Harinak v. City of Chicago

Annotate this Case
Harinek v. 161 N. Clark St., No. 82155 (2/20/98)

Docket No. 82155--Agenda 8--November 1997.
GAIL P. HARINEK, Appellee, v. 161 NORTH CLARK STREET LTD.
PARTNERSHIP et al. (The City of Chicago, Appellant).
Opinion filed February 20, 1998.

JUSTICE HEIPLE delivered the opinion of the court:
The City of Chicago appeals a judgment of the appellate court reversing
the circuit court of Cook County's dismissal of count II of plaintiff Gail P.
Harinek's second-amended complaint. In addition, plaintiff seeks cross-relief
reversing the appellate court's affirmance of the trial court's dismissal of count III
of the complaint. The appellate court concluded that count II was sufficient to
allow plaintiff to maintain an action against the City for alleged negligence in
planning and conducting a fire drill, but that count III failed adequately to allege
that the City's conduct was willful and wanton. For the reasons that follow, we
hold that the complaint is insufficient to support either of these claims.

BACKGROUND
Count I of the complaint alleged that defendant 161 North Clark Street Ltd.
Partnership (the Partnership) owned and operated an office building in which
plaintiff worked. Count I further alleged that the Partnership negligently allowed
a heavy door with no window to be constructed near an elevator corridor and
failed to provide adequate warnings as to the dangerous condition of the door. The
count alleged that as result of this conduct, plaintiff was hit and injured by the
door during a fire drill.
Count II alleged that the City of Chicago's fire marshal personally planned
and conducted a fire drill in the building on April 28, 1993. Count II further
alleged that, during the fire drill, the marshal negligently directed a large group
of people, including plaintiff, to stand in the vicinity of the door, and that as a
result, plaintiff was hit and injured by the door when someone opened it without
warning. The count also alleged that the marshall was negligent in failing to
inspect the door to ascertain whether it was safe, failing to warn those passing
through and standing by the door of its danger, and failing to establish alternate
routes not involving the door for use during the fire drill.
Count III repeated the factual allegations of count II, but asserted further
that the fire marshal's conduct was willful and wanton because he was on notice
that the area in which he directed the group of people to stand was unsuitable for
that purpose.
Both the Partnership and the City moved to dismiss the complaint under
section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 1994)).
The circuit court denied the Partnership's motion to dismiss count I, but granted
the City's motion to dismiss counts II and III based on the Local Governmental
and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/2--101
(West 1994)). The court also found that there was no just cause to delay
enforcement or appeal of its order dismissing counts II and III (see 134 Ill. 2d R.
304(a)).
The appellate court reversed the circuit court's dismissal of count II, ruling
that the Act does not immunize the City from liability for the fire marshal's
conduct as described in the complaint. 283 Ill. App. 3d 491. The court first held
that sections 5--102 and 5--103(b) of the Act (745 ILCS 10/5--102, 5--103(b)
(West 1994)) are inapplicable because these sections pertain only to firefighters'
performance in fighting a fire or to the City's failure to provide adequate
personnel, equipment, or facilities for fire protection.[fn1] 283 Ill. App. 3d at
494-95. The court also held that section 2--201 of the Act (745 ILCS 10/2--201
(West 1994)) does not preclude liability because the fire marshal's conduct in
"directing plaintiff to stand behind a door, though discretionary, is not a policy
determination within the meaning of the Act." 283 Ill. App. 3d at 496. The court
affirmed, however, the trial court's dismissal of count III, holding that plaintiff's
injury was not the result of willful and wanton conduct on the part of the fire
marshal. 283 Ill. App. 3d at 497. This court allowed the City's petition for leave
to appeal (166 Ill. 2d R. 315(a)).

