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Public Duty Doctrine

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The Illinois Supreme Court has recently ruled that the Public Duty Doctrine was no longer necessary and has struck it down.  I tend to follow these things because they affect my full time employment, and I’ve had a chance to do some digging as to what this is – and what it means.  Please feel free to check it out for yourself though, don’t take my word for it.  Here’s a LINK to an article.

Here’s the real quick explanation of it and any lawyers are welcome to chime in here too: Trying to keep this as non-technical as I can – The public duty doctrine is very similar to Sovereign Immunity.  That is to say, that in matters in which the government (i.e. Carpentersville) has a duty to provide certain services, it is immune from individual lawsuits that question it’s ability to provide those services to individual members of the public.  Basically, it comes down to this: The public duty doctrine made villages/employees immune to lawsuits from a resident for failure to provide a level of protection the resident THOUGHT they should be getting.

So for instance – let’s say a trustee says our fire protection is “really good.”  As a citizen of Carpentersville, you know that one of the “goals” is for the fire department to be able to respond in less than 5 minutes 90% of the time.  As a citizen, you then equate “really good” with the fact that the fire department meets that goal. So a loved one has a medical emergency such as a heart attack, and it takes the ambulance 8 minutes to get there, resulting in their death.  Just because you had an expectation that the fire department was “really good” didn’t mean you can sue, even though the department clearly didn’t live up to what the Trustee had claimed.

Now – there is no Public Duty Doctrine anymore.  The Tort Immunity Act now applies (as intended by the legislature) – and your attorney needs to decide whether or not he/she can prove that the Trustee, in claiming that the services were “really good” engaged in a willful and wanton act that set your expectation higher than they should have known to set it.  Assuming for a moment that the Trustee didn’t know any better, it could easily be argued that their claim wasn’t willful or wanton, and immunity then applies. (definition: The term wanton implies a reckless disregard for the consequences of one’s behavior. A wanton act is one done in heedlessdisregard for the life, limbs, health, safety, reputation, or property rights of another individual. Such an act is more than Negligence or gross negligence; it is equivalent in its results to an act of willful misconduct. A wanton injury is one precipitated by a conscious and intentional wrongful act or by an omission of a known obligation with reckless indifference to potential harmful consequences.  West’s Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.)

Let’s look at a different example.  Let’s say that the firefighters in Carpentersville have both, in public and in private made information available to the Trustees using facts derived from the department’s records showing that the fire department’s ability to respond has diminished and isn’t even close in meeting National Standards (That part is important – even if the village doesn’t adopt NFPA, lawyers love to use those standards in court!) or the goal set by the village – which IS the national standard, and despite that, the Trustees continue to claim that the Village’s fire department is “really good.”  In this case, they are setting your expectations much higher than they KNOW to be true – a willful act, and you rely on that assurance for the safety of your family.  Now, again, same scenario as above, a loved one dies because the fire department took longer than you were lead to believe.  NOW you might have a case – because you were intentionally told something by a Village Trustee that they KNEW to be false. Had they told you as a member of the public being served that the fire department wasn’t really good (aka the truth) you would have been afforded the opportunity to act differently.

Ultimately – this comes down to the same argument we’ve talked about for years now – TRUTH.  If Village officials tell the truth (any village official – Manager, Fire/Police Chief, employee etc), they are almost guaranteed immunity.  If they lie – they do so at their own financial peril…

And here’s the figure: Last time we checked, Carpentersville Fire Department’s response was: Less than 5 minutes 72% of the time – well below the national standard. Does that sound really good to you? Here’s the reality – don’t expect to receive the services that the Trustees in Carpentersville are telling you we have.

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Reading through the articles available on the internet, it’s clear that the over-turning of this doctrine has caused quite a stir among public safety employees. My personal opinion is – it shouldn’t. Will it increase lawsuits? Maybe. But will a majority of these cases result in dismissal – yep. That’s why the Tort Immunity Act was instituted – to protect governments and their employees for doing their job. So to the firefighters and police officers out there – just do what you’ve been trained to do, and document your interactions as you’ve been trained to, and for god’s sake – don’t lie! If you’re not comfortable answering questions about your department (or you aren’t allowed to by policy) then refer the person to your Chief. And a friendly reminder to the Fire Chiefs, Police Chiefs, Managers and Elected Officials – time to start worrying about what you’ve said. Not being truthful about the capabilities of your department/village or trying to make it look better than it is could have real financial consequences for both the Village and you personally. Remember, when you’re in public – everything you say and do can and probably will be used against you in a court of law.

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