A Presentation by
Dustin Fisher & Mike Kujawa
Tort Immunity 101
1. What is Tort Immunity?
2. Who can use Tort Immunity?
3. When is Tort Immunity Used?
4. How is Tort Immunity Applied?
Sovereign Immunity;
“Crown Immunity”
It’s good to be the King
(or Queen)
Kinnere v. City of Chicago
171 Ill 332 (1898)
Holding:
Municipalities were agents of the state, and
therefore like the state absolutely immune.
Molitar
v.
Kaneland Community Unit District
18 Ill 2d 11 (1959)
Holding:
Units of Local Government no longer given
Sovereign Immunity.
The Illinois Tort Immunity Act
• 745 ILCS 10/1-101, et seq.
Absolutely Immune
1. Failure to adopt or enforce law
2. Failure to Issue or suspend any license or
permit
3. Failure to inspect, or negligent inspection of
private property.
4. Granting or Failure to grant public goods or
funds.
5. Slander, libel, or misrepresentation by public
employees.
Elements of A Typical Tort Case
1.
2.
3.
4.
Legal Duty
Breach of Legal Duty
Proximate Cause
Damages
The Tort Immunity Act Does Not
Create Duties, it Grants Only
Immunities and Defenses
Who is Afforded Tort Immunity?
Who is Afforded Tort Immunity
a)
Local Public Entities are defined as (§ 1-206) :
– “Local public entity” includes a county, township, municipality, municipal corporation, school
district, school board, educational service region, regional board of school trustees, trustees of
schools of townships, treasurers of schools of townships, community college district, community
college board, forest preserve district, park district, fire protection district, sanitary district,
museum district, emergency telephone system board, and all other local governmental bodies.
“Local public entity” also includes library systems and any intergovernmental agency or similar
entity formed pursuant to the Constitution of the State of Illinois or the Intergovernmental
Cooperation Act as well as any not-for-profit corporation organized for the purpose of conducting
public business. It does not include the State or any office, officer, department, division, bureau,
board, commission, university or similar agency of the State.
b) Public Employees
– Employees of (a) above
c) Does not include the State, or any officer of the State.
What Actions Are Immunized Under
The Tort Immunity Act?
A) State Tort Claims
– Tort = Non-Contract Claim for Money Damages
State Actions That Are Not Protected
by the Tort Immunity Act
(745 ILCS 10/2-101)
A)
B)
C)
D)
Contract
Operation as a common carriers
Workers Compensation Act
Workers Occupational Diseases Act
Federal Claims Preempt Tort Immunity
A) § 1983 Claims
B) Statutory Claims, FELA Claims
When is Tort Immunity Used?
A. Motion Practice, § 2-615 & § 2-619 Motions
to Dismiss
B. Summary Judgment
C. Trial, including Special Interrogatories
The Tort Immunity Act Bars Numerous Common
Causes of Action Without Specific
Determinations of Fact.
1 Year Statute of Limitations
745 ILCS 10/8-101
Local government faces heavy burdens in maintaining its vast amounts of property,
unlike private persons and private companies. Therefore, local government has been
granted a shortened 1-year statute of limitations for injuries to persons arising from
government property and activities. Section 8-101 of the Tort Immunity Act provides a 1year statute of limitations (745 ILCS 10/8-101).
The 1-year Tort Immunity Act statute of limitations provides as follows:
8-101. Limitation of actions
§ 8-101. No civil action may be commenced in any court against a local entity or any of
its employees for any injury unless it is commenced within one year from the date that
the injury was received or the cause of action accrued. For purposes of this Article, the
term “civil action” includes any action, whether based upon the common law or statutes
or Constitution of this State. (745 ILCS 10/8-101.)
Punitive Damages
745 ILCS 10/2-102
§ 2-102. Notwithstanding any other provision of law, a
local public entity is not liable to pay punitive or
exemplary damages in any action brought directly or
indirectly against it by the injured party or a third party.
In addition, no public official is liable to pay punitive or
exemplary damages in any action arising out of an act
or omission made by the public official while serving in
an official executive, legislative, quasi-legislative or
quasi-judicial capacity, brought directly or indirectly
against him by the injured party or a third party.
