# Zimmerman v. Village of Skokie

> Illinois Supreme Court · June 18, 1998 · 183 Ill. 2d 30

URL: https://www.frixlaw.com/law-library/cases/9859856

## Case

- **Full name:** IRVING R. ZIMMERMAN, as Guardian for Scott E. Zimmerman, a Disabled Person, Appellee, v. THE VILLAGE OF SKOKIE Et Al., Appellants
- **Court:** Illinois Supreme Court
- **Decided:** June 18, 1998
- **Citations:** 183 Ill. 2d 30; 231 Ill. Dec. 914; 697 N.E.2d 699; 1998 Ill. LEXIS 910
- **Precedential status:** Published
- **Opinion:** Dissent by Nickels
- **Judges:** McMorrow, Harrison, Nickels
- **Cited by:** 129 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated by Coleman v. East Joliet Fire Protection District, 2016 IL 117952 (2016).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9859856

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9859856. Public record. Not legal advice.