ANALYSIS
Discretionary Acts
The City contends that permitting it to be held liable for the injuries
plaintiff sustained during the fire drill would violate sections 2--109 and 2--201
of the Tort Immunity Act (745 ILCS 10/2--109, 2--201 (West 1994)). These
sections provide as follows:
"A local public entity is not liable for an injury resulting
from an act or omission of its employee where the employee is not
liable." 745 ILCS 10/2--109 (West 1994).
"Except as otherwise provided by Statute, a public employee
serving in a position involving the determination of policy or the
exercise of discretion is not liable for an injury resulting from his
act or omission in determining policy when acting in the exercise
of such discretion even though abused." 745 ILCS 10/2--201 (West
1994).
The Illinois Constitution of 1970 abolished sovereign immunity in Illinois,
except as the General Assembly may provide by law. Ill. Const. 1970, art. XIII,
sec. 4. Consequently, the Tort Immunity Act governs whether and in what
situations local governmental units are immune from civil liability. Epstein v.
Chicago Board of Education, 178 Ill. 2d 370, 375 (1997). In construing the Act,
our primary goal is to ascertain and give effect to the intention of the legislature.
Barnett v. Zion Park District, 171 Ill. 2d 378, 388 (1996). We will not depart
from the plain language of the Act by reading into it exceptions, limitations, or
conditions that conflict with the express legislative intent. Barnett, 171 Ill. 2d at
389.
The City argues that sections 2--109 and 2--201 of the Act immunize a
local public entity from liability if its act or omission which allegedly caused a
plaintiff's injury constituted an exercise of discretion. The City asserts that the
appellate court erred in requiring that the act or omission also had been a policy
determination. The City contends that, prior to the instant case, no court had
construed section 2--201 as requiring that a public entity's act or omission had
been both an exercise of discretion and a policy determination. The City also
argues that even if the statute is construed to require that the act or omission had
been a policy determination, the fire marshal's conduct as described in the
complaint satisfies this requirement.
Plaintiff responds that the clear language of the statute provides immunity
only when the public entity's act or omission was both an exercise of discretion
and a policy determination. Plaintiff argues that these two characteristics of a
public entity's conduct are separate and distinct, and must both be satisfied
independently for immunity to attach. Plaintiff contends further that the appellate
court correctly determined that the fire marshal's conduct in this case did not
constitute a policy determination, but asserts that the court erred in holding that
the marshal's conduct was discretionary.
This court has not previously addressed the issue of whether section 2--201
requires that a public entity's act or omission be both an exercise of discretion and
a policy determination. By its plain language, the statute immunizes a public
employee who serves in "a position involving the determination of policy or the
exercise of discretion" from liability for injuries allegedly caused by the
employee's "act or omission in determining policy when acting in the exercise of
such discretion." 745 ILCS 10/2--201 (West 1994). This language makes clear that
the statute is concerned with both the type of position held by the employee and
the type of action performed or omitted by the employee.
According to the statute, an employee may be granted immunity if he holds
either a position involving the determination of policy or a position involving the
exercise of discretion. The statute is equally clear, however, that immunity will not
attach unless the plaintiff's injury results from an act performed or omitted by the
employee in determining policy and in exercising discretion. The employee's
position thus may be one which involves either determining policy or exercising
discretion, but, as the appellate court correctly held, the act or omission must be
both a determination of policy and an exercise of discretion.
In the instant case, plaintiff apparently concedes that the fire marshal's
position involves either the determination of policy or the exercise of discretion.
Plaintiff contends, however, that the appellate court correctly determined that the
acts and omissions of the marshal described in the complaint were not
determinations of policy. We disagree. The appellate court held that the fire
marshal's act of "directing plaintiff to stand behind a door, though discretionary,
is not a policy determination within the meaning of the Act." 283 Ill. App. 3d at
496. In so holding, the appellate court mischaracterized the nature of the conduct
described in the complaint.
The complaint alleges that the City of Chicago fire department "planned,
controlled, operated, and implemented" a fire drill at plaintiff's place of
employment on the date she was injured. The complaint further alleges that the
fire marshal assembled plaintiff and her fellow employees in a corridor near the
door which struck plaintiff, but that the marshal failed to place any warnings on
the door and failed to provide adequate alternate routes for use during the fire
drill. The complaint also alleges that the assembling of plaintiff and her fellow
employees in the corridor in the vicinity of the door was carried out pursuant to
a plan developed by the marshal before the fire drill began.
We hold that these allegations describe acts and omissions of the fire
marshal in determining fire department policy. This court has previously defined
"policy decisions made by a municipality" as "those decisions which require the
municipality to balance competing interests and to make a judgment call as to
what solution will best serve each of those interests." West v. Kirkham, 147 Ill. 2d 1, 11 (1992). The conduct described in the instant complaint falls squarely within
this definition. The fire marshal is responsible for planning and conducting fire
drills in the City of Chicago. In planning these drills, the marshall must balance
various interests which may compete for the time and resources of the department,
including the interests of efficiency and safety. The alleged acts and omissions
outlined in the complaint, such as the marshal's decisions regarding where to
assemble the participants and whether to provide warning signs and alternate
routing, were all part of his attempts to balance these interests. Accordingly, these
acts and omissions were undertaken in determining policy within the meaning of
the statute.
Plaintiff contends in the alternative that the appellate court erred in holding
that the fire marshal's conduct was discretionary. In construing section 2--201 of
the Act, this court has held that
"discretionary acts are those which are unique to a particular public
office, while ministerial acts are those which a person performs on
a given state of facts in a prescribed manner, in obedience to the
mandate of legal authority, and without reference to the official's
discretion as to the propriety of the act." Snyder v. Curran
Township, 167 Ill. 2d 466, 474 (1995).
Under these standards, the fire marshal's conduct described in the complaint
clearly constituted an exercise of discretion. The marshal bears sole and final
responsibility for planning and executing fire drills in buildings throughout
Chicago. He is under no legal mandate to perform these duties in a prescribed
manner; rather, he exercises his discretion in determining how, when, and where
to hold drills such as the one in which plaintiff was injured. The appellate court
was therefore correct in concluding that the fire marshal's conduct was
discretionary.
Because the fire marshal occupied a position involving the determination
of policy or the exercise of discretion, and because his conduct as described in the
complaint constituted acts or omissions in determining policy and exercising
discretion, section 2--201 of the Act immunizes the City from liability for
plaintiff's injuries.

