swimming instructor did not exercise direct and immediate control when he directed the plaintiff to jump into the pool; the plaintiff voluntarily joined the class and initiated the contact with the municipality by enrolling in the class
How later courts described this case
- swimming instructor did not exercise direct and immediate control when he directed the plaintiff to jump into the pool; the plaintiff voluntarily joined the class and initiated the contact with the municipality by enrolling in the class
- plaintiff voluntarily joined the swimming class where he was injured
- and authorities cited therein
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by McCuen v. Peoria Park District, 163 Ill. 2d 125 (1994)
139 Ill. 2d 501, 509 (1990), overruled on other grounds in McCuen v. Peoria Park District, 163 Ill. 2d 125
Overruled on other grounds by Coleman v. East Joliet Fire Protection District, 2016 IL 117952 (2016)
139 Ill. 2d 501, 507-08 (1990) (citing Ill. Rev. Stat. 1989, ch. 85, ¶ 2-103), overruled on other grounds by Coleman, 2016 IL 117952
The opinion
JUSTICE MILLER, specially concurring:
Although I concur in the result reached by the court in the present case, I do not entirely agree with the majority’s analysis, and for that reason I write separately.
In Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 363 , the court cited the general rule, which exists “[i]ndependentfly] of statutory or common-law concepts of sovereign immunity,” that “a municipality or its employees is not liable for failure to supply general police or fire protection.” Huey further noted that the only exceptions to the rule of nonliability have been found in cases in which public officers or their agents owed a special duty of care to a particular person. Apart from the implication that the special duty doctrine has an independent source in the law, the Huey court did not further elaborate on the relationship between that doctrine and principles of statutory or common law tort immunity.
In the present appeal, the court rejects the plaintiffs contention that the agents of the Village of Glendale Heights owed him a special duty. Although the court suggests that the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, pars. 1 — 101 through 9 — 107) alone governs the case at bar (139 Ill. 2d at 510-11), the majority opinion ultimately leaves that question unresolved. In disposing of the plaintiffs contention that he is the beneficiary of a special duty, the majority eventually turns to the four-part test that the appellate court formulated in Bell v. Village of Midlothian (1980), 90 Ill. App. 3d 967, 970 , and that the appellate court has followed in numerous subsequent decisions. It is not entirely clear from the majority opinion, however, whether this court is now adopting the Bell test as its own, or whether the court is instead merely applying Bell for the sake of analysis.
The plaintiff contends that the Bell test does not accurately define the circumstances that will give rise to a special duty and thus sustain a tort action against an otherwise immune agent or unit of local government. The plaintiff believes that the fourth element of the test — occurrence of the injury “while the plaintiff is under the direct and immediate control of employees or agents of the municipality” (Bell, 90 Ill. App. 3d at 970 ) — should not be required. For its part, the village contends that the special duty exception may arise only in instances involving fire or police protection and that the doctrine simply does not extend to other activities.
We need not determine in the present case the precise contours of the special duty exception, for the immunity granted by the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, pars. 1 — 101 through 9 — 107) provides a sufficient answer to the plaintiff’s claim. As the majority opinion demonstrates, the Act speaks to municipal liability for water activities, among other things, and the relevant provisions clearly confer immunity in the circumstances alleged in the instant appeal. Accordingly, I would leave to future cases the tasks of defining the special duty doctrine and the relationship between it and the Tort Immunity Act, and would not undertake an analysis of those issues here, where the question presented is resolved by statute.