The Journal of The DuPage County Bar Association

Back Issues > Vol. 17 (2004-05)

Northern’s Exposure
When Should Municipalities be Held Liable for Injuries Negligently Caused by Illinois Police Officers?
By Kerry A. Bute


On December 30, 2004, the husband of a woman killed while being pulled over by a Lombard police officer filed suit in DuPage County Circuit Court.2 The woman was struck and killed by a seventeen-year-old boy, possibly after falling asleep at the wheel.3 The suit consists of the claim that the officer was negligent in ordering her out of her car on a busy street; where according to the victim’s husband there were safer places approximately 50 to 100 yards away.4 The Lombard and DuPage County police have declined to offer an explanation as to why the police officer pulled over the woman’s car and ordered her out of her car.5

Although the specific circumstances of the suit filed on December 30th have not been released, this article will examine under what circumstances municipalities have been held liable for the actions of police officers, what the plaintiffs must prove in order to surpass the general protection granted to police officers, and how surpassing the general protection granted to police officers has become more difficult.

Liability of Municipalities

In order for the husband of the woman killed to prevail on a claim that the police officer, and ultimately the police department, were negligent, the husband will have to first prove that the police officer owed her a duty, that the police officer breached that duty, and that the woman’s injury was proximately caused by the breach.6

Pursuant to the common law public duty rule, municipalities and law enforcement officials owe no duty to protect individual citizens.7 Rather, the police owe a duty to the general public to enforce and execute laws for the well being of everyone in the community.8 "The public duty rule reflects a policy decision that the police cannot guarantee the personal safety of every member of the community. The rule protects municipalities from liability in tort by establishing the principle that police officers have no enforceable duty to protect individual citizens from harm."9 Recent cases have established that the public duty rule only exists where the legislature has not already granted immunity to municipalities.10

The General Assembly enacted the Tort Immunity Act in 1965 to prevent the state from spending public funds on damage awards in tort cases. 11 According to the Act, a public employee, acting within the scope of employment, is not liable for an injury caused by the act or omission of another person.12 As a result, the public entity which employees the official is not liable when its employee is not liable.13 The Tort Immunity Act also provides that neither a public entity nor its employee is liable for failure to provide adequate police protection service or for failure to prevent the commission of a crime.14 The Act insulates municipalities from plaintiffs’ viable common law tort claims.15 The Tort Immunity Act is an affirmative defense and as a result those entities wishing to shield themselves from negligence claims bear the burden of properly raising and proving their immunity.16

Exceptions to Common Law Public Duty Rule and Tort Immunity Act

The Tort Immunity Act provides that although officers are not liable for injuries caused by acts or omissions in the execution and enforcement of the law, they are liable if their conduct is willful and wanton.17 The Act defines willful and wanton conduct as "a course of action which shows an actual or deliberate intention to cause harm or which, if not intent, shows an utter indifference to or conscious disregard for the safety of others or their property."18 According to Illinois courts, willful and wanton conduct consists of more than mere inadvertence, incompetence, or unskillfulness.19 Therefore, a motorist injured as a result of a traffic stop can recover by proving the police officer engaged in willful and wanton conduct, and there is nothing to insulate municipalities from such liability.

The special duty doctrine was once another exception to both the common law public duty rule and the Tort Immunity Act.20 However, the Illinois Courts have determined that the special duty doctrine violates the Illinois Constitution of 1970 when applied by courts to override the Act.21 The special duty doctrine is still a valid exception to the common law public duty rule.22 In Zimmerman for Zimmerman v. Village of Skokie, the Illinois Supreme Court determined that the special duty doctrine is a judicially created exception and is only applicable to the judicially created public duty rule.23 The special duty doctrine cannot override the immunity granted to municipalities by the General Assembly through the Tort Immunity Act.24 The General Assembly is the ultimate authority in determining whether a local government entity is immune from liability.25 The Illinois courts cannot supersede the Act by imposing liability through the special duty doctrine after the court has found that entity immune from liability under the Act.26

If it can be determined that the legislature has not insulated an entity from liability under the Act then the special duty doctrine can apply. A special duty exists where a municipality, or its agent, has a special relationship with the plaintiff that creates a duty different than that owed to the general public.27 To invoke this special duty exception, the courts have held that a plaintiff must prove four elements.28

First, the municipality must be uniquely aware of the particular danger or risk to which plaintiff is exposed.29 Second, there must be specific acts or omissions on the part of the municipality and third, those acts must be affirmative or willful in nature. Finally, the injury must occur while the plaintiff is under the direct and immediate control of the municipal employees or agents.30 Although the constitutionality of the special duty doctrine has been called into question,31 the special duty doctrine remains an exception to the public duty rule.

