Municipalities have long enjoyed immunities from different types of lawsuits. The Illinois Local Governmental and Governmental Employee Tort Immunity Act ("Tort Immunity Act") provides municipalities and their employees various limited and absolute immunities. However, a recurring problem in construing the Tort Immunity Act is how to handle two separate immunities that facially seem to apply, but one provides an exception to immunity.
Specifically, the Tort Immunity Act provides absolute immunity for the failure to provide police protection, or adequate protection, the failure to prevent a crime or to solve a crime. 745 ILCS 10/4-102. At the same time, it also allows a plaintiff to pursue a "willful and wanton" claim if the injury occurs as a result of a governmental employee executing or enforcing any law. 745 ILCS 10/2-202. Illinois cases have split as to whether the latter provision created a "willful and wanton" exception to the absolute immunity of the former.
In the recent case of DeSmet v. County of Rock Island, 219 Ill. 2d 497 (2006), the Illinois Supreme Court resolved some of the confusion about the intersection of these immunities. In DeSmet, the decedent drove into a ditch near the county line. An anonymous driver witnessed this and contacted the clerk for a nearby town.
A series of calls between emergency dispatchers followed, with multiple towns and counties debating who had jurisdiction. Apparently, that debate was never settled because 3 days later, the decedent was found dead near her car.
The decedent’s estate sued the various municipalities, alleging willful and wanton misconduct. The municipalities argued that they had absolute immunity under Section 4-102 for their failure to provide adequate police protection. The plaintiff argued that they could be liable for willful and wanton misconduct for their misconduct under Section 2-202.
The Supreme Court resolved this dilemma by finding that, in order to create a "willful and wanton" exception to absolute immunity, the municipal employee must:
Although the element of control is not explicitly contained within Section 2-202, the court found that its prior case law implicitly required this additional requirement. Id. (citing Doe v. Calumet City, 161 Ill.2d 374, 387 (1994)). Accordingly, the DeSmet court found that the municipalities should have been dismissed because they exercised no control over the scene when they failed to respond at all.
The implications of DeSmet may be broad. By creating the additional requirement of "control over the scene," DeSmet may limit those situations in which a willful and wanton exception will be read into an absolute immunity. For example, if the police fail to investigate or fail to provide traffic control, they may not be liable unless they actually assert control over the scene in which a plaintiff is injured. In other situations, however, DeSmet will have no impact. For example, if an officer places an individual in a position of danger during an investigation or traffic stop, he could still be held liable. See, Leone v. City of Chicago, 156 Ill.2d 33 (1993) (officer required driver to stand behind car parked in lane of traffic during traffic stop).
Finally, DeSmet should not be read as absolving a municipality of its duty to respond to 911 calls. Indeed, both the Illinois Emergency Telephone Systems Act (the 911 Act), 50 ILCS 750/1, et seq., and the Emergency Medical Services Systems Act, 210 ILCS 50/1, et seq., require appropriate responses to emergency phone calls for medical assistance, and both permit willful and wanton claims. See 50 ILCS 750/15.1 & 210 ILCS 50/3.150.