The "Special Duty" Doctrine
Plaintiff contends that even if the fire marshal's conduct is immunized by
section 2--201 of the Act, the City may nevertheless be held liable because the
marshal owed plaintiff a "special duty" to protect her from the injuries which she
suffered. The City responds that when a public entity is found to be immunized
from liability by the Act, courts are not authorized to make exceptions to the Act
which would nevertheless permit the imposition of liability.
Under the doctrine of sovereign immunity, a governmental unit in Illinois
was immune from tort liability. Barnett v. Zion Park District, 171 Ill. 2d 378, 385
(1996). In 1959, however, this court abolished the sovereign immunity of
municipal corporations in tort actions. Molitor v. Kaneland Community Unit
District No. 302, 18 Ill. 2d 11 (1959); see also Walker v. Forest Preserve District,
27 Ill. 2d 538, 540 (1963) (holding that in Molitor "the sovereign immunity of
municipal corporations in tort actions was abolished"). In response to Molitor, the
General Assembly in 1965 enacted the Local Governmental and Governmental
Employees Tort Immunity Act (745 ILCS 10/1--101 et seq. (West 1994)). The Act
adopted the general principle from Molitor that local governmental units are liable
in tort, but limited this liability with an extensive list of immunities based on
specific government functions. Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 506 (1990).
The ratification of the Illinois Constitution of 1970 validated both Molitor
and the Tort Immunity Act. Article XIII, section 4, of the Illinois Constitution
reads as follows: "Except as the General Assembly may provide by law, sovereign
immunity in this State is abolished." Ill. Const. 1970, art. XIII, sec. 4. This
provision embodies the presumptive rule from Molitor that units of local
government are subject to tort liability, but "makes the General Assembly the
ultimate authority" in determining whether such a unit is nevertheless immune
from liability. Burdinie, 139 Ill. 2d at 510. Therefore, governmental units are now
liable in tort on the same basis as private tortfeasors unless a valid statute dealing
with tort immunity imposes conditions upon that liability. Barnett, 171 Ill. 2d at
386. Where such statutory conditions are found to exist, tort liability is precluded.
The "special duty" doctrine which plaintiff seeks to apply in the instant
case originated as an exception to the common law "public duty" rule. According
to the public duty rule, a municipality could not be held liable for its failure to
provide adequate governmental services, such as police and fire protection. Huey
v. Town of Cicero, 41 Ill. 2d 361, 363 (1968). The rationale for this rule was that
the duty of a municipality to provide governmental services was owed to the
public at large and therefore took precedence over any duty owed to a particular
plaintiff. See Calloway v. Kinkelaar, 168 Ill. 2d 312, 334 (1995) (Freeman, J.,
specially concurring); Leone v. City of Chicago, 156 Ill. 2d 33, 47 (1993)
(Bilandic, J., dissenting); Gebhardt v. Village of LaGrange Park, 354 Ill. 234,
237-38 (1933).
Despite abolishing common law sovereign immunity in Molitor, this court
has nevertheless retained the public duty rule. As the court explained in Huey, the
public duty rule exists "[i]ndependent of *** common-law concepts of sovereign
immunity." Huey, 41 Ill. 2d at 363. Therefore, although, absent a statutory
immunity, governmental units are now liable in tort on the same basis as private
tortfeasors, the public duty rule nevertheless prevents such units from being held
liable for their failure to provide adequate governmental services.
In 1966, the appellate court first recognized an exception to the public duty
rule now known as the "special duty" doctrine. In Gardner v. Village of Chicago
Ridge, 71 Ill. App. 2d 373 (1966), the court held that, notwithstanding the public
duty rule, police officers employed by a municipality could be held liable for their
failure to protect a plaintiff from injury by others if the facts of the case showed
that the officers undertook to exercise a particular duty of care or custody over the
plaintiff. Gardner, 71 Ill. App. 2d at 378. Subsequently, in 1968, this court
acknowledged that an exception to the public duty rule exists where "the
municipality was under a special duty to a particular individual." Huey, 41 Ill. 2d
at 363.
Plaintiff in the instant case urges us to apply the special duty doctrine to
override the immunity granted the City by the Tort Immunity Act. As this court
emphasized in Huey, however, the basis for the public duty rule is "[i]ndependent
of statutory *** concepts of sovereign immunity." Huey, 41 Ill. 2d at 363. As we
have more recently explained, "the existence of a duty and the existence of an
immunity are separate issues." Barnett, 171 Ill. 2d at 388. Therefore, the question
of whether the City owed plaintiff a duty under the special duty doctrine has no
bearing on the separate question of whether the Act immunizes the City from
liability for plaintiff's injuries.
As noted previously, article XIII, section 4, of the Illinois Constitution
"makes the General Assembly the ultimate authority in determining whether a unit
of local government is immune from tort liability." Burdinie, 139 Ill. 2d at 510.
Thus, when a court finds, on the facts of a particular case, that the General
Assembly has granted a public entity immunity from liability, the court may not
then negate that statutory immunity by applying a common law exception to a
common law rule. Doing so would violate not only the Illinois Constitution's
provision governing sovereign immunity (Ill. Const. 1970, art. XIII, sec. 4), but
also the Constitution's separation of powers clause, which provides that no branch
of government "shall exercise powers properly belonging to another." Ill. Const.
1970, art. II, sec. 1. The special duty doctrine simply allows courts to impose
liability upon a municipality by making an exception to the public duty rule in
cases in which the legislature has not granted immunity to the municipality. Thus,
the special duty doctrine may not operate to impose liability upon a public entity
after a court has found that entity immune from liability under the Tort Immunity
Act. Previous holdings to the contrary by this court and the appellate court are
hereby overruled.
In the instant case, because we find that the Act immunizes the City from
liability for plaintiff's injuries, the question of whether the fire marshal had a
special duty to plaintiff is irrelevant.

