earlier decisions. Neither of these
positions is defensible, and both make a mockery of stare decisis. Accordingly, I
dissent.

¶ 81 Justice Kilbride’s View

¶ 82 At the outset, it is worth emphasizing that what is published today as the court’s
“lead opinion” in this case is actually an analysis that five members of this court
expressly disavow. Indeed, though the two concurring justices agree with Justice
Kilbride’s conclusion that the public duty rule should be abolished, they do so “for
reasons that differ from those expressed in the lead opinion.” Supra ¶¶ 67, 77. And
of course we in the dissent do not reject just Justice Kilbride’s analysis; we reject
his conclusion, too. Thus, though it appears first under the caption and therefore
might appear to the undiscerning reader to speak for the court, Justice Kilbride’s
analysis in fact garners less support than even this dissent. That analysis therefore
should not be confused with or construed as a majority position in this case.

¶ 83 That said, Justice Kilbride’s analysis starts in the right place, with an express
acknowledgment that this court has “consistently held that the public duty rule
survived the abolition of sovereign immunity and passage of the Tort Immunity
Act.” Supra ¶ 52. Indeed, with both certitude and precision, Justice Kilbride
reminds us that “the public duty rule is not a form of sovereign immunity” and that
this court has “already rejected” the argument that the public duty rule “[is] nothing
more than a continuation of sovereign immunity and should not exist when
sovereign immunity had been abolished.” (Emphasis added.) Id. ¶ 51. And this is
so, Justice Kilbride explains, because “ ‘ “the existence of a duty and the existence
of an immunity are separate issues.” ’ ” Id. (quoting Zimmerman, 183 Ill. 2d at 45,
quoting Barnett v. Zion Park District, 171 Ill. 2d 378, 388 (1996)). I
wholeheartedly agree with all of this, and if Justice Kilbride had just stopped here, I
happily would have joined his opinion.

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¶ 84 Unfortunately, Justice Kilbride does not stop there. Instead, “after much
reflection,” he ultimately concludes that “departing from stare decisis and
abandoning the public duty rule and its special duty exception is justified for three
reasons.” Supra ¶¶ 52, 54. Now one would think that these reasons would be
manifestly compelling, as Justice Kilbride himself characterizes the public duty
rule as “long-standing” (id. ¶¶ 38, 42) and concedes that “when a rule of law has
once been settled, contravening no statute or constitutional principle, such rule
ought to be followed unless it can be shown that serious detriment is thereby likely
to arise prejudicial to public interests.” (Internal quotation marks omitted.) Id. ¶ 53.
But they are 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.

¶ 85 The first “reason” that Justice Kilbride gives for departing from stare decisis
and abandoning the long-standing public duty rule is that application of the rule has
become “muddled and inconsistent” (id. ¶ 54), a point Justice Kilbride bolsters
primarily with a 1983 decision from the California Supreme Court (id. ¶ 55). Now
how exactly an observation made in California some 15 years before Zimmerman
serves to prove that a principle settled in Zimmerman has become “muddled and
inconsistent” is never made clear. Nor could it be made clear, as the quoted portion
of the California Supreme Court decision hardly evinces a jurisprudence run amok.
On the contrary, it merely makes the unremarkable observation that in some public
duty cases, and for reasons of judicial expediency, courts will dispose of the matter
on immunity grounds rather than on duty grounds. Analytical triage of this sort is
standard practice in appellate review, and something this court routinely wields in a
wide variety of contexts. See, e.g., Schultz v. Performance Lighting, Inc., 2013 IL
115738, ¶ 33 (“We need not address the question of whether these amendments
could be applied retroactively to the case at bar because we find that even assuming
that the amendments can be applied prospectively only as plaintiff suggests, they
would then merely indicate a presumption that the legislature has changed the law
from not requiring any action from the employer faced with an invalid notice to
now requiring the employer to respond with its reason for noncompliance, but only
provided that the obligee first gives notice of the non-receipt of payment.”); Village
of Mundelein v. Wisconsin Central R.R., 227 Ill. 2d 281, 299 (2008) (“We need not
decide that issue, however, because we conclude that even if the ordinance is
treated as a state statute, the saving clause does not apply.”); Bridges v. State Board
of Elections, 222 Ill. 2d 482, 490 (2006) (“We need not decide this disagreement,

