Municipality’s purchase of liability insurance policies did not operate as complete waiver by municipality of protections of Local Governmental and Governmental Employees Tort Immunity Act, with respect to claim arising before 1986 amendment of Act, where municipality had a self-insured retention, and two insurance companies from which municipality had purchased polices were bankrupt and defunct, so that public money was implicated by claims against municipality
How later courts described this case
- Municipality’s purchase of liability insurance policies did not operate as complete waiver by municipality of protections of Local Governmental and Governmental Employees Tort Immunity Act, with respect to claim arising before 1986 amendment of Act, where municipality had a self-insured retention, and two insurance companies from which municipality had purchased polices were bankrupt and defunct, so that public money was implicated by claims against municipality
- “the special duty doctrine cannot, and was not intended to, contravene the immunities provided to governmental entities under the Tort Immunity Act”
- “The public duty rule is a long-standing precept which establishes that a 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.”
- “The 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 ***.”
Written by the judges who cited it.
Later courts went against this
Abrogated by Coleman v. East Joliet Fire Protection District, 2016 IL 117952 (2016)
Zimmerman was expressly abrogated in Coleman v. East Joliet Fire Protection District , 2016 IL 117952
The opinion
JUSTICE NICKELS, also dissenting:
I dissent in two respects. First, I disagree with the majority’s discussion of the special duty doctrine. Second, I disagree with the majority’s application of sections 2 — 202 and 4 — 105 of the Tort Immunity Act. Accordingly, I write separately.
The majority, relying on Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335 (1998), abolishes the special duty doctrine. This doctrine has been applied in numerous cases over the past 30 years. See Calloway v. Kinkelaar, 168 Ill. 2d 312 , 339 n.l (1995) (Freeman, J., specially concurring) (collecting cases). Whatever the genesis of the special duty doctrine, it has become an ingrained part of our case law. The appellate court correctly recognized the viability of the special duty doctrine based on past decisions of this court.
As recently stated by this court, the legislature is the appropriate body to alter this existing law, if it so desires. See Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 520 (1990). The legislature, however, has failed to act in the decades that the special duty doctrine has been applied. For these reasons, and for reasons more fully set forth in my special concurrence in Harinek, I believe that the special duty doctrine should not be abolished. See Harinek, 181 Ill. 2d at 350-53 (Nickels, J., specially concurring). Accordingly, I believe this court should reconsider the reasoning of Harinek.
The majority also remands this cause to the circuit court for a factual determination as to whether section 2 — 202 of the Tort Immunity Act applies. Under section 2 — 202, “[a] public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton negligence.” Ill. Rev. Stat. 1981, ch. 85, par. 2 — 202. The majority recognizes that section 2 — 202 does not embrace all activities that a public employee might perform in the course of his employment. See 183 Ill. 2d at 57, quoting Aikens v. Morris, 145 Ill. 2d 273, 281 (1991); see also Arnolt v. City of Highland Park, 52 Ill. 2d 27, 33 (1972). Section 2 — 202 requires something more. It requires that a public employee actually be executing or enforcing a law. Barnett v. Zion Park District, 171 Ill. 2d 378, 390-91 (1996). Section 2 — 202 simply does not apply because the allegations do not involve the actual execution or enforcement of a law.
In contrast, section 4 — 105 specifically addresses the failure of public officials to take reasonable action to summon medical care where they are aware that a prisoner needs immediate medical care. Ill. Rev. Stat. 1981, ch. 85, par. 4 — 105. This statute clearly establishes a negligence standard of care. It is a more specific provision than section 2 — 202 and encompasses the allegations raised in the complaint. A factual determination is therefore unnecessary. To this extent, I agree with Justice Harrison in his dissent in this case.
Accordingly, I would allow plaintiff to pursue his negligence claims on remand. I would allow plaintiff to proceed under both the special duty doctrine and section 4 — 105.