Claims For Defamation
745 ILCS 10/2-107.
Local government, a local public entity, receives immunity protection from claims for
damages to persons who claim a local public entity employee has defamed them and
caused damage to their reputations. Section 2-107 of the Tort Immunity Act grants local
government absolute immunity from libel and slander.
Section 2-107, libel & slander immunity, of the Tort Immunity Act reads as follows:
2-107. Libel – slander – provision of information
§ 2-107. A local public entity is not liable for injury caused by any action of its
employees that is libelous or slanderous or for the provision of information either
orally, in writing, in a book or other form of library material. (745 ILCS 10/2-107.)
For example, see Gavery v. County of Lake, 160 Ill.App.3d 761, 513 N.E.2d 1127
(2nd Dist. 1987) (§ 2-107 libel immunity for letter written by county personnel director to
county employees stating they could not use the services of Dr. Gavery d/b/a Lakewood
Medical Center because of problems regarding misdiagnosed medical problems, nonreferral to specialist, and patients being released too soon from the hospital).
Nearly All Claims For Negligence
• Two Major Exceptions
1. 3-102 Premises liability on Non-Recreational
property
2. 2-202 Immunity – what is execution or
enforcement of law.
Hudson v. City of Chicago
228 Ill 2d 462 (2008)
• Plaintiff files 2 count complaint against City for
failing to provide emergency services.
• Count I for negligence
• Count II for wilful and wanton Misconduct.
Hudson v. City of Chicago
228 ILL 2d 462 (2008)
• Count I – was dismissed with prejudice under
EMS act.
• Count II – the wilful and wanton count,
survived.
• Plaintiff exercised right to voluntarily dismiss.
§ 3-102
A LOCAL PUBLIC ENTITY HAS A DUTY TO MAINTAIN ITS PREMISES IN REASONABLY SAFE
CONDITION ONLY FOR “INTENDED AND PERMITTED USERS” (NOT TRESPASSERS) AND THERE
IS NO LIABILITY FOR DEFECTS ON THE PREMISES UNLESS THE OWNER HAS NOTICE OF THE
DEFECT IN TIME TO REPAIR PRIOR TO THE ACCIDENT. TORT IMMUNITY ACT, 745 ILCS 10/3102(a).
Section 3-102(a) provides as follows:
§ 3-102
(a) Except as otherwise provided in this Article, a local public entity has the duty
to exercise ordinary care to maintain its property in a reasonably safe condition
for the use in the exercise of ordinary care of people whom the entity intended
and permitted to use the property in a manner in which and at such times as it
was reasonably foreseeable that it would be used, and shall not be liable for
injury unless it is proven that it has actual or constructive notice of the existence
of such a condition that is not reasonably safe in reasonably adequate time prior
to an injury to have taken measures to remedy or protect against such
condition. (745 ILCS 10/3-102(a).)
Government owns and is responsible for maintenance of vast amounts of public
property open for the use of the public and, therefore, has immunity protection
available to protect it against liability for injuries on public property under § 3102. Liability for negligence in maintenance of property will exist, under § 3-102,
only if:
1. Plaintiff was an “intended and permitted user” of such
property; and
2. The public entity has notice of the defective condition in
sufficient time to allow repairs to be made.
Section 3-102(a) of the Tort Immunity Act grants immunity to local government by providing a
local public entity’s duty to maintain its property in “reasonably safe condition” extends only to
persons intended by local government to be both “intended and permitted users” of the
property. An “intended user” is one for whose use the property was planned, designed,
constructed and maintained. A “permitted user” is one who is on the property with permission
— a non-trespasser.
The following cases illustrate that pedestrians are not “intended users” of
streets, parkways and alleys, although they may be “permitted users” and that
bicyclists are not “intended users” of streets, though they may be “permitted
users,” and, therefore, no duty is owed to them.
Boub v. Township of Wayne, 183 Ill. 2d 520, 702 N.E.2d 535 (1998) (Bicyclist
on township road and bridge not an “intended user,” as required in § 3-102(a) of Tort
Immunity Act, and, therefore, township immune from liability pursuant to § 3-102(a) of
Tort Immunity Act when bike wheel caught in gap between wooden slats on township
bridge causing bike to flip over and cyclist to sustain serious injuries).
