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
JUSTICE BILANDIC, also dissenting:
I respectfully dissent from the majority’s decision. It is undisputed that, pursuant to the Tort Immunity Act (745 ILCS 10/1 — 101 et seq. (West 1992)) municipalities are not liable for injuries resulting from an act or omission of a police officer in the execution or enforcement of any law “unless such act or omission constitutes willful and wanton conduct” (745 ILCS 10/2 — 202, 2 — 109 (West 1992)). The jury in the instant action specifically found that Officer Coffey was not acting willfully and wantonly at the time the plaintiff sustained her injuries. The majority nevertheless concludes that the City of Chicago is liable for the injuries the plaintiff suffered as a result of Officer Coffey’s ordinary negligence in enforcing traffic laws.
The majority concludes that the facts of this case fall within the judicially created “special duty” rule. Even if I assume, arguendo, that the majority is correct in concluding that the City waived its right to contest the validity of the “special duty” rule, I must disagree with the majority’s conclusion that the rule may be invoked under the facts of this case.
Our courts have held thát the following four-prong test must be satisfied before plaintiffs may invoke the “special duty” doctrine:
“ ‘(1) the municipality must be uniquely aware of the particular danger or risk to which the plaintiff is exposed [citation];
(2) there must be allegations of specific acts or omissions on the part of the municipality [citation];
(3) the specific acts or omissions *** must be either affirmative or wilful in nature [citation]; and
(4) the injury must occur while the plaintiff is under the direct and immediate control of employees or agents of the municipality [citation].’ ” (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 508 , quoting Bell v. Village of Midlothian (1980), 90 Ill. App. 3d 967, 970 .)
Here, even if the plaintiff could establish the first three elements of this test, the record conclusively establishes that Leone was not under Officer Coffey’s “direct and immediate control” when she was injured. The facts establish that Officer Coffey pulled Leone over to the side of the road so that he could write her a ticket for having an expired license plate. When Coffey told Leone that the plate was expired, she refused to believe him. According to Leone, Coffey responded, “If you don’t believe me, then get out and look.” Leone testified that she interpreted this comment as an order to get out of her car and look at the license plate.
These facts do not support a finding that Leone was under the direct and immediate control of Officer Coffey. In determining whether the control prong of the special duty rule is satisfied, courts have considered whether the municipality “was responsible for the occurrence which gave rise to the heed for protection.” (McGuckin v. Chicago Union Station (1989), 191 Ill. App. 3d 982, 993 .) In this case, Leone and not Coffey was responsible for the occurrence which gave rise to her injuries. Leone drove her vehicle with an expired license plate, thereby necessitating Officer Coffey’s traffic stop. Despite the fact that Leone knew or should have known that her license plate was expired, she nevertheless persisted in challenging Officer Coffey’s assertion to that effect. Officer Coffey never ordered or compelled Leone to leave her car. Rather, he simply elected not to be swayed by her persistent effort to avoid receiving a traffic citation. Leone was always free to remain in her automobile and acknowledge that she had violated the law. Instead, she elected to persist in her disbelief and, as a means of proving that her disbelief was “genuine,” left her vehicle to “verify” the expiration date on her license plate. Officer Coffey did not cause Leone to place herself at risk. It was Leone’s decision to dispute Officer Coffey’s statements. It was also her choice to leave her vehicle to examine her expired plate.
Not surprisingly, Leone claimed at trial that she believed that Officer Coffey was ordering her to exit her vehicle. Direct and immediate control, however, cannot be established simply because an injured plaintiff claims that she “subjectively believed” that a police officer was issuing a direct order. Rather, the direct and immediate control element must be measured by an objective view of the officer’s actions, and is satisfied only if a reasonable person in the plaintiff’s position would have concluded that the officer was issuing a direct order. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501 .) Otherwise, any contact between a private citizen and a police officer will be sufficient to establish the direct and immediate control element necessary to create a special duty.
Applying an objective, rather than a subjective, test, it is evident that Coffey never “ordered” Leone to exit her vehicle and never assumed direct control over her person. Officer Coffey’s conduct was similar to that at issue in Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 3d 172 . The plaintiff in Marvin was attacked near the cashier’s window in a subway station. A Chicago police officer chased the youths away, but refused the plaintiff’s request to accompany him down to the platform. The officer told the plaintiff that the youths were going in a different direction. When the plaintiff reached the platform, however, the youths were waiting and beat him severely. The appellate court affirmed the dismissal of the plaintiff’s complaint, holding that “[t]he mere disjunctive allegation that the police officer ‘directed, permitted or caused’ plaintiff to descend to the platform *** does not meet this *** requirement.” Marvin, 113 Ill. App. 3d at 177 .