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because even if Public Act 93–541 created additional judgeships, Public Act
94–727 clearly eliminated them ***.”); People v. Williams, 193 Ill. 2d 1, 22 (2000)
(“we need not decide which view to adopt because even if we accept that there may
be instances in which collateral statements should be admitted, this is not such a
case”); In re A.P., 179 Ill. 2d 184, 203 (1997) (“We need not decide whether the
confrontation clause requirements must be satisfied in this noncriminal setting
because, even if those requirements applied, we would find them to be satisfied.”);
People v. Holman, 132 Ill. 2d 128, 152 (1989) (“We need not address these
arguments, however, as we find that even if evidence of the adjudication was
improperly admitted, its admission was harmless.”); People v. Harris, 129 Ill. 2d
123, 165 (1989) (“We need not address the question raised in defendant’s petition
for rehearing, however, because even if we assume without deciding that
defendant’s claim has not been waived, defendant would not prevail on the merits
of his claim.”); Edwards v. Industrial Comm’n, 96 Ill. 2d 221, 227 (1983) (“we
need not decide whether the report was properly admitted, because even if it was
inadmissible, the Commission’s decision is adequately supported by the manifest
weight of the other evidence in the record”); In re Marriage of Olson, 96 Ill. 2d
432, 440 (1983) (“We need not decide whether Kenneth proves sufficient
contributions to raise the presumption of transmutation because we find that even if
such a presumption were raised, Geraldine successfully rebutted any presumption
that a gift of the house to the marital estate was intended.”). Suffice it to say, if such
practice renders each of these bodies of law “muddled and inconsistent” to such a
degree that the protections of stare decisis no longer operate, then the common law
of Illinois sits on the verge of wholesale collapse. Thankfully, this is not the case, as
nothing about our routine “even if” approach to decisionmaking injects confusion
into the law, and therefore nothing about it justifies a departure from stare decisis.

¶ 86 The second “reason” that Justice Kilbride gives for departing from stare decisis
and abandoning the long-standing public duty rule is that “the public duty rule is
incompatible with the legislature’s grant of limited immunity in cases of willful and
wanton misconduct.” Supra ¶ 58. According to Justice Kilbride:

“The legislature has deemed it appropriate to allow recovery in cases of willful
and wanton misconduct. When the public duty rule is applied, however, a
plaintiff is precluded from pursuing a cause of action for willful and wanton
misconduct, in contravention of the clear legislative decision to allow recovery
against the public entity in certain cases involving willful and wanton
misconduct. The legislative intent is to impose liability upon public entities
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under circumstances of willful and wanton misconduct. Thus, application of the
public duty rule to preclude recovery is incompatible with the legislature’s
grant of limited immunity.” Id.

There are two problems with Justice Kilbride’s reasoning here. First, this court has
explained that “a court will detour from the straight path of stare decisis only for
articulable reasons, and only when the court must bring its decisions into
agreement with experience and newly ascertained facts.” (Emphasis added.)
Chicago Bar Ass’n v. Illinois State Board of Elections, 161 Ill. 2d 502, 510 (1994).
As Justice Kilbride well knows, there is absolutely nothing “new” about “the
legislature’s grant of limited immunity in cases of willful and wanton misconduct.”
On the contrary, the Tort Immunity Act has provided as much since its passage in
1965 (see Ill. Rev. Stat. 1965, ch. 85, ¶ 2-202), the Emergency Telephone System
Act since has provided as much since its passage in 1975 (see Ill. Rev. Stat. 1977,
ch. 134, ¶ 45.1), and the Emergency Medical Services (EMS) Systems Act has
provided as much since its passage in 1995 (see 210 ILCS 50/3.150 (West 1996)).
And significantly, each of these legislative acts precedes Harinek’s express
affirmation that this court “has *** retained the public duty rule.” Harinek, 181 Ill.
2d at 345. Now, what exactly constitutes a “newly ascertained fact” sufficient to
justify a departure from stare decisis is an open question and probably cannot be
answered ahead of time for all cases. But certainly, we can all agree that whatever a
“newly ascertained fact” includes, it does not include legislative action that
precedes the decision at issue by decades.

