Over the years, the protections afforded to municipalities and public employees by the Illinois Tort Immunity Act have eroded somewhat due to various decisions extending the willful and wanton conduct exception found in 745 ILCS 10/2-202 to other provisions of the act. For instance, in Doe v. Calumet City, 161 Ill.2d 374 (1994), the Illinois Supreme Court extended the willful and wanton exception codified in section 2-202 to situations involving a police officer’s failure to provide adequate police service under section 4-102 of the Act. This was particularly troubling to municipalities, municipal employees, and their attorneys because section 4-102 did not contain an explicit willful and wanton exception. In the wake of decisions like Doe, confusion reigned. Recently however, the Illinois Supreme Court rendered a decision in Ries v. City of Chicago, and provided some clarity about whether judicially created exceptions to the Tort Immunity Act are proper under Illinois law.
In Ries, Supreme Court Docket # 109541, February 25, 2011, the plaintiffs were seriously injured when the vehicle in which they were travelling was involved in a collision with a Chicago police car that had just been stolen by Demario Lowe. The story behind how Lowe came to be driving the police car is an unusual one. Chicago police officer Sergio Oliva was in his police car on his way to get gas when he observed a group of people in the vicinity of a multi vehicle accident. Oliva stopped to investigate and observed the group holding a person, later learned to be Lowe, and Oliva was told by members of the group that Lowe was trying to flee the scene. Based on this information, Oliva placed Lowe in the backseat of his police car. Unfortunately for everyone involved, Oliva placed Lowe in the police car without handcuffs, with the keys to the car in the ignition, and with the engine of the car running. Shortly thereafter, Lowe climbed into the front seat of the car and drove away at a high rate of speed. Other officers in the area, who heard Oliva’s radio transmission that his car had been stolen, observed the vehicle and began to give chase. While fleeing from the pursuing officers in the stolen police car, Lowe collided with several parked cars, and eventually crashed into the plaintiff’s vehicle.
The plaintiffs filed a complaint in the Circuit Court of Cook County against the City of Chicago and Officer Oliva, alleging willful and wanton conduct on behalf of Oliva for failing to properly handcuff Lowe, failing to turn off his car, and failing to remove the keys from the ignition. The complaint also alleged that the City was liable for the willful and wanton conduct of its employees who failed to terminate the vehicle pursuit of Lowe when it became clear that the danger to the public was outweighed by the need to apprehend Lowe in the stolen police vehicle. During the trial of plaintiff’s claims, the trial court granted a directed verdict to Oliva for two reasons. First, on the plaintiff’s claims that Oliva had allowed Lowe to escape, the court based its ruling on 745 ILCS 10/4-106(b), which states "neither a local public entity nor a public employee is liable for any injury inflicted by an escaped or escaping prisoner." Second, the court ruled that Oliva was entitled to a directed verdict on the claims that he failed to remove the key from the ignition and kept the car running, because those claims did not rise to the level of willful and wanton conduct. Despite allowing Oliva out of the case entirely, the trial court allowed plaintiff’s claims to go to the jury against the City of Chicago only, and the jury returned a verdict against the City for a total of $4,211,142. Following the trial, the City made a motion for j.n.o.v., also known as a motion for judgment notwithstanding the verdict. The motion was denied, and the City appealed.
The City’s argument on appeal was that the trial court made several errors in interpreting how the Tort Immunity Act applied to the plaintiff’s claims. According to the City, these errors led to the erroneous denial of the motion for j.n.o.v. by the trial court. In rendering its decision, the appellate court first pointed to 745 ILCS 10/2-109, which states that a local public entity cannot be held liable for an injury resulting from an act or omission of an employee where the employee is not liable. Given this section of the act, once the trial court granted a directed verdict in favor of Oliva, it should have also granted a directed verdict to the City of those same claims. Those claims should never have gone to the jury against the City because the City was immune from any liability in accordance with the terms of 2-109. Second, the appellate court held that the City was immune from liability for any claims stemming from the failure to terminate the vehicle pursuit because 745 ILCS 10/4-106 immunizes a local public entity and/or public employee from liability for any injury caused by an escaping prisoner. The appellate court’s analysis did not stop there however. The appellate court addressed plaintiff’s argument that the willful and wanton conduct exception found in 745 ILCS 10/2-202 should be extended to section 4-106, despite the fact that 4-106 does not contain any such exception. The appellate court acknowledged that, in other cases, it had extended this exception to other provisions of the act. The appellate court acknowledged that, while such an extension was possible in certain cases based on the circumstances, it was denying to extend the willful and wanton exception here because the officers engaged in the pursuit of Lowe were not "in control of the scene of the accident" between Lowe and the plaintiffs. Based on the appellate court’s reasoning, the trial court denial of the motion for j.n.o.v. was reversed, and the plaintiffs then petitioned the Illinois Supreme Court for review.
The Illinois Supreme Court issued an opinion affirming the appellate court’s reversal of the trial court. Despite agreeing with the appellate court’s end result, the Supreme Court took issue with the reasoning employed by the appellate court in rendering its decision. The Supreme Court explained, in interpreting a provision of the Tort Immunity Act or any other statute, a court’s primary goal is to ascertain and give effect to the intention of the legislature. Ultimately, if the legislature has not seen fit to put certain language into a statute, then it is not a court’s job to invent and insert said language, even to right a perceived wrong.
Regarding the immunity afforded to the City under 4-106 because Lowe was an escaping prisoner, the Supreme Court stated, unequivocally, that the City had "absolute immunity" under that section. According to the Supreme Court, if the original jury verdict against the City were to be upheld, it would directly contradict the statute. Obviously, such a contradiction is not consistent with what the legislature intended, which was to confer immunity on local public entities and public employees for injuries caused by escaping prisoners.
Regarding the idea that the willful and wanton exception of 2-202 could be somehow be extended to other provisions of the Tort Immunity Act in which no such language existed, the Supreme Court used the strongest possible language to denounce this concept. According to the Supreme Court, the appellate court’s determination of who "had control of the scene" for the purpose of determining whether to extend the willful and wanton exception of 2-202 to 4-106 just overly complicated the analysis. Plaintiff’s argument that such an extension was possible, despite the clear, unambiguous language of the statute, was one for the legislature and not the courts. Section 4-106 applies specifically to escaping prisoners, and offers blanket immunity with no exceptions. These, according to the Supreme Court, were the only things that mattered in Ries. Furthermore, the Supreme Court held explicitly that "Section 10/2-202 does not provide a general willful and wanton exception to the other sections of the tort immunity act," and further overruled any cases, including the aforementioned Doe v. Calumet City, that held to the contrary. As a result of the Supreme Court’s ruling, judgment notwithstanding the jury’s verdict was entered in favor of the City of Chicago, the jury’s verdict was nullified, and the City did not have to pay anything to the plaintiffs.
The Supreme Court’s ruling in Ries represents a victory for municipalities and their employees. A strict reading of the Tort Immunity Act, limiting the judicially created exceptions that have cropped up in the past, allows for a clear understanding of what conduct is protected by the Act and what conduct can lead to exposure and liability. As a result of the ruling in Ries, the line between liability and immunity is more clearly drawn, at least for now.
