Illinois Supreme Court Abolishes Long-Standing Public Duty Rule

Mark Burkland is Senior Counsel and Peter Friedman is a Partner in Holland & Knight's Chicago office

HIGHLIGHTS:

A divided Illinois Supreme Court has abolished the common-law standard that a local governmental body and its employees, when providing services like police and fire services, do not owe a duty of care to individual members of the public but instead owe a duty only to the public generally. The decision leaves a gap in protection of public employees against claims of willful and wanton conduct. The Illinois Legislature can act to reinstate the public duty rule. A divided Illinois Supreme Court issued its decision in Coleman v. East Joliet Fire Protection District et al., 2016 IL 117952, on Jan. 22, 2016, abolishing the common-law standard that a local governmental body and its employees, when providing services like police and fire services, do not owe a duty of care to individual members of the public but instead owe a duty only to the public generally. This standard, widely known as the "public duty rule," was conceived by the U.S. Supreme Court more than 150 years ago and has been firmly in place in Illinois for more than 50 years.

The public duty rule, which prevents individual citizens from suing public employees under most circumstances, largely overlaps the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101 et seq., and several other Illinois laws that include immunity provisions. But, unlike the public duty rule, those laws do not protect public employees against claims of willful and wanton conduct. The abolition of the public duty rule thus creates a gap of sorts - leaving public employees subject to claims of willful and wanton conduct.

The lead opinion of the Coleman Court, joined only by its author Justice Thomas Kilbride and Justice Anne Burke, determined that the public duty rule should be abolished because (1) the rule has been "muddled" by inconsistent court rulings, (2) the rule is incompatible with Illinois immunity laws that carve out willful and wanton conduct, and (3) the rule is obsolete in light of those statutory immunities.

Two justices specially concurred with the lead decision, agreeing that the public duty rule should be abolished but for reasons entirely different from the reasons stated in the lead opinion. The concurring opinion was written by Justice Charles Freeman and joined by Justice Mary Jane Theis.

The three remaining justices dissented in a strongly worded opinion written by Justice Robert Thomas and joined by Chief Justice Rita Garman and Justice Lloyd Karmeier.

Immediate Impacts

The Coleman decision likely will increase the number and duration of lawsuits filed against public employees, despite the immunity provisions of the Tort Immunity Act. In addition, public employees now are at risk of liability for willful and wanton conduct, unless the Illinois Legislature acts to fill that gap. Additionally, public employees rightly...