¶ 87 The second problem with Justice Kilbride’s invocation of the statutory
exceptions for willful and wanton conduct is that, even if those exceptions did
constitute “newly ascertained facts,” those exceptions would still remain wholly
irrelevant. The statutory exceptions for willful and wanton conduct are exceptions
from statutory grants of immunity. But as Justice Kilbride repeatedly reminds us,
“[t]he issue of whether a duty is owed is a separate and distinct issue from whether
a defense of governmental immunity applies.” Supra ¶ 46. As Justice Kilbride ably
explains:

“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.
Rather, the public duty rule developed independently and separately from
concepts of governmental immunity [citation] and ‘is grounded in the principle
that the duty of the governmental entity to “preserve the well-being of the
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community is owed to the public at large rather than to specific members of the
community.” ’ ” Supra ¶ 45 (quoting Zimmerman, 183 Ill. 2d at 32, quoting
Schaffrath, 160 Ill. App. 3d at 1003).

In other words, under the public duty rule, a government entity owes no duty to
begin with. This being the case, a legislative exception to a provision of statutory
immunity is of no consequence, as absent a duty there can be no liability in the first
place and thus nothing to be immunized from. This court recognized this expressly
in Harinek when we said that “although, absent a statutory immunity,
governmental units are now liable in tort on the same basis as private tortfeasors,
the public duty rule nevertheless prevents such units from being held liable for their
failure to provide adequate governmental services.” (Emphasis added.) Harinek,
181 Ill. 2d at 345. If the public duty rule precludes liability wholly absent a
statutory immunity, then it likewise precludes liability when such immunity is
granted but then limited.

¶ 88 Justice Kilbride’s third “reason” for departing from stare decisis and
abandoning the long standing public duty rule is that “the determination of public
policy is primarily a legislative function and the legislature’s enactment of statutory
immunities has rendered the public duty rule obsolete.” Supra ¶ 59. Of course, this
is just another way of saying that the public duty rule did not survive the passage of
the Tort Immunity Act. But the problem with this, as Justice Kilbride himself
concedes, is that this court has “consistently held that the public duty rule survived
the abolition of sovereign immunity and passage of the Tort Immunity Act.” Id.
¶ 52. And as for why this court has “consistently held” this, no one could possibly
explain it better than Justice Kilbride does:

“The issue of whether a duty is owed is a separate and distinct issue from
whether a defense of governmental immunity applies. This court has
consistently held that the issue of a duty is separate from the issue of immunity
from liability based on that duty. [Citations.] In Zimmerman, this court
explained the distinction between the concepts of duty and statutory immunities
after ratification of the 1970 Constitution:

‘ “The judicial abrogation of sovereign immunity merely abrogated a
defense to any preexisting duty. [Citation.] *** Neither Molitor, nor any
waiver of immunity creates new tort duties and liabilities. [Citations.]
Under the inapplicable concept of sovereign immunity, despite any

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‘apparent duty,’ the governmental entity is immune from tort liability. This
does not occur from a denial of the tort’s existence, but rather because the
existing liability in tort is disallowed. In contrast, [under the rationale of the
public duty rule] the tort liability or duty never existed. [Citations.]” ’
Zimmerman, 183 Ill. 2d at 46 (quoting Martin v. Lion Uniform Co., 180 Ill.
App. 3d 955, 961-62 (1989)).

Zimmerman specifically noted that ‘[t]he distinction between an immunity and
a duty is crucial, because only if a duty is found is the issue of whether an
immunity or defense is available to the governmental entity considered.’
Zimmerman, 183 Ill. 2d at 46. Because of this distinction between duties and
immunities, ‘neither this court’s decision in Molitor abolishing sovereign
immunity, the General Assembly’s passage of the Tort Immunity Act, nor the
ratification of the 1970 Illinois Constitution altered the common-law public
duty rule that a governmental entity generally owes no duty to provide an
individual citizen with specific municipal services.’ Zimmerman, 183 Ill. 2d at
45.” Id. ¶ 46.