Willful and Wanton Conduct
Plaintiff also seeks cross-relief reversing the appellate court's holding that
the fire marshal's alleged conduct was not willful and wanton. Even willful and
wanton conduct, however, cannot deprive a municipality of an immunity granted
by section 2--201 of the Act (745 ILCS 10/2--201 (West 1994)). In re Chicago
Flood Litigation, 176 Ill. 2d 179, 196 (1997). Because we find that the City is
immune from liability under section 2--201, it is unnecessary for us to consider
whether the fire marshal's alleged conduct was willful and wanton.

CONCLUSION
For the reasons stated, we reverse the appellate court's holding that count
II of the complaint was sufficient to state a cause of action against the City, and
affirm the circuit court's dismissal of that count. We also affirm the judgments of
the appellate and circuit courts dismissing count III of the complaint.

Appellate court judgment affirmed in part
and reversed in part;
circuit court judgment affirmed.

JUSTICE BILANDIC, specially concurring:
I fully concur in the majority opinion, with one exception. The majority
interprets section 2--201 of the Tort Immunity Act (745 ILCS 10/2--201 (West
1994)) as requiring an analysis of (1) the type of position held by the employee
and (2) the type of action performed or omitted by the employee. Slip op. at 4-5.
As to the second inquiry, the type of action involved, the majority holds that
immunity will not attach unless the injury at issue resulted from an act performed
or omitted by the employee in determining policy and in exercising discretion.
Slip op. at 4. I disagree. I would hold that section 2--201 does not require that the
act or omission satisfy the independent requirement of being a policy
determination before immunity will attach.
As the majority concedes, this court has never before determined whether
section 2--201 requires that a public entity's act or omission be both an exercise
of discretion and a policy determination. Slip op. at 4. In my view, this is because
the phrase "exercise of discretion" in section 2--201 has been readily understood
by Illinois courts as encompassing policy determinations. In other words, the
phrase "policy determination" in section 2--201 has not been understood as
creating a separate and distinct element that must be satisfied independently for
immunity to attach. See Epstein v. Chicago Board of Education, 178 Ill. 2d 370,
381 (1997); In re Chicago Flood Litigation, 176 Ill. 2d 179, 193-95 (1997);
Snyder v. Curran Township, 167 Ill. 2d 466 (1995); Mora v. State, 68 Ill. 2d 223,
234 (1977).
Nor does the plain language of section 2--201 support the majority's
holding. Section 2--201 provides in relevant part:
"[A] public employee serving in a position involving the
determination of policy or the exercise of discretion is not liable
for an injury resulting from his act or omission in determining
policy when acting in the exercise of such discretion even though
abused." (Emphasis added.) 745 ILCS 10/2--201 (West 1994).
The majority's interpretation of this language limits immunity to injuries resulting
from policy decisions. This interpretation renders section 2--201's reference to the
"exercise of such discretion" mere surplusage, because policy decisions are always
discretionary. In my view, if the legislature had intended to immunize only
injuries resulting from policy decisions, it would have written a shorter provision
plainly stating this intent. The General Assembly, however, conferred immunity
on employees who are "serving in a position involving the determination of policy
or the exercise of discretion." Additionally the General Assembly provided
immunity for any "act or omission in determining policy when acting in the
exercise of such discretion." (Emphasis added.) This language equates
"determining policy" with the actual "exercise of such discretion." The use of the
modifier term "such" makes clear that the General Assembly did not consider
"determining policy" to be separate and distinct from what constitutes an exercise
of discretion. Therefore, the language of section 2--201, when considered as a
whole, manifests the General Assembly's intent to immunize all injuries resulting
when certain public employees exercise their discretion.
The majority's interpretation of section 2--201 creates a new distinction
between policy determinations and other discretionary decisions and requires that
both features be present before immunity will attach. I disagree with this
interpretation, for the reasons stated. Nonetheless, I concur in the majority's
judgment because the fire marshal's decisions under which the plaintiff rests her
claim against the City of Chicago were discretionary and, therefore, immunity
attaches under sections 2--109 and 2--201 of the Tort Immunity Act.

CHIEF JUSTICE FREEMAN joins in this special concurrence.

