8665869054_54c9a0fc32_zIn the closing days of the March term, the Illinois Supreme Court heard oral arguments in Coleman v. East Joliet Fire Protection District, a case from the Third District. Coleman poses the question of whether public entities and their employees owe a tort duty of care to callers to 911 emergency lines. Our detailed summary of the facts and court decisions in Coleman is here.

The plaintiff’s decedent called 911 one evening in 2008. The call was transferred from the county 911 operator to the local fire district dispatch center. The first dispatcher tried to ask the decedent some questions, but received no answer. Ultimately, he hung up and tried to call back twice, receiving a busy signal both times. When the ambulance arrived at the house, no one answered. The paramedics asked the fire dispatcher to call the decedent, but received no response. Neighbors of the decedent attempted to reach the residence, and when they were unable to, they called 911 too. Another ambulance was dispatched, but that ambulance received no answer at the house either. While that ambulance was preparing to force entry, the decedent’s husband arrived home and let them in. The decedent was found unresponsive, and she was later pronounced dead at the hospital. The plaintiff filed claims for wrongful death and survival. The defendants successfully moved for summary judgment, and the Appellate Court affirmed.

Counsel for the plaintiff began the argument, arguing that the defendants had a tort duty under both the EMS Act and the ETS Act, as well as for other reasons. Counsel argued that it made no sense for the legislature to provide for a cause of action for willful and wanton conduct if the first responders owed no duty to patients under any circumstances. Justice Theis asked whether the EMS Act was an immunity statute – wasn’t duty something different from immunity? Counsel answered that the legislature wouldn’t have provided for immunity if there wasn’t a duty – you wouldn’t need it. Justice Thomas asked what the Court should do with Zimmerman v. Village of Skokie – it would seem that the Court addressed the continued viability of the public duty doctrine there. Counsel responded that in Zimmerman, the plaintiff wanted to take advantage of the special duty exception to override what the legislature had done with the Tort Immunity Act. Here, the opposite situation existed. Justice Thomas suggested that Zimmerman gave a principled analysis of why the public duty rule had survived the abolition of sovereign immunity as well as the Tort Immunity Act – wouldn’t that rationale apply here? Counsel responded that in fact, the Court hadn’t addressed head on whether Illinois still recognized the public duty rule. Instead, the Court decided based on the Tort Immunity Act. Justice Thomas said that was where Justice Theis was coming from regarding the distinction between duty and immunity. Counsel answered that his position was that unless a duty is created under the Acts, there is no need for immunity. Even if that weren’t so, counsel argued, the defendants were all volunteers. In order to determine that issue, one looked not to the employment status of the defendants, but rather to the scope of their undertaking. Justice Theis asked counsel whether he was arguing that the duty arose from the Acts, or from the traditional four-part common law test for duty. Counsel argued that the duty flowed from both sources. When the paramedics called their dispatcher and reported that there was no patient without a factual basis for doing so, the paramedics became volunteers. Likewise, dispatchers went further than they were required to when they called the next jurisdiction with the information. The Chief Justice asked whether the dispatcher was under a duty to transfer the call. Counsel answered that at some point, the dispatcher had exceeded her duty, increasing the risk of harm to the plaintiff. Justice Karmeier asked when the voluntary duty started. Counsel answered when the dispatcher called Orland Park rather than merely transferring the call. Justice Karmeier asked whether Orland Park staff were volunteers when they received the call. Counsel answered that Orland Park was a harder case. Justice Thomas asked whether voluntary undertaking was applicable when a defendant had a legal obligation to perform. Counsel answered that the issue was whether a defendant had gone beyond the scope of his or her undertaking. Justice Thomas asked whether there was a distinction between doing what the plaintiff was supposed to do in a negligent fashion and a voluntary undertaking. Counsel answered yes.

Counsel for the county and dispatcher followed. Counsel argued that the dispatcher hadn’t performed a voluntary undertaking in responding to calls because that is her job – the statute speaks of both a transfer method and a relay method. Counsel argued that abolition of sovereign immunity impacted only one side of the analysis. Justice Theis asked counsel what was the harm of adopting the four-part test for duty. Counsel answered that uncertainty was the harm – otherwise, there would be hundreds of cases a year.

Counsel for the East Joliet Fire Protection District and the paramedics was next. Counsel argued that given the Tort Immunity Act, there is no tenable argument for a negligence duty. None of the defendants had engaged in a voluntary undertaking – all were merely doing their duty. Justice Theis asked what the need for an immunity was if there was no duty of care. Counsel answered that the Tort Immunity Act applies only to the government, not private EMS employers. The courts cannot be in the business of insuring the well-being of individual defendants. Counsel argued that the legislature has had many years to overrule the Court’s view of the public duty rule, and hasn’t done so – thus implicitly acquiescing in the Court’s view. Counsel wondered how first responders would manage with a regime where duty depended on case-by-case foreseeability. Once a paramedic starts providing treatment, counsel argued, the special duty exception applies, but until then, the public duty rule nearly always blocks a private tort suit.

Counsel for the Orland Park Fire Protection District followed. Counsel argued that one of the most important reasons to keep the public duty rule is to conserve governmental resources. The financial burden of broader tort exposure would require restrictions in emergency services, counsel argued. The public interest isn’t served, counsel argued, by allowing juries, armed with 20-20 hindsight, to second- guess discretionary acts of the defendants. If such an outcome is to be risked, the legislature should make the decision.

The sky didn’t fall in 1969 when sovereign immunity was effectively abolished by statute, plaintiffs’ counsel argued in rebuttal. Safeguards were in place – the need to prove foreseeability, the tort immunity act and the EMS and ETS Acts, limiting liability to willful and wanton conduct. Counsel concluded by arguing that the legislature had imposed a tort duty to locate the patient under the EMS Act, and the Court should not overrule that determination by imposing blanket immunity through the public duty doctrine.

We expect Coleman to be decided in four to five months.

Image courtesy of Flickr by Elliott Brown (no changes).