Thus, it is not just that this court has “consistently held” that the public duty rule
survived passage of the Tort Immunity Act. Rather, this court also has consistently
explained that the reason for this holding is that the public duty rule and the Tort
Immunity Act have nothing to do with each other. There is absolutely nothing,
then, about the “the legislature’s enactment of statutory immunities” that renders
the public duty rule obsolete.

¶ 89 As importantly, even if the “the legislature’s enactment of statutory
immunities” did somehow implicate the public duty rule, such legislative action is
not a recent innovation, and it therefore cannot justify a departure from this court’s
consistent holding that the public duty rule has survived such action. Huey was
decided in 1968, and it was in 1998 that Harinek expressly stated that “this court
has *** retained the public duty rule.” Harinek, 181 Ill. 2d at 345. How can
legislative action that in one case predates even Huey and in all cases precedes
Harinek possibly serve as a basis for overruling those cases in 2015? It cannot, and
Justice Kilbride understandably makes no attempt to explain how it can. It is not
enough simply to assert as a basis for departing from stare decisis propositions that
this court has previously considered and “consistently” rejected. Nor is it enough to
cite facts of which the court has been fully aware for half a century, as if those facts
were new. The bottom line is that absolutely nothing has changed since this court’s
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decisions in Huey, Harinek, and Zimmerman, and consequently nothing justifies a
departure from stare decisis as to the principles those cases establish.

¶ 90 To summarize, then, the compelling new reasons that Justice Kilbride gives for
departing from stare decisis and abandoning the long-standing public duty rule are
that (1) the rule lends itself to the use of a common analytical tool, and (2) the rule
is incompatible with statutory provisions that have been on the books for decades
and that this court has repeatedly held have nothing to do with the public duty rule.
Neither of these reasons is credible, let alone convincing. And this matters, because
the importance of stare decisis is that it “permits society to presume that
fundamental principles are established in the law rather than in the proclivities of
individuals.” Chicago Bar Ass’n, 161 Ill. 2d at 510. That being the case, if the
reasons proffered by Justice Kilbride are sufficient to justify a departure from stare
decisis in this case, then we may as well abandon the stare decisis doctrine
altogether. Because if they are good enough, then anything is good enough and we
need not waste our time going through the motions of what will essentially have
become a hollow exercise.

¶ 91 The Concurring Justices

¶ 92 If Justice Kilbride’s stare decisis discussion is unconvincing, at least it has the
benefit of existing, which cannot be said of the concurring justices’ discussion.
Indeed, the concurring justices reach conclusions wholly contrary to settled
precedent of this court without even mentioning the stare decisis doctrine, let alone
applying it.

¶ 93 At one point, the concurring justices assert that they “cannot concur” in the
conclusion that “the abolition of sovereign immunity and the enactment of the Tort
Immunity Act did not affect the viability of the public duty rule.” Supra ¶ 69. At
another point, they assert that “the public duty has always been predicated on the
very same basis as the concepts underlying local governmental immunity,” such
that “it is clear that the public duty rule is firmly rooted in the concept of sovereign
immunity.” Id. ¶¶ 70, 72. With respect to my concurring colleagues, these are not
matters for them to decide, as previous courts have spoken directly to these matters
and reached entirely different conclusions. Again, Zimmerman states expressly that
“neither this court’s decision in Molitor abolishing sovereign immunity, the
General Assembly’s passage of the Tort Immunity Act, nor the ratification of the
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1970 Illinois Constitution altered the common law public duty rule that a
governmental entity generally owes no duty to provide an individual citizen with
specific municipal services.” Zimmerman, 183 Ill. 2d at 45. And the reason for this
holding was the court’s prior determination in Huey that “[the public duty] rule
existed ‘[i]ndependent[ly] of statutory or common-law concepts of sovereign
immunity.’ ” (Emphasis omitted.) Id. (quoting Huey, 41 Ill. 2d at 363). Now I
understand that the concurring justices might strongly disagree with these
conclusions and therefore wish that they had been on the court when Huey and
Zimmerman were decided so as to speak to those decisions. But that ship has sailed,
and that is not how our system works. Indeed, this court has been emphatic that
“stare decisis *** ‘expresses the policy of the courts to stand by precedents and to
not disturb settled points’ ” (People v. Caballes, 221 Ill. 2d 282, 313 (2006)
(quoting Neff v. George, 364 Ill. 306, 308-09 (1936))), and therefore we “will not
depart from precedent ‘merely because the court is of the opinion that it might
decide otherwise were the question a new one.’ ” People v. Robinson, 187 Ill. 2d
461, 464 (1999) (quoting Maki v. Frelk, 40 Ill. 2d 193, 196-97 (1968)). Yet that is
precisely what the concurring justices are doing here.