Lewis v. Rutland Township, 359 Ill.App.3d 1076, 824 N.E.2d 1213 (3rd Dist.
2005) (Township not liable because of no “notice” of depression or rut in road struck
by school bus driver who was injured because no depression existed on Friday when
school bus drove on the road, but depression existed on Monday due to rains and
flooding over the weekend).
§ 3-108
A LOCAL PUBLIC ENTITY IS IMMUNE FROM LIABILITY FOR “FAILURE TO SUPERVISE”
AN “ACTIVITY ON OR USE OF PUBLIC PROPERTY” UNLESS THE LAW REQUIRES
SUPERVISION — A STATUTE, CODE OR ORDINANCE REQUIRES SUPERVISION. TORT
IMMUNITY ACT, 745 ILCS 10/3-108(b).
• A local public entity is granted immunity for its supervision or failure to supervise
activities on or the use of public property by § 3-108(a) and (b), supervision immunity,
of the Tort Immunity Act. (745 ILCS 10/3-108(a)(b).)
• If no supervision is provided and if the common law/case law or some statute,
code, ordinance, or regulation does not require supervision, the immunity is absolute
and unconditional. (§ 3-108(b).)
• If supervision is provided or if the law requires supervision, then there is immunity
from negligence, but no immunity from wilful and wanton conduct. (§ 3-108(a).)
§ 3-108.
(a) Except as otherwise provided in this Act, neither a local public entity nor a public
employee who undertakes to supervise an activity on or the use of any public property is liable
for an injury unless the local public entity or public employee is guilty of wilful and wanton
conduct in its supervision proximately causing such injury.
(b) Except as otherwise provided in this Act, neither a local public entity nor a public
employee is liable for an injury caused by a failure to supervise an activity on or the use of any
public property unless the employee or the local public entity has a duty to provide supervision
imposed by common law, statute, ordinance, code or regulation and the local public entity or
public employee is guilty of wilful and wanton conduct in its failure to provide supervision
proximately causing such injury. (745 ILCS 10/3-108(a) & (b).)
Valentino v. Hilquist, 337 Ill.App.3d 461, 785 N.E.2d 891 (1st Dist. 2003)
(Community college board of trustees entitled to full blanket supervision immunity (§
3-108) immunity for former employee’s intentional battery and intentional infliction of
emotional distress claims stemming from negligent supervision of department vice
president, pursuant to provision of Tort Immunity Act in effect at time of injury).
§ 3-106
A LOCAL PUBLIC ENTITY IS NOT LIABLE FOR A CONDITION OF RECREATIONAL
PROPERTY UNLESS IT IS GUILTY OF WILFUL AND WANTON CONDUCT. TORT
IMMUNITY ACT, 745 ILCS 10/3-106.
3-106. Property used for recreational purposes
§ 3-106. Neither a local public entity nor a public employee is liable for an injury
where the liability is based upon the existence of a condition of any public property
intended or permitted to be used for recreational purposes, including but not
limited to parks, playgrounds, open areas, buildings, or other enclosed
recreational facilities, unless such local entity or public employee is guilty of wilful
and wanton conduct proximately causing such injury. (745 ILCS 10/3-106.)
1-210. wilful And Wanton Conduct
§ 1-210. “wilful and wanton conduct” as used in this Act means a course of action
which shows an actual or deliberate intention to cause harm or which, if not
intentional, shows an utter indifference to or conscious disregard for the safety of
others or their property. (745 ILCS 10/1-210.)
The Appellate Court, in A.D. v. Forest Preserve District of Kane County, 313
Ill.App.3d 919, 731 N.E.2d 955 (2nd Dist. 2000), set out the three-pronged test
required to prove wilful and wanton conduct: (1) knowledge of dangerous
condition; (2) knowledge of prior accidents and injuries from the condition; or, (3)
removal of safety device from the recreational property. The Court explained:
In order to establish wilful and wanton conduct, a plaintiff must prove that a
defendant engaged in a ‘course of action’ that proximately caused the injury . . . A
public entity may be found to have engaged in wilful and wanton conduct only if it
has been informed of a dangerous condition, knew others had been injured
because of the condition, or if it intentionally removed a safety device or feature
from property used for recreational purposes. (313 Ill.App.3d at 924, 731 N.E.2d
at 959.)
