A long-standing common law principle called the “public duty rule” holds that local government entities and their employees owe no tort duty of care to individual citizens to provide governmental services such as police and fire protection – such duties are owed to the public as a whole. In the closing days of its January term, a sharply divided Illinois Supreme Court abolished the public duty rule in Coleman v. East Joliet Fire Protection District. Our detailed report on the underlying facts and lower court decisions in Coleman is here. Our report on the oral argument is here.
It has been apparent for some time that the Court was sharply divided about Coleman. By the time the opinion was handed down, it had been under submission for 311 days since oral argument – more than five months above the Court’s average even for non-unanimous decisions. The lead opinion carried the signatures of only two Justices, Justices Kilbride and Burke. Justices Freeman and Theis signed a special concurrence agreeing with the judgment, but disagreeing almost entirely with the rationale for discarding the public duty rule. And – in a very rare moment of party-line division on the Court – Chief Justice Garman and Justice Karmeier joined a spirited dissent by the third Republican Justice on the Court, Justice Thomas.
Coleman began on a June evening in 2008. Will County, where the decedent lived, was experiencing a major tornado outbreak. Eight tornadoes were sighted that afternoon and evening over northeast Illinois. Just after 6 p.m., the decedent called 911 and asked for an ambulance. When the ambulance arrived at the decedent’s home, they found the doors locked, and although they rang the doorbell and pounded on the doors, received no answer. The ambulance attendants called their supervisor, who directed them to go back into service. After the ambulance left, neighbors called 911, and a second ambulance was dispatched. Unfortunately, this ambulance was given an incomplete address, leading to further delays. Finally, the decedent’s husband arrived home and let them in the house. The crew found the decedent unresponsive, and she was pronounced dead at the hospital.
The decedent’s estate filed suit, alleging negligence and willful and wanton misconduct. The negligence counts were dismissed by agreement pursuant to statutory immunity, and the trial court dismissed the willful and wanton counts under the public duty rule. The Appellate Court affirmed, but the Supreme Court narrowly reversed.
The plurality opinion by Justice Kilbride begins by tracing the roots in Illinois law of the public duty rule and of sovereign immunities. The plurality acknowledges that most states continue to adhere to the public duty rule – and even in the relatively few exceptions, the legislature has in several cases acted to overturn judicial decisions abolishing or limiting the rule.
Nevertheless, the plurality concludes that the rule should be abolished for three reasons: (1) the jurisprudence applying the rule and its special duty exception has become “muddled and inconsistent”; (2) application of the rule is inconsistent with the legislature’s acknowledgement of limited liability for willful and wanton misconduct; and (3) the legislature’s enactment of statutory immunities has rendered the rule obsolete.
Justice Freeman and Justice Theis concurred only in the judgment, instead signing a special concurrence. According to the concurring Justices, the plurality went astray at their first step when they argued that the public duty rule and sovereign immunity were analytically distinct concepts. According to the dissenters, the rule was clearly rooted in sovereign immunity. And since sovereign immunity was abolished in Illinois by the 1970 constitution, the rule should have been discarded with it.
Justice Thomas’ dissent begins by emphasizing that the plurality opinion is not a majority opinion for the Court. “Justice Kilbride’s analysis in fact garners less support than even this dissent,” the dissenters write. The dissenters strongly condemned the plurality’s three reasons for abandoning the public duty rule: “they are not compelling, not in the least. In fact, they are not ‘reasons’ at all but rather transparent ex post rationalizations for a foregone conclusion, none of which holds up to even a moment’s scrutiny.”
With respect to the first reason cited by the plurality – that application of the rule has become “muddled and inconsistent” – the dissenters note that the plurality’s main support is a California Supreme Court decision written fifteen years before the main Illinois public duty rule decision. Not only that, but “the quoted portion of the California Supreme Court decision hardly evinces a jurisprudence run amok,” according to the dissenters. Rather, the decision merely notes that at times, for reasons of expediency, courts dispose of cases on immunity grounds rather than lack-of-duty – essentially holding that even if a duty existed in a particular case, there could be no liability because of immunity. “Suffice it to say,” the dissenters continue, “if such practice renders each of these bodies of law ‘muddled and inconsistent’ to such a degree that the protections of stare decisis no longer operate, then the common law of Illinois site on the verge of wholesale collapse.”
Nor are the dissenters persuaded by the proposition that the rule is inconsistent with statutory immunity. First, statutory immunities were granted years before the public rule was squarely reaffirmed by the Court. Second, lack of duty and statutory immunity are two entirely different things, they argue – exactly the reason why the plurality rejected the plaintiffs’ argument that the end of statutory immunity doomed the public duty rule. The dissenters dismiss the third reason given by the plurality as “just another way of saying that the public duty rule did not survive the passage of the Tort Immunity Act.”
The dissent then turns to the special concurrence. Quoting the concurring Justices’ view that the public duty rule has always been firmly rooted in the concept of sovereign immunity, the dissenters argue that previous courts have resolved those issues to the contrary.
The dissent closes with a pointed condemnation of the plurality and concurrence, taken with minor emendations from a 2000 dissent by Justice Freeman, the author of the special concurrence in Coleman:
[T]oday’s decision demonstrates that ‘power, not reason, is the new currency of this court’s decisionmaking’ . . . [N]either the law nor the facts supporting the [public duty rule] underwent any change since the last time that this court issued its last [public duty rule] case . . . in 1998. Only the personnel of this court did. One must now wonder how many of our previous decisions . . . will be similarly overruled on the basis of a change in court personnel . . . It is obvious to me, at least, that four members of this court are willing to discard any principle of . . . law that, in the past, was recognized . . . and with which four justices currently disagree. This does not bode well for the future.