JUSTICE NICKELS, also specially concurring:
I agree that plaintiff's allegations of negligence describe discretionary acts
of the fire marshal performed in the execution of governmental policy. Therefore,
I agree with the majority's conclusion that the City is presumptively immune
pursuant to the Tort Immunity Act. However, I do not agree with the majority's
treatment of the special duty doctrine. I believe that the special duty doctrine
should remain viable as a judicial exception to municipal immunity absent some
legislative action abrogating the doctrine.
If we were writing upon a clean slate, I would be inclined to agree
generally with the analysis presented in the majority opinion relating to the special
duty doctrine. The special duty doctrine should have died as a means of evading
municipal immunity with the passage of the Tort Immunity Act in 1965. As this
court did not even acknowledge the doctrine until 1969 (see Huey v. Town of
Cicero, 41 Ill. 2d 361 (1968)), the special duty doctrine should have died before
it was born. It did not.
At this point, countless cases have applied the special duty doctrine for a
period of over 30 years, and it has become engrafted with the Tort Immunity Act.
Unlike the majority, I am also compelled to acknowledge that this court has
already considered arguments relating to the questionable validity of the doctrine
and pronounced that the legislature is the appropriate body to bring about any
abrupt change in such long-standing public policy relating to municipal immunity.
At its heart, the special duty doctrine is a means of establishing a duty
where at common law none would exist under the public duty rule. At common
law, municipalities in Illinois owed no duty to the public to supply police or fire
protection. Santy v. Bresee, 129 Ill. App. 3d 658, 661 (1984). This "public duty"
rule prevented a plaintiff's recovery for negligence. Porter v. City of Urbana, 88
Ill. App. 3d 443, 445 (1980). The purpose of the public duty rule is clear:
municipalities must not be held as insurers for every crime or fire that may occur
in areas under municipal control.
The majority is correct to point out that the special duty doctrine operates
as an exception to the public duty rule. The special duty doctrine was a
recognition that, under certain circumstances, a municipality may impliedly
undertake a duty to protect a specific individual from harm. Courts have created
a four-part test to determine whether to apply negligence principles to municipal
services: (1) the municipality must be uniquely aware of the particular danger or
risk to which plaintiff is exposed; (2) there must be specific acts or omissions on
the part of the municipality; (3) the specific acts must be affirmative or willful in
nature; and (4) the injury must occur while the plaintiff is under the direct and
immediate control of municipal employees or agents. Burdinie v. Village of
Glendale Heights, 139 Ill. 2d 501, 507 (1990). This court has further interpreted
the control element to require that "the public employee initiates the circumstances
which create the dangerous situation." Burdinie, 139 Ill. 2d at 525-26.
The special duty doctrine did not merely serve to create a duty. Where
shown, the existence of a special duty also constituted an exception to municipal
immunity. This court abolished the common law doctrine of sovereign immunity
for municipal corporations in Molitor v. Kaneland Community Unit District No.
302, 18 Ill. 2d 11 (1959). As the majority points out, the 1970 Constitution
confirmed Molitor and expressly left the issue of governmental immunities to the
General Assembly. Ill. Const. 1970, art. XIII, sec. 4. Illinois courts, however,
continued to apply the special duty doctrine as an exception to the statutory Tort
Immunity Act. Since 1970, scores of cases have applied the special duty doctrine
as a viable exception to municipal immunity. See Calloway v. Kinkelaar, 168 Ill. 2d 312, 339 n.1 (1995) (Freeman, J., specially concurring) (collecting cases).
With this history, we do not write upon a clean slate. Unlike the majority,
I am reluctant to erase all that has been written without some reasonable impetus
for change. I would also note that this court has only recently again acknowledged
the continued viability of the special duty doctrine as an exception to the
immunities granted in the Tort Immunity Act. In Burdinie v. Village of Glendale
Heights, 139 Ill. 2d 501, 511 (1990), this court stated:
"We further recognize that Illinois courts have discussed the
special duty exception to the defenses and immunities provided
under the Tort Immunity Act in cases decided both before and after
the ratification of the present Illinois Constitution." (Emphasis
added.)
The court in Burdinie went on to examine the four prongs of the special duty
doctrine, refusing to relax the requirements for evading the immunities granted by
the Tort Immunity Act. The court concluded that:
"the constitutional provision which expressly grants the General
Assembly control over municipal immunity convinces us that the
legislature is the appropriate body to alter any existing exception to
municipal tort immunity as contained in the Tort Immunity Act."
(Emphasis added.) Burdinie, 136 Ill. 2d at 520.
Thus, this court in Burdinie already determined that the consistent
application of the special duty doctrine in so many cases over so many years
should not be judicially brushed aside. Despite the questionable genesis of the
special duty doctrine, I consider the majority's reversal in this regard to be an
affront to principles of stare decisis. In addition, the legislature has apparently
acquiesced in the continued application of the special duty doctrine by failing to
take up this court's invitation to address it through the legislative process. See
Charles v. Seigfried, 165 Ill. 2d 482, 492 (1995).
In passing, I also question the logic supporting the majority's conclusion
that it was the Constitution of 1970 which constituted the death knell of the
special duty exception to municipal immunity. In 1965, the General Assembly
enacted the first comprehensive version of the Local Governmental and
Governmental Employees Immunity Act. Thus, the legislature acted to immunize
municipalities and their agents prior to the ratification of the 1970 Constitution,
and its provision abrogating sovereign immunity. Presumably, the special duty
doctrine should have died as a means of evading municipal immunity with the
passage of the Tort Immunity Act in 1965; the ratification of the 1970
Constitution is irrelevant.
In closing, I question why the majority need reach the issue of the
constitutionality of the special duty doctrine in this case at all. It is well settled
that a court should avoid constitutional issues where they are not necessary to the
disposition and the case can be decided on nonconstitutional grounds. In re S.G.,
175 Ill. 2d 471, 479 (1997). Plaintiff cannot establish a special duty as a matter
of law because the fire marshal was not uniquely aware of the danger from the
design of the door. In fact, even accepting the allegations in plaintiff's complaint,
it would appear that the fire marshal was completely oblivious to the nature of the
risk of harm in ordering the plaintiff to stand near the door. I would reject
application of the special duty doctrine on this basis alone. For this reason, I
concur in the judgment of the majority dismissing plaintiff's complaint.