Section 1-210's definition of “wilful and wanton conduct” requires the
Defendant’s “course of action” reveal Defendant’s mental state, dismissive of
Plaintiff’s safety — that Defendant’s actions show “utter indifference to” or
“conscious disregard for” Plaintiff’s safety:
(1) “Utter indifference to” plaintiff’s safety means, “entire, complete, absolute and
total disregard” for plaintiff’s safety. (Black’s Law Dictionary).
(2) “Conscious disregard for” plaintiff’s safety means, “intentional, knowing,
purposefully ignoring” plaintiff’s safety. (Black’s Law Dictionary).
The following cases found no wilful and wanton conduct because the conduct
involved did not show “utter indifference to” or “conscious disregard for” plaintiff’s
safety. “Utter indifference to” or “conscious disregard for” plaintiff’s safety means
defendant knew of a defective condition, knew injury was almost bound to
happen, and chose to do nothing.
(1) Oravek v. Community Dist. No. 146, 264 Ill.App.3d 895, 637 N.E.2d 554
(1st Dist. 1992) (No wilful & wanton conduct for school district not to remove
skateboard ramp on school property in violation of school policy where plaintiff
injured riding bike onto ramp inadvertently).
(2) Bialek v. Moraine Valley Community College School Dist. No. 524, 267
Ill.App.3d 857, 642 N.E.2d 825 (1st Dist 1994) (No wilful & wanton conduct where
plaintiff collided with goal post used as boundary marker playing pick-up football
— not wilful and wanton for college not to remove or pad goal post).
(3) Koltes v. St. Charles Park District, 293 Ill.App.3d 171, 687 N.E.2d 543 (2nd
Dist. 1997) (No wilful and wanton conduct on Park District’s part where golfer
standing by woman’s tee hit by golfer on men’s tee even though Park District
knew of a similar prior accident because knowledge of one prior accident and
non-action thereafter is not a “course of conduct” which shows “utter indifference
to” plaintiff’s safety)
WHAT IS RECREATIONAL PROPERTY — REXROAD V. CITY OF SPRINGFIELD, 207
ILL.2d 33, 796 N.E.2d 1040 (2003)?
Section 3-106, recreational property immunity, grants immunity to a local public
entity, except for wilful and wanton conduct, for injuries caused by a condition (not
activities) of public property intended or permitted to be used for recreational
purposes.
What is “recreational” property?
Whether property is “recreational property” is determined by its nature, intended
use, and past use. But, analysis is on a case-by-case basis. An example will help
explain.
Is a parking lot “recreational property”? It can or cannot be, as two Supreme Court
cases illustrate:
(1) Sylvester v. Chicago Park District, 179 Ill.2d 500, 689 N.E.2d 1119
(1997) (Parking lot across street from Soldier Field, where plaintiff tripped over
concrete parking bumper, was “recreational property” under § 3-106 because it
increased the usefulness of Soldier Field used for recreational purposes).
Thus, non-recreational property (parking lot) can be “recreational property” if its
use increases/aids/allows use of recreational property.
(2) Rexroad v. City of Springfield, 207 Ill.2d 33, 796 N.E.2d 1040 (2003)
(Parking lot located to serve the school, football practice field and locker room,
where plaintiff fell in a hole under construction, was not recreational property
under § 3-106 because it served the whole school and was not primarily serving
and increasing the usefulness of recreational property — it did so only
incidentally).
The Supreme Court in Rexroad characterized the parking lot as only “incidental”
to recreational property.
“We hold that any recreational use of the parking lot in question was so incidental
that § 3-106 does not apply.” (207 Ill.2d at 43, 796 N.E.2d at 1045.)
