holding that “[w]here an enactment is clear and unambiguous,” a court is “not at liberty to depart from the plain language and meaning of the statute by reading into it exceptions, limitations or conditions that the legislature did not express”
How later courts described this case
- holding that “[w]here an enactment is clear and unambiguous,” a court is “not at liberty to depart from the plain language and meaning of the statute by reading into it exceptions, limitations or conditions that the legislature did not express”
- stating that conduct reaches that level where “recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ” (Internal quotation marks omitted.)
- noting that “Doe is a fact-specific application of section 2 — 202 that bears some striking similarities to an application of the special duty exception to the public duty rule,” which requires that the offending conduct occur when the plaintiff is under the direct and immediate control of the defendant police officer, and finding that section 2 — 202 did not operate in that case as an exception to section 4 — 102 because the DeSmet defendants did not execute control over the plaintiff
- noting that ADoe is a fact-specific application of section 2-202 that bears some striking similarities to an application of the special duty exception to the public duty rule,@ which requires that the offending conduct occurs when the plaintiff is under the direct and immediate control of the defendant police officer, and finding that section 2-202 did not operate in that case as an exception to section 4- 102 because the DeSmet defendants did not execute control over the plaintiff
Written by the judges who cited it.
Later courts went against this
Superseded by statute, as recognized in Murray v. Chicago Youth Center
See DeSmet v. County of Rock Island, 219 Ill. 2d 497, 509 (2006) (assuming defendant owed a duty, “for the sake of analysis, in order to expedite the resolution of an immunity issue”), superseded on other grounds by statute as stated in Murray v. Chicago Youth Center, 224 Ill. 2d 213 (2007).
Distinguished
Distinguished by Ries v. City of Chicago, 242 Ill. 2d 205 (2011)
Again, DeSmet contained a categorical rejection of the principle underlying Doe, followed by the statement “[t]o the extent that Doe still represents good law, we hold it is inapplicable under these circumstances” (DeSmet, 219 Ill. 2d at 515), followed by an explanation of why the case was distinguishable from Doe.
The opinion
JUSTICE McMORROW, dissenting:
At issue in this appeal is whether defendants in this action—various counties and municipalities, as well as their agents and employees—under the facts presented, are absolutely immune from liability based upon section 4—102 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/4—102 (West 2002)). The majority answers this question in the affirmative, holding that a complaint alleging either negligence or willful and wanton misconduct on the part of defendants is properly dismissed pursuant to this statutory provision.
Pertinent to the instant cause, section 4—102 of the Tort Immunity Act provides:
“Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service ***.” 745 ILCS 10/ 4—102 (West 2002).
The majority affirms the circuit court’s dismissal of plaintiff’s complaint on the basis that defendants are completely immunized from plaintiff’s claims pursuant to section 4—102 of the Tort Immunity Act (745 ILCS 10/4—102 (West 2002)). The majority arrives at this conclusion based on a rationale first employed by this court in Barnett v. Zion Park District, 171 Ill. 2d 378 (1996). In Barnett, this court held that section 3—108(a) of the Tort Immunity Act (745 ILCS 10/3—108(a) (West 1992)) cloaked the defendant park district with absolute immunity against allegations that lifeguards at the defendant’s swimming pool knowingly and willfully ignored pleas to save a drowning minor, thereby causing the minor’s death. The Barnett majority reasoned that the absence of an explicit exception for willful and wanton misconduct in section 3—108(a) of the Act meant that “the legislature must have intended to immunize liability for both negligence and willful and wanton misconduct.” Barnett, 171 Ill. 2d at 391-92 . In the course of my dissent from the majority’s holding in Barnett, I observed that there “are strong reasons why the policies underlying grants of immunity for simple negligence should not be impliedly expanded to reach willful and wanton or intentional misconduct.” Barnett, 171 Ill. 2d at 403 (McMorrow, J., dissenting).