JUSTICE McMORROW, concurring in part and dissenting in part:
I concur in the opinion of my colleagues in all but one respect: I do not
agree with the majority's conclusion that willful and wanton governmental
misconduct cannot deprive a municipality of an immunity granted by section 2--
201 of the Local Governmental and Governmental Employees Tort Immunity Act
(the Act) (745 ILCS 10/2--201 (West 1994)).
The majority again holds that governmental willful and wanton misconduct
is immunized from liability unless the statutory immunity provision contains an
express exemption for such willful and wanton conduct. As set forth more fully
in my separate opinions in Barnett v. Zion Park District, 171 Ill. 2d 378, 399
(1996) (McMorrow, J., dissenting), and In re Chicago Flood Litigation, 176 Ill. 2d 179, 213 (1997) (McMorrow, J., concurring in part and dissenting in part),
there are cogent reasons why the rationale underlying grants of governmental
immunity for simple negligence should not be impliedly expanded to reach willful
and wanton or intentional misconduct. Traditionally, public entities were
granted immunities not enjoyed by private entities on the basis that significant
expense and burdens may be placed upon the government when lawsuits against
public entities are permitted without restriction. In my view, if the evidence shows
that the public entity engaged in conduct showing an utter indifference to, or
conscious disregard of, the safety of others, then the public entity is not
immunized from liability for its willful and wanton misconduct. I continue to
adhere to the view that if the Tort Immunity Act is silent on the question of
whether governmental willful and wanton misconduct is exempt from immunity,
it should not be assumed that such legislative silence translates into a positive or
unambiguous intent to grant unconditional immunity.
For the reasons stated, I concur in part and dissent in part from the opinion
of the majority.