§ 2-201
PUBLIC EMPLOYEES: DISCRETIONARY OR JUDGMENT-CALL IMMUNITY FOR PUBLIC
EMPLOYEES MAKING A POLICY DECISION BALANCING CONFLICTING INTERESTS OF
SAFETY, EFFICIENCY, TIME, RESOURCES AND MANPOWER AND EXERCISING
DISCRETION BY MAKING A JUDGMENT-CALL AND SELECTING THE BEST
METHOD. TORT IMMUNITY ACT, 745 ILCS 10/2-201, DISCRETIONARY IMMUNITY.
A public employee of a local public entity has discretionary immunity when making
a policy decision and exercising judgment as to how to act, pursuant to § 2-201,
discretionary immunity of the Tort Immunity Act (745 ILCS 10/2-201). If a public
employee is not liable by virtue of § 2-201 discretionary immunity, the local public
entity, as his or her employer, cannot be liable and is immune from liability (745
ILCS 10/2-109).
2-201. Determination of Policy or Exercise of Discretion
§ 2-201. Except as otherwise provided by Statute, a public employee
serving in a position involving the determination of policy or the exercise of
discretion is not liable for an injury resulting from his act or omission in determining
policy when acting in the exercise of such discretion. (745 ILCS 10/2-201.)
The Illinois Supreme Court applied a two-pronged test to determine when §
2-201 discretionary immunity applies in the case of Harinek v. 161 No. Clark St. Ltd.
Partnership. (Harinek v. 161 No. Clark St. Ltd. Partnership, 181 Ill.2d 335, 692
N.E.2d 1177 (1998) (Chicago city fire marshal not liable for injuries during a fire drill
by virtue of § 2-201, discretionary immunity, where he made a policy decision
balancing competing interests of efficiency, safety, resources and time and
exercised his discretion or best judgment in determining how, when and where to
conduct the fire drill).)
The Supreme Court in Harinek used a two-pronged test to determine when § 2201 discretionary immunity bars any cause of action:
(1)
a policy decision — balancing of competing interests — the fire marshal
balanced the interests of efficiency, safety, resources, time, and personnel.
(2)
the exercise of discretion or judgment — choosing the best solution —
the fire marshal exercised discretion in deciding how, when, and where to
conduct the fire drill.
The law looks at the actions of local public employees in one of two fashions:
(1) the actions are “ministerial”; or
(2) the actions are “discretionary.”
Ministerial actions are those imposed by and compelled by law. Ministerial actions
are actions an employee must perform because they are required by the law — a
statute, code, ordinance or common law/case law rule.
All non-ministerial actions are discretionary, involving a judgment call left up the
employee to make.
Illustrative of discretionary judgment-calls for which § 2-201, discretionary immunity,
provides immunity are the following:
(1) Arteman v. Clinton Community Unit School District No. 15, 198 Ill.2d
475, 763 N.E.2d 756 (2002) (§ 2-201 discretionary immunity for School District
for failure to provide kneepads as safety equipment for rollerblades in gym
class where student fell and fractured leg — § 2-201 of Tort Immunity Act
trumps duty of School District to furnish safety equipment under School Code/
“in loco parentis” statute).
(2) Harrison v. Hardin County Community Unit School District No. 1,
197 Ill.2d 466, 758 N.E.2d 848 (2001) (§ 2-201 discretionary immunity barred
suit against School District for decision not to grant student early dismissal
where snow storm approaching — when student released with all students
later, student in auto accident in snow & motorist sued student & School
District).
(3) In re Estate of Elfayer v. City of Chicago, 325 Ill.App.3d 1076, 757
N.E.2d 581 (1st Dist. 2001) (§ 2-201 discretionary immunity for City’s decision to
install 8" concrete median barriers on city streets as no statutes or codes
required certain height measurements on median barriers — where drunk
driver crossed 8 inch center median barrier and hit oncoming auto head-on).
§ 3-104
TRAFFIC CONTROL DEVICES — SIGNS, LIGHTS, SIGNALS: A LOCAL
PUBLIC ENTITY IS IMMUNE FROM LIABILITY FOR FAILURE TO
“INITIALLY INSTALL” STOP SIGNS, TRAFFIC LIGHTS, WARNING
DEVICES, LIGHTING AND BARRICADES UNDER § 3-104 OF THE TORT
IMMUNITY ACT, 745 ILCS 10/3-104.