More specifically, I explained in Barnett that “the general rationale for granting public entities the protection of immunities not enjoyed by private entities is the significant expense and burdens placed upon the government” when negligence on the part of local public entities or officials carrying out their government duties results in injuries to the public and such negligence lawsuits “are permitted to flourish unchecked.” Barnett, 171 Ill. 2d at 403-04 (McMorrow, J., dissenting). It was my view, however, that the “rationale underlying a grant of immunity for simple negligence is different in kind from any justification for immunizing tortious conduct that is intentionally harmful or willful and wanton,” and if the legislature actually intended to bestow absolute immunity for willful and wanton misconduct, the immunity statute should positively and unequivocally state such an intention. Barnett, 171 Ill. 2d at 404 (McMorrow, J., dissenting).
Since Barnett, I have adhered to my belief that the policies underlying grants of immunity for simple negligence are distinguishable from any justification for blanketing deliberate governmental misconduct with immunity. See In re Chicago Flood Litigation, 176 Ill. 2d 179, 213-14 (1997) (McMorrow, J., concurring in part and dissenting in part); Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 354 (1998) (McMorrow, J., concurring in part and dissenting in part); Henrich v. Libertyville High School, 186 Ill. 2d 381, 401-02 (1998) (McMorrow, J., dissenting); Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 501-10 (2001) (McMorrow, J., concurring in part and dissenting in part); Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 488-90 (2002) (McMorrow, J., concurring in part and dissenting in part); Moore v. Green, 219 Ill. 2d 470, 491-96 (2006) (McMorrow, J., specially concurring). I note that my conclusion in Barnett that the legislature did not intend to immunize willful and wanton misconduct in the immunity provisions of section 3—108 was validated when the General Assembly passed Public Act 90—805 (Pub. Act 90—805, eff. December 2, 1998), which amended section 3—108 to exclude willful and wanton conduct from the immunity granted by the statute. My conviction remains unwaivering that deliberate acts of governmental misconduct are not protected under the Tort Immunity Act by provisions which remain silent with respect to an express exemption for such intentional harmful acts.
In the matter at bar, the majority, based upon the Barnett rationale, interprets section 4—102 of the Tort Immunity Act (745 ILCS 10/4—102 (West 2002)) as affording a local governmental entity and its employees absolute immunity against liability for any injury caused to a citizen as a result of the entity’s “failure to establish a police department or otherwise provide police protection service or if police protection service is provided, for failure to provide adequate police protection or service,” even if such injury results from intentional and knowing misconduct on the part of defendants. The majority arrives at this result on the basis that section 4—102 does not contain an express exemption for willful and wanton misconduct. The majority, however, does recognize that there may be limited exceptions to the application of the blanket immunity it finds exists in section 4—102 in those instances “where a legislative enactment identifies a specially protected class of individuals to whom statutorily mandated duties are owed.” 219 Ill. 2d at 521 . This limited exception, however, does not ameliorate the harshness of the majority’s holding which will, in most instances, insulate government entities and employees from liability for intentional misconduct.
The majority states that although it “firmly believe[s] that citizens have a right to expect the police to respond in a situation like this, the issue here is whether section 4—102 of the Tort Immunity Act immunizes the defendants from liability and the consequent payment of public funds in satisfaction of an individual’s damage claims.” 219 Ill. 2d at 522 . It is my view that blanket immunity should not be afforded to acts performed by local governmental entities or government officials in bad faith, especially where the provision of life-and-death police protection services are at issue. It is evident to me that the blanket, unlimited immunity bestowed upon defendants in this case is unnecessary to protect public entities from liability arising from “the operation of government,” which is the stated purpose of the Tort Immunity Act (745 ILCS 10/1 — 101.1 (West 2002)). Construing section 4 — 102 of the Act to immunize only negligent conduct would completely fulfill this legislative objective.
Accordingly, I respectfully dissent from the majority’s conclusion that intentional misconduct by a local public entity or employee is shielded by the provisions contained within section 4 — 102 of the Tort Immunity Act (745 ILCS 10/4 — 102 (West 2002)). I continue to adhere to the view that where the Tort Immunity Act is silent on the question of whether intentional government misconduct is exempt from immunity, it should not be concluded that such silence translates into a positive intent on the part of the General Assembly to cloak local governmental entities and their employees with unconditional immunity.