Illinois Abandons Public Duty Doctrine in Fire Department Case

In a split decision in a case involving a fire department, the Illinois Supreme court has taken the drastic step of abolishing the public duty doctrine in Illinois. As explained below, in most states the public duty doctrine offers firefighters an important layer of liability protection from lawsuits over and above the protection afforded by immunity.

The ruling came down on January 22, 2016 in the case of Coleman v. East Joliet Fire Protection District. The case involved a 911 call for a medical emergency that, for a variety of Murphy’s Law-type reasons, resulted in a 41-minute delay in accessing the patient. The patient, Coretta Coleman, 58, died and her husband, Marcus, filed a wrongful death suit against East Joliet Fire Protection District, EMT Louis Helis, Medic Scott Mazor, Will County, Will County 911 operator Laurie Zan, Orland Fire Protection District, and dispatcher Eric Johnson.

The case was tossed by the trial court based upon the public duty doctrine, which essentially holds that government does not owe members of the general public a legal duty to render care. As a result when government fails to live up to someone’s expectations of what services should be provided, they cannot sue for their damages in the absence of some special relationship. The failure to deliver a given level of service (an omission) should be distinguished from when a government agent affirmatively acts in such a way that causes an injury to a member of the public.

The distinction between affirmative acts of negligence (driving an ambulance which injures someone in an accident; providing an improper dosage of medication to a patient) and failing to act (not having a ambulance available; failing to arrive on scene fast enough; not having the proper equipment on board,) has never been an easy nor universally accepted distinction under the public duty doctrine.

Even in the Coleman case, arguments can be made that the allegations go beyond the mere failure to render aid and constitute affirmative acts of negligence. In dealing with the facts of the case, the majority ruling stayed away from splitting the affirmative act/omission dichotomy instead suggesting that this area is better left to the legislature to fix as opposed to the courts:

  • The common-law “public duty rule” provides that local governmental entities owe no duty to individual members of the general public to provide adequate government services, such as police and fire protection.
  • In Leone v. City of Chicago, 156 Ill. 2d 33 (1993), this court stated: “The courts of this State have held as a matter of common law that municipalities are generally not liable for failure to supply police or fire protection [citation], nor are they liable for injuries negligently caused by police officers or fire fighters while performing their official duties [citation]. An exception to these rules has been recognized where the municipality owes the injured party a special duty that is different from its duty to the general public.”
  • The public duty rule is believed to have originated in the United States Supreme Court case of South v. Maryland, 59 U.S. 396 (1855).
  • The public duty doctrine was widely accepted in most jurisdictions.
  • Plaintiff argues that the public duty rule is the equivalent of sovereign immunity and that the public duty rule should be abolished by this court in light of the abrogation of sovereign immunity and passage of statutory tort immunities.
  • The public duty rule is not the equivalent of any type of sovereign immunity.
  • While the public duty rule and sovereign immunity are both common-law concepts, the “public duty rule” developed separately and exists independently of any constitutional, statutory or common-law concepts of “sovereign immunity.”
  • The issue of whether a duty is owed is a separate and distinct issue from whether a defense of governmental immunity applies.
  • A majority of jurisdictions continue to adhere to the public duty rule despite abolition of sovereign immunity and passage of immunity statutes, “concluding that, in both law and policy, the rule is sound and necessary.”
  • Some of those jurisdictions have revived the public duty rule via legislation after state courts abolished it. We note that the legislatures of Alaska, Arizona, Colorado, Massachusetts, and Louisiana have passed legislation reinstating the public duty rule.
  • We have consistently held that the public duty rule survived the abolition of sovereign immunity and passage of the Tort Immunity Act.
  • Nevertheless, after much reflection, we have determined that the time has come to abandon the public duty rule and its special duty exception.
  • We believe that departing from stare decisis and abandoning the public duty rule and its special duty exception is justified for three reasons: (1) the jurisprudence has been muddled and inconsistent in the recognition and application of the public duty rule and its special duty exception; (2) application of the public duty rule is incompatible with the legislature’s grant of limited immunity in cases of willful and wanton misconduct; and (3) determination of public policy is primarily a legislative function and the legislature’s enactment of statutory immunities has rendered the public duty rule obsolete.
  • As one court has aptly noted, “[c]onceptually, the question of the applicability of a statutory immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity.” … Frequently, however, this “logical sequence of inquiry” has been overlooked and the “immunity cart has been placed before the duty horse.”

Three judges dissented from the majority opinion, expressing concern about the majority’s decision to reverse settled law as well as abandon such an important protection. Even among the four judge majority, they were not in 100% agreement with the reasoning for abolishing the public duty doctrine.

Here is a copy of the ruling: Coleman v East Joliet FPD

Personally, I am a big fan of the public duty doctrine. It offers significant liability protection to fire departments and firefighters from those who would otherwise place never ending expectations upon us yet fail to support those expectations with the financial resources to make them feasible.

Whether the Illinois Supreme Court realized it or not,  a new avenue of attack has been opened for those who are injured in an emergency. No matter if it is a fire truck that is perceived to have arrived too slowly or with too few firefighters on it; or a truck that is perceived to have lacked a certain piece of equipment (an AED, an epi-pen or a longer ladder); or a fire station that someone believes should have had an EMS unit assigned to it… one of the strongest defenses the fire service had – the public duty doctrine – is now gone in Illinois.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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