The police officer’s suggestion in Marvin that it was safe for the plaintiff to descend to the subway platform was similar to Officer Coffey’s suggestion in this case that Leone could see for herself that her license plate was expired. In neither case did the police officer’s suggestion qualify as a direct order or an assumption of direct and immediate control over the plaintiff. Rather, in both cases the injured plaintiffs chose to place themselves in a position of peril and then sought to blame the officer involved for “forcing” them to make that choice.
Furthermore, even if the four requisite elements of the special duty rule were satisfied in this case, the City is not liable for Officer Coffey’s conduct because his actions were not willful and wanton. Consequently, the City is immune from liability under the express terms of the Tort Immunity Act.
The majority rejects this claim because it finds that the “special duty” doctrine is an exception to the statutory immunity conferred upon municipalities under the Tort Immunity Act. According to the majority, once the four elements of the “special duty” doctrine are established, a municipality is liable for injuries resulting from a police officer’s ordinary negligence in enforcing laws. The majority’s decision reflects a fundamental misconception of the relationship between the “special duty” doctrine and the Tort Immunity Act.
The “special duty” doctrine is not an exception to the common law doctrine of sovereign immunity or to the statutory immunity conferred upon municipalities in the Tort Immunity Act, as the majority suggests. Rather, the doctrine is an exception to the common law “public duty” rule. The public duty rule provides that law enforcement officials owe no duty to protect individual citizens. Rather, the police owe a duty to the public at large to enforce and execute laws for the well-being of the entire community. (Schaffrath v. Village of Buffalo Grove (1987), 160 Ill. App. 3d 999 .) The public duty rule reflects a policy decision that the police cannot guarantee the personal safety of every member of the community. (Schaffrath v. Village of Buffalo Grove (1987), 160 Ill. App. 3d 999 .) The rule protects municipalities from liability in tort by establishing the principle that police officers have no enforceable duty to protect individual citizens from harm.
The public duty rule does not apply, however, where the police voluntarily assume a duty to an individual so as to elevate that person’s status to something more than just being a member of the public. (Schaffrath v. Village of Buffalo Grove (1987), 160 Ill. App. 3d 999, 1003 .) A police officer will be found to have assumed a “special duty” to protect a particular plaintiff only if the plaintiff satisfies the four-pronged test described above. Thus, the “special duty” doctrine arose as an exception to the general rule that the police owe no duty to a particular injured plaintiff. The public duty rule and the special duty exception to that rule are analytical tools used to determine whether a municipality and its employee owe an enforceable duty to an individual claimant. 18 E. McQuillan, Municipal Corporations §53.04.25, at 165-66 (3d ed. 1993).
An injured plaintiff must prove that a police officer assumed a “special duty” to protect him or her from injury as part of the plaintiffs prima facie case against a municipality. Satisfaction of the “special duty” rule, however, does not necessarily demonstrate that the municipality is liable in tort for the plaintiff’s injury. The plaintiff must also demonstrate that the municipality or its employee breached that duty and is liable for resulting damages. In an ordinary case, defendants are liable in tort when they negligently breach a duty of care owed to the plaintiff. The Tort Immunity Act, however, affords municipalities with immunity for negligent acts of police officers engaged in the enforcement and execution of laws. Under the Act, a municipality is liable in tort to an injured plaintiff only when a police officer engages in willful and wanton misconduct. Thus, the “special duty” rule determines whether the municipality owed a duty to a particular plaintiff, while the Tort Immunity Act establishes the standard of care at which a municipality will be held liable for breach of that duty.
A plaintiff who is injured as a consequence of a police officer’s act or omission in the execution and enforcement of the law must satisfy two separate hurdles to obtain recovery from the municipality employing that police officer. The plaintiff must first prove the existence of a “special duty” to establish that the police officer and the municipality owed an enforceable duty to her in the first place. Even where a “special duty” exists, however, the municipality is immune from liability for breach of that special duty, unless the plaintiff also proves that the officer’s breach was willful and wanton within the meaning of the Tort Immunity Act. Even if Leone overcame the first hurdle and demonstrated that Officer Coffey assumed a special duty to protect her, she failed to demonstrate that Coffey acted willfully and wantonly. Therefore, the City is immune from liability for Leone’s injuries under the express provisions of the Tort Immunity Act.