JUSTICE HARRISON, dissenting:
The majority's discussion of the Local Governmental and Governmental
Employees Tort Immunity Act (745 ILCS 10/1--101 et seq. (West 1994)) is telling
in its omission of an important and well-established principle. Because the Act is
in derogation of common law, it must be strictly construed against the local public
entity or public employee. Aikens v. Morris, 145 Ill. 2d 273, 278 (1991); Snyder
v. Curran Township, 167 Ill. 2d 466, 477 (1995). By ignoring this principle, my
colleagues are able to invest section 2--201 with a meaning so broad as to
encompass nearly every official decision made by a municipal employee whose
responsibilities include the determination of policy. The General Assembly never
intended to confer such blanket immunity, and such immunity is not necessary in
order to protect public entities from liability arising from "the operation of
government," which is the purpose of the Tort Immunity Act (745 ILCS 10/1--
101.1(a) (West 1994)).
Deciding to conduct fire drills, establishing when fire drills should be
scheduled, formulating guidelines for how fire drills should be carried out, these
can all legitimately be regarded as involving matters of City policy. Simply telling
a person to stand in a particular place on a particular day when a drill is being
carried out, as the marshal is alleged to have done here, cannot. The marshal's
instructions to plaintiff, and his attendant failure to give warnings or provide
adequate alternate routes, involved nothing more than the exercise of discretion
in implementing the City's fire drill policy. That is not enough to invoke section
2--201's immunity. As the majority itself correctly recognizes, there must be both
an exercise of discretion and a determination of policy. Slip op. at 5.
Because plaintiff's injury cannot be said to have resulted from the fire
marshal's act or omission in determining policy, the appellate court was correct
in concluding that section 2--201 does not immunize the City from liability for the
fire marshal's actions. I would therefore affirm the appellate court's judgment
reversing the dismissal of count II.
The absence of section 2--201 immunity also means that we should review
the sufficiency of count III of plaintiff's complaint, which seeks recovery based
on willful and wanton conduct. Contrary to the appellate court, I believe that the
facts alleged in plaintiff's complaint would, if true, establish that the fire marshal's
actions exhibited a reckless disregard for the safety of others. The appellate court's
judgment affirming the dismissal of count III should therefore be reversed.
Without section 2--201 immunity, there is no need to address the special
duty doctrine. Because the majority has discussed it at some length, however, I
feel that some comment is necessary.
Those who have followed this court's recent pronouncements on the
doctrine will quickly see that the majority's discussion today presents a break with
how the special duty question has been viewed. Although it gives no attribution,
the majority's analysis appears to be derived from Justice Bilandic's dissenting
opinion in Leone v. City of Chicago, 156 Ill. 2d 33 (1993). In that dissent, Justice
Bilandic postulated that the special duty doctrine was not, in fact, an exception to
the statutory immunities set forth in the Tort Immunity Act. Leone, 156 Ill. 2d at
47-48 (Bilandic, J., dissenting). Until today, however, the law in Illinois was to
the contrary. The rule was that where the special duty doctrine applied, it enabled
a plaintiff to escape the statutory immunities granted by the General Assembly to
municipalities and their employees. Doe v. Calumet City, 161 Ill. 2d 374, 390
(1994).
In Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 507 (1990),
this court held that "the tort liability of a municipality *** is expressly controlled
by constitutional provision and legislative prerogative as embodied in the Tort
Immunity Act." I continue to adhere to that view. Accordingly, I am in complete
agreement with the proposition that under section 4 of article XIII of our state's
constitution, it is the function of the General Assembly and not the courts to
define when and under what circumstances sovereign immunity applies.
This construction of the law does not, however, command the conclusion