¶ 94 In his dissent in People v. Mitchell, 189 Ill. 2d 312 (2000), Justice Freeman
spoke passionately in defense of the stare decisis doctrine. I will quote at length
from that dissent, with minor modification, as I am convinced that Justice Freeman
makes the best case possible in opposition to the court’s action today:

“Today’s result sends the unfortunate message to the bench, the bar, and the
public that ‘this court does not decide issues based on the law, but based instead
on who happens to be sitting on the court at a particular time.’ People v. Lewis,
88 Ill. 2d 129, 170 (1981) (Clark, J., concurring). ***

***

As I have endeavored to show by my review of our precedent, not one
circumstance has changed in our [public duty rule] jurisprudence since this
court announced its decision in [Zimmerman]. All of the legal arguments set
forth in today’s opinion are the same arguments that were made and considered
at the time [Huey and Zimmerman] were decided. *** The only ‘circumstance’
that has changed since this court announced [Zimmerman] is that [Justices
Kilbride, Burke, and Theis have since joined the court]. I submit that this type

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of ‘circumstance’ does not rise to the level necessary to overturn the doctrine of
stare decisis.

Unfortunately, today’s decision demonstrates that ‘[p]ower, not reason, is
the new currency of this [c]ourt’s decisionmaking.’ Payne v. Tennessee, 501
U.S. 808, 844, 115 L. Ed. 2d 720, 748, 111 S. Ct. 2597, 2619 (1991) (Marshall,
J., dissenting, joined by Blackmun, J.). As noted throughout this dissent, neither
the law nor the facts supporting the [public duty rule] underwent any change
since the time that this court issued its last [public duty rule] case,
[Zimmerman], in 1998. Only the personnel of this court did. One must now
wonder how many other of our previous decisions *** will be similarly
overruled on the basis of a change in court personnel. *** If this court can so
cavalierly disregard its own precedent, we surely cannot expect others to follow
it nor can we justly criticize those who do not. Today’s imprudent action invites
nothing but open defiance of our precedent and seriously undermines this
court’s legitimacy. Clearly, there is no genuine reason not to apply [the public
duty rule] to the present case, and the court’s attempt to style its decision as one
made to [“resolv[e] the tension between the judicially created public duty rule
and the constitutional abrogation of sovereign immunity” (supra ¶ 76)] is
beyond credulity. It is obvious to me, at least, that four members of this court
are willing to discard any principle of *** law that, in the past, was recognized
*** and with which four justices currently disagree. This does not bode well for
the future. *** It is my sincere hope that this case will not serve as a model for
future courts to follow.” Mitchell, 189 Ill. 2d at 396-99 (Freeman, J., dissenting,
joined by Harrison, C.J., and McMorrow, J.).

¶ 95 Conclusion

¶ 96 This court has held that the public duty rule survived the abolition of sovereign
immunity and passage of the Tort Immunity Act. See Zimmerman, 183 Ill. 2d at 45;
Huey, 41 Ill. 2d at 363. A question once deliberately examined and decided should
be considered as settled and closed to further argument unless compelling reasons
require it. Wakulich v. Mraz, 203 Ill. 2d 223, 230-31 (2003). The doctrine of stare
decisis is fundamental to our legal system and “reflects the policy of the courts ‘to
stand by precedents and not to disturb settled points.’ ” (Internal quotation marks
omitted.) Id. at 230 (quoting Zimmerman, 183 Ill. 2d at 47). This court has

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examined and applied the public duty rule since abolition of sovereign immunity
and passage of statutory immunities and the continued viability of the public duty
rule is settled law of this state. I find no compelling legal rationale to overrule this
precedent and abolish the public duty rule.