3-104. Failure to Provide Traffic Signals and Signs
§ 3-104. Neither a local public entity nor a public employee is liable under this Act
for an injury caused by the failure to initially provide regulatory traffic control
devices, stop signs, yield right-of-way signs, speed restriction signs, distinctive
roadway markings or any other traffic regulating or warning sign, device or
marking, signs, overhead lights, traffic separating or restraining devices or
barriers. (745 ILCS 10/3-104.)
(1) Ramirez v. Village of River Grove, 266 Ill.App.3d 930, 641 N.E.2d 7 (1st Dist.
1994) (§ 3-104 warning sign immunity trumped any duty of Village to install a
“Railroad Advance Warning” sign per ICC Regulations and Uniform Manual thus
barring plaintiff’s cause of action).
(2) Gresham v. Kirby, 229 Ill.App.3d 952, 595 N.E.2d 201 (4th Dist. 1992) (City had §
3-104 signing devices immunity for accident at intersection of city street and State
highway where city posted stop signs and there had been 8 other accidents and one
death where cars pulled from stop sign into through traffic on State road).
(3) Thompson v. Cook County Forest Preserve District, 231 Ill.App.3d 88, 595
N.E.2d 1254 (1st Dist. 1992) (Forest Preserve had no duty to install a sidewalk along
forest preserve parking and restroom facilities and § 3-104 signing immunity for failure to
post signs warning of pedestrians crossing roadway).
(4) Prostran v. City of Chicago, 349 Ill.App.3d 81, 811 N.E.2d 364 (1st Dist.
2004) (City had no duty to warn pedestrian on sidewalk crossing alley of open and
obvious danger of debris and rocks in construction work in alley and § 3-104
immunity for failure to install signs or barricades at alley warning pedestrians).
§ 3-105
WEATHER IMMUNITY: § 3-105, WEATHER IMMUNITY, OF THE TORT
IMMUNITY ACT GRANTS LOCAL PUBLIC ENTITIES IMMUNITY FROM
LIABILITY FOR INJURIES CAUSED BY THE EFFECTS OF WEATHER —
WIND, RAIN, ICE, SNOW, FLOOD AND HAIL — UPON STREETS,
HIGHWAYS, ALLEYS, SIDEWALKS AND OTHER “PUBLIC WAYS OR
PLACES OR WAYS ADJOINING.” TORT IMMUNITY ACT, 745 ILCS 10/3-105.
As the Illinois Appellate Court stated in the case of Enriquez v. City of Chicago, 187
Ill.App.3d 1110, 543 N.E.2d 905 (1st Dist. 1989), § 3-105, weather immunity, is merely
the statutory codification of the “no liability for natural accumulations of ice, snow and
water” rule:
When enacted, this section of the Act codified the preexisting common law rule of nonliability and also extended that rule to counties. . . . (187 Ill.App.3d at 1115, 543 N.E.2d
at 908.)
Section 3-105, weather immunity, of the Tort Immunity Act
provides, in pertinent part, as follows:
3-105. Use of streets, etc.
Neither a local public entity nor a public employee is liable for an injury caused
by the effect of weather conditions as such on the use of streets, highways,
alleys, sidewalks or other public ways, or places, or the ways adjoining any of the
foregoing. . . . For purposes of this section, the effect of weather conditions as
such includes but is not limited to the effect of wind, rain, flood, hail, ice or snow .
(745 ILCS 10/3-105.)
§ 2-202
EXECUTION OR ENFORCEMENT OF THE LAW: A LOCAL PUBLIC ENTITY IS NOT LIABLE
FOR NEGLIGENCE WHEN EXECUTING OR ENFORCING THE LAW, BUT CAN BE LIABLE
FOR WILFUL AND WANTON CONDUCT UNDER § 2-202, EXECUTION OR
ENFORCEMENT OF THE LAW IMMUNITY. TORT IMMUNITY ACT, 745 ILCS 10/2-202.
Section 2-202 of the Tort Immunity Act serves to absolve a police officer from liability for
allegations of mere negligence where the allegedly wrongful act or omission occurs
while the officer is in the execution or enforcement of any law. Section 2-202 of the Act
provides as follows:
2-202. Execution or enforcement of law
§ 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 wilful and wanton
conduct. (745 ILCS 10/2-202.)