that the special duty exception has been supplanted by statute. To the contrary, I
believe that the General Assembly has recognized the continued viability of the
doctrine and understands it as having been incorporated into the statutory scheme
contained in the Tort Immunity Act.
The special duty exception to sovereign immunity is a well-established
doctrine that has been consistently recognized by our court and by the appellate
court in the decades following promulgation of the Tort Immunity Act and the
subsequent ratification of the Illinois Constitution of 1970. Most of the decisions
of our court discussing the exception have been cited earlier in this disposition or
by the majority. The appellate court cases invoking the doctrine are too numerous
to cite.
The General Assembly is presumed to know the construction the courts
have placed upon a statute (In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 388 (1992)) and is therefore presumed to know of the courts' continued
recognition of the special duty doctrine as an exception to the immunities set forth
in the Tort Immunity Act. If the General Assembly believed that the special duty
exception was inconsistent with the Act and constituted an improper encroachment
upon its authority for defining the terms of sovereign immunity, it could have
revised the statute to abolish the doctrine. It has not done so. The Tort Immunity
Act has been amended on several occasions since it was originally enacted (see,
e.g., 745 ILCS 10/2--202, Historical & Statutory Notes, at 806 (Smith-Hurd 1993);
745 ILCS 10/2--210, Historical & Statutory Notes, at 199 (Smith-Hurd Supp.
1997); 745 ILCS 10/4--105, Historical & Statutory Notes, at 868 (Smith-Hurd
1993)), but none of those amendments have limited or altered the special duty
exception in any way.
Under these circumstances, I believe that the General Assembly has
acquiesced in the view that the statutory immunities set forth in the Tort Immunity
Act remain subject to the special duty exception. See Charles v. Seigfried, 165 Ill. 2d 482, 492 (1995). The courts' explication of the law has, in effect, become part
of the statute. People v. Drakeford, 139 Ill. 2d 206, 215 (1990). For us to depart
from that position is tantamount to amending the statute. The power to make such
amendments, however, lies with the legislature, not the courts. Independent Voters
v. Illinois Commerce Comm'n, 117 Ill. 2d 90, 100 (1987). The majority is
therefore wrong to abruptly overrule the decades of precedent on the subject. As
Justice Nickels aptly observes in his special concurrence, the majority's actions
are an affront to principles of stare decisis. But then, what is new? People v.
Burgess, 176 Ill. 2d 289, 324-26 (1997) (Harrison, J., dissenting).
Finally, I note that there is some unintentional irony in the majority's
decision. In treating the fire marshal's bad judgment as a matter of municipal
policy, the majority no doubt hopes to further its agenda of protecting the
government from liability. Its decision may, however, have just the opposite
effect. By adopting an expansive definition of what constitutes municipal policy,
the majority's opinion may inadvertently have just made it easier for plaintiffs to
proceed against municipalities under 42 U.S.C. sec. 1983 (1982), to which state
immunity statutes, including the Tort Immunity Act, provide no defense (see
Weiss v. Village of Downers Grove, 225 Ill. App. 3d 466, 469 (1992); Anderson
v. Village of Forest Park, 238 Ill. App. 3d 83, 92 (1992)).
Under 42 U.S.C. sec. 1983 (1982), municipal liability for constitutional
violations is conditioned on a showing that the violations were caused by an
official policy, custom or usage of the municipality. Doe v. Calumet City, 161 Ill. 2d at 401-02. Establishing that a constitutional violation resulted from official
policy has historically been one of the most serious obstacles confronting plaintiffs
seeking to recover from municipalities under the statute. With today's broadened
definition of what constitutes official policy, that hurdle has been lowered
substantially. While that will not aid the plaintiff in this case, who has claimed no
constitutional violation, I can see that it may be of considerable usefulness to
others in cases to come.


[fn1] The City has not addressed sections 5--102 and 5--103(b) in its current
arguments before this court.