¶ 97 Moreover, I agree with those courts that have identified valid policy
considerations that warrant continued judicial application of the public duty rule.
The public duty rule “serves the important purpose of preventing excessive court
intervention into the governmental process by protecting the exercise of law
enforcement discretion.” Ezell v. Cockrell, 902 S.W.2d 394, 400-01 (Tenn. 1995).
For example, when a local public entity lacks sufficient resources to meet every
need of its community, police, fire, rescue ambulance, and other emergency
responders “must be able to prioritize and create responses without the benefit of
hindsight.” Sawicki v. Village of Ottawa Hills, 525 N.E.2d 468, 477 (Ohio 1988).
Emergency first responders must often react in the midst of unfolding emergency
situations when every decision they make is fraught with uncertainty and their own
safety may be at risk. See Morgan v. District of Columbia, 468 A.2d 1306, 1311
(D.C. 1983). Indeed, the facts of this case illustrate the continuing need for the
public duty rule. Here, the dispatch centers were so overwhelmed with emergency
calls following a natural disaster that the community could not meet the demand for
police, fire, ambulance, rescue, and other emergency first responders to the tornado
disaster such that mutual aid from surrounding communities was required. 5
Defendants’ duty in responding to 911 calls for medical and disaster related
emergencies required balancing the needs of the entire community. Under
circumstances such as a mass disaster, local public entities must have the flexibility

5
Justice Kilbride conveniently and conspicuously omits from his opinion the highly relevant
fact that, at the precise time Coretta called the Will County 911 operator, this portion of Illinois was
in the midst of a major tornado outbreak and disaster event. Eight tornadoes occurred that Saturday
afternoon and evening over northeast Illinois. Between 5:18 p.m. and 6:30 p.m., four EF2 tornadoes
struck Will County, causing injuries and widespread damage and destruction. The first EF2 tornado
struck Kankakee and Will Counties, beginning at 5:18 p m. and ending at 5:46 p.m., with a path
length of 13.6 miles. This first tornado snapped and uprooted trees, blew down power lines, and
caused extensive damage to homes and buildings. A second EF2 tornado struck Will County from
5:51 p.m. to 5:55 p.m., with a path length of 1.8 miles. The second tornado occurred in an open area
with few trees and structures and a few buildings were damaged or destroyed. A third EF2 tornado
struck Will County from 5:55p m. to 6:08 p.m., with a path length of 3.7 miles. This third tornado
caused extensive tree damage, downed power lines, and extensive damage and destruction to homes
and other buildings. Coretta’s call to 911 came in at 6:10 p m.

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to prioritize and respond to community emergencies without having their judgment
questioned.

¶ 98 Additionally, “[t]he public duty doctrine is based on the policy determination
that when a governmental entity assumes a duty to protect the general public from
harms such as criminal activity, holding the entity liable for a breach of this duty
would cause municipalities to be ‘mired hopelessly in civil lawsuits ... for every
infraction of the law.’ ” Cope v. Utah Valley State College, 342 P.3d 243, 248
(Utah 2014) (quoting Prosser v. Kennedy Enterprises, Inc., 179 P.3d 1178, 1183
(Mont. 2008)). Local public entities often provide needed services for their
communities where the risk of potential liability to individuals would discourage
local public entities from providing those services.

¶ 99 For all of these reasons, this court should affirm what is true—that the public
duty rule and the special duty exception to the public duty rule remain viable in
Illinois. The issue of whether a local public entity owes a duty is a wholly distinct
and separate inquiry from the issue of whether immunity is available as a defense to
tort liability. For these reasons, I dissent from the court’s judgment today and
would affirm the judgments of the appellate court and circuit court of Will County.

¶ 100 CHIEF JUSTICE GARMAN and JUSTICE KARMEIER join in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3171554. Public record. Not legal advice.