There are number of Illinois cases on § 2-202 immunity (no liability for ordinary
negligence, just liability for wilful and wanton conduct). Some of the cases include the
following:
(1) Thompson v. City of Chicago, 108 Ill.2d 429, 484 N.E.2d 1086 (1985) (Police
officer who struck plaintiff while driving his car in reverse to retreat from unruly crowd
was engaged in the enforcement of the law; because § 2-202 applied, trial court should
have directed verdict in favor of defendants on negligence allegations).
(2) Fitzpatrick v. City of Chicago, 112 Ill.2d 211, 492 N.E.2d 1292 (1986)
(Held: police officer’s act of parking squad car partially in lanes of traffic for purpose of
investigating vehicle accident constituted act in the execution or enforcement of the
law; cause remanded with directions to enter directed verdict in favor of police officer
and his employer).
(3) Morris v. City of Chicago, 130 Ill.App.3d 740, 474 N.E.2d 1274 (1st Dist. 1985)
(Police officer and his employer were immune from allegations of mere negligence
pursuant to § 2-202, where officer’s car slid on a patch of ice and collided with
plaintiff’s vehicle while officer was responding to “in progress” call on police radio;
although officer had turned off siren, he left flashing head lamps on immediately before
collision).
(4) Bruecks v. County of Lake, 276 Ill.App.3d 567, 658 N.E.2d 538 (2nd Dist. 1995)
(§ 2-202 execution or enforcement of law immunity where deputy in accident
responding to shots fired radio call — no wilful and wanton conduct).
§ 4-102
POLICE PROTECTION, SERVICES, FAILURE TO ARREST IMMUNITY: § 4102, FAILURE TO PREVENT CRIME, PROVIDE POLICE PROTECTION OR
ADEQUATE POLICE PROTECTION IMMUNITY, GRANTS IMMUNITY FOR
FAILURE TO PROVIDE ADEQUATE POLICE PROTECTION, PREVENT
CRIME, SOLVE CRIMES OR APPREHEND CRIMINALS. TORT IMMUNITY
ACT, 745 ILCS 10/4-102.
Neither a local public entity nor a local public employee can prevent criminal conduct of
third persons and they are provided absolute immunity for failure to do so (one cannot
be his brother’s keeper) by virtue of § 4-102, police protection, failure to prevent criminal
conduct immunity of the Tort Immunity Act (745 ILCS 10/4-102).
This immunity is sometimes overlooked in the school context because it is denominated
“police protection” and while it does also apply to police officers, it applies to all public
employees.
Section 4-102, police protection or failure to prevent criminal conduct immunity, of the
Tort Immunity Act provides as follows:
4-102. Police protection
§ 4-102. Neither a local public entity nor a public employee is liable for failure to establish a
police department or otherwise provide police protection service or, if police protection
service is provided, for failure to provide adequate police protection or service, failure to
prevent the commission of crimes, failure to detect or solve crimes, and failure to identify or
apprehend criminals. This immunity is not waived by contract for private security service, but
cannot be transferred to any non-public entity or employee. (745 ILCS 10/4-102.)
The following cases hold that § 4-102 Police Protection Service Immunity bars
any cause of action for negligence or wilful and wanton conduct in providing
inadequate police protection:
(1) Barnes v. Chicago Housing Authority, 326 Ill.App.3d 710, 761 N.E.2d 283 (1st Dist.
2001) (§ 4-102 police protection immunity barred action of father and daughter against
CHA for gang attack on them where CHA failed to renew contract of security guard
service providing security protection from gangs at housing project — § 4-102 bars
actions both on a negligence theory and a wilful and wanton conduct theory).
(2) Lawson v. City of Chicago, 278 Ill.App.3d 628, 662 N.E.2d 1377 (1st Dist. 1996) (both
City and Board of Education immune from liability by § 4-102 police protection immunity
for shooting of student at school by suspended student who came into school with gun
not detected on metal detector which was not operating at the time — a voluntary
undertaking did not create an exception to § 4-102 immunity, police protection
immunity).