Appellate court considers governmental tort immunity

Marty Dolan, principal at Dolan Law, and his associate Karen Munoz represent victims of wrongful death and personal-injury. His column “Law and Wellness” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

The Illinois Appellate Court recently made an important decision concerning governmental tort immunity. While, much of the quite lengthy opinion focuses on issues relating to contribution and the limitations period in the immunity statute, it is the decision regarding immunity issues that is, perhaps, of most interest.

The case arose out of an auto accident where the plaintiff sued the defendant, alleging the defendant was negligent in the operation of a motor vehicle while driving drunk. The defendant then filed a third-party counterclaim for contribution against the city, claiming that the city negligently maintained a water main underneath the road on which the accident took place. The water main, it was claimed, leaked, causing an ice patch to form that the defendant’s vehicle skidded onto before crashing into the plaintiff’s vehicle.

The jury ultimately found the defendant 65 percent liable and the city 35 percent liable for the accident. The trial court further found that, based on Section 2 of the Contribution Act, the defendant was not entitled to contribution from the city unless he paid more than his pro rata share of liability. After the city’s motion to dismiss was denied, the plaintiff sought leave to amend its complaint to add the city as a defendant directly.

The trial court ruled that the plaintiff’s claim was barred because it attempted to file against the city after the expiration of the one-year immunity period set out in the Immunity Act, in contrast to the defendant’s permissible contribution claim, which was filed in a timely fashion.

Second, despite some arguable ambiguity in the Contribution Act, the trial court ruled the plaintiff was not entitled to recovery from the city. The Contribution Act does provide that defendants who are more than 25 percent liable for an injury are jointly and severally liable for the full amount of nonmedical damages. However, the dispute came down to whether or not the term defendant in that context encompasses third-party defendants, such as the city. Ultimately, the court ruled that it is a fundamental principle that a plaintiff may not recover against a party against whom the plaintiff did not seek relief. Further, as a matter of statutory interpretation, the statute did not intend to include third-party defendants within the definition of defendant in such circumstances.

Finally, on the immunity issue, the court ruled that the city was not entitled to discretionary act immunity. The city argued that a plan for improvement of the city’s water distribution system, made and carried out by one of its employees, was ongoing at the time of the accident and that the plan involved the exercise of discretion on the part of the city employees. However, based on these facts, the court found that, while there was an improvement plan in place for River Street, there was no such plan.

The city tried to argue that an improvement plan for one street encompassed another. Further, it tried to argue that one employee was exercising his discretion despite the fact that he was fourth in the hierarchy of decision-makers in relation to public improvements after the city council and others. The Tort Immunity Act is already wide enough in its scope. Its terms should not be handled in such a manner to find municipalities immune from suit in all cases. In this case, the city sought immunity in a scenario where it was never intended to apply and the court wisely rejected its arguments.


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