stating that "what the special duty doctrine is an exception to is the rule that municipalities are immune from liability for injuries negligently caused by police officers * * * while performing their official duties" (emphasis in original)
How later courts described this case
- stating that "what the special duty doctrine is an exception to is the rule that municipalities are immune from liability for injuries negligently caused by police officers * * * while performing their official duties" (emphasis in original)
- holding that special duty doctrine as a theory of negligence liability exists apart from and is not precluded by section 2 — 202 immunity
- "[i]ncorporating a willful and wanton requirement into the special duty doctrine would therefore yield the anomalous result of making recovery more difficult under the doctrine than it already is under the statute”
- stating that the exception merely permitted an individual to sue a municipality, it did not negate statutory immunities
Written by the judges who cited it.
The opinion
CHIEF JUSTICE MILLER, dissenting:
Like the majority, I would decide the present appeal solely on the basis of the special duty exception to the general rule of municipal nonliability in matters involving police or fire protection. Unlike the majority, however, I do not believe that the plaintiff has satisfied the requirements of that exception. Accordingly, I dissent.
As a preliminary matter, I agree with the majority that the defendant has waived its contention that the courts’ continued recognition of the special duty exception, a common law creation, cannot be reconciled with the existence of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1— 101 et seq. (West 1992)). As the majority opinion notes, the defendant failed to urge this particular theory in the trial court; having lost in that forum, the defendant may not now challenge the adverse judgment on a fresh ground. See Fawcett v. Reinertsen (1989), 131 Ill. 2d 380, 386 ; Richardson v. Economy Fire & Casualty Co. (1985), 109 Ill. 2d 41, 46-47 .
To be sure, the waiver rule expresses a principle of administrative convenience, not a limitation on our jurisdiction. (See, e.g., In re Estate of Swiecicki (1985), 106 Ill. 2d 111, 122-23 .) Yet this appeal is not the proper vehicle for an examination of the complex relationship between the Tort Immunity Act and the special duty exception. The latter doctrine has coexisted with the Act for several decades, and, at least until recently (see Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501 ), it was assumed that there was no inconsistency between the two. Because application of the special duty exception to the present case would not represent a departure from settled precedent (cf. Hux v. Raben (1967), 38 Ill. 2d 223 (litigant’s waiver of issue will be overlooked when necessary to protect consistent development of law)), I see no compelling reason to consider the issue here.
Contrary to the majority’s view, however, I do not believe that the plaintiff has satisfied all the requirements of the special duty exception. The evidence in this case establishes neither that the police officer was uniquely aware of the danger posed to the plaintiff, nor that the plaintiff was under the officer’s “direct and immediate control” at the relevant time. Thus, the present plaintiff has not satisfied at least two of the four requirements for application of the special duty exception (see Burdinie, 139 Ill. 2d at 507-08 (listing requirements)), and her action against the municipality must therefore fail.
First, the plaintiff has not established that the police officer was uniquely aware of the potential dangers in this case. Although the evidence shows that the officer knew or should have known of the risks in effecting a traffic stop in the manner that occurred here, this testimony demonstrates nothing more than the officer’s heightened awareness of those dangers. As Burdinie instructs, “Superior knowledge, in and of itself, does not create a duty.” (Burdinie, 139 Ill. 2d at 522 .) There was no evidence in the present case that the officer was aware of any particular danger threatening the plaintiff.
Moreover, the plaintiff has not shown that her injury occurred while she was under the police officer’s “direct and immediate control.” The plaintiff herself testified that she asked the officer whether she could inspect the license plate and that the officer granted her permission to do so. Clearly, this evidence does not sustain the conelusion that the officer ordered the plaintiff to leave the car. The test is an objective one: What would a reasonable person have believed at the time in question? (See Burdinie, 139 Ill. 2d at 526 .) Notwithstanding the plaintiffs testimony that she thought that she was being ordered out of the car, the evidence in this case supports but one conclusion: that the plaintiff was not directed to get out of her car, and that, prompted by curiosity or disbelief, she exited her vehicle because she wanted to. Notably, even the plaintiff’s own expert witness agreed that the plaintiff was not ordered to leave the car. In the absence of a command by the officer placing the motorist in a position of peril, one must conclude that the requisite control was lacking.
For the reasons stated, I respectfully dissent.