Leone v. City of Chicago32

If a motorist is unable to prove willful and wanton conduct, and the legislature has not granted immunity to the municipality under the circumstances of the case, then a plaintiff can attempt to prove the exception of a special duty.33 Leone v. City of Chicago is an example of how the special duty exception may be applied in a situation where an individual is injured during a traffic stop.34 In Leone, a motorist was stopped by a Chicago police officer for driving with an expired license plate.35 The police officer pulled the motorist over on a two-lane road with fairly heavy traffic. Then, the police officer parked his car approximately 2 or 3 feet behind the other vehicle, even though police procedure was to park the vehicle between 8 and 15 feet.36 In addition the police officer failed to activate his emergency lights. After approaching the vehicle the officer explained that she had an expired license plate. The woman acted in disbelief and the officer stated, "If you don’t believe me, then get out and look."37 The woman exited the vehicle and stood between the back of her vehicle and the front of the police officer’s vehicle to observe the license plate. At that time a vehicle struck the police car and crushed the woman between the two automobiles. Consequently, the woman sought recovery for her damages from the City of Chicago.38

Although the circumstances of the case filed in DuPage County Circuit Court are unknown at this time, the case of Leone v. City of Chicago presents a similar question. To what extent are police officers and their employers responsible for individuals when they pull them over to conduct a traffic stop?

In Leone, the City argued that the evidence of the case failed to show that the first and fourth requirements of the special duty exception were met. The first requirement being that the municipality must be uniquely aware of the particular danger or risk to which plaintiff is exposed. Some Illinois courts have interpreted this prong very narrowly.39 In Lawson v. City of Chicago, an Illinois Appellate Court held that to establish this element, facts must be alleged that the defendant had actual knowledge of a particular risk to the particular plaintiff.40 The court in Leone found that the first requirement was met by "ample evidence" that the officer appreciated the particular danger posed to Mrs. Leone and there was also ample proof that this danger was fully avoidable.41 In other cases where the first requirement has not been met, often times there is a general danger to the public at large and it is not foreseeable that the particular plaintiff would be harmed.42 However, under the circumstances of Leone, the woman was the only one in danger because she was outside of her car on a busy street and in between two cars, which were parked very close together.

Justice Miller, a dissenter in the Leone case argued that the majority misapplied the first prong of the special duty exception.43 Justice Miller reasoned that the police officer had merely a heightened awareness of those dangers, and "superior knowledge, in and of itself, does not create a duty." 44 He believed the first prong was not met where there was no evidence that the officer was aware of any particular danger threatening the plaintiff.45

The fourth requirement is that the injury must occur while the plaintiff is under the direct and immediate control of the municipal employees or agents.46 This requirement is met where the public employee "creates a position of peril ultimately injurious to a plaintiff, as opposed to situations where a plaintiff merely seeks protection from the public employee that is not normally provided."47 The court determined that this prong was met and pointed to the fact that the woman was pulled over in foul weather, in an active traffic lane, and the police officer failed to provide warning to oncoming traffic.48 By parking so close behind the other vehicle and directing her to that area, the officer placed the woman in a highly perilous decision.49

All of the dissenting justices, Justice Miller, Justice Bilandic, and Justice Heiple disagreed with the majority’s application of the fourth prong.50 Both justices pointed out that the plaintiff testified that she asked the officer whether she could inspect the license plate and the officer granted her permission. Therefore, it was a far cry from being ordered out of the car. In the absence of the officer ordering her out of the car, the justices found that the requisite "direct and immediate control" was lacking.51


It is a difficult job for courts to balance the need for police officers to be insulated from liability due to the nature of the job and the rights of injured plaintiffs to be compensated. The recent case law in Illinois, which has determined that only willful and wanton conduct can create an action for negligence against a municipality under the Tort Immunity Act, limits the number of plaintiffs, which will recover. Although, the special duty exception still has it’s place as an exception to the general public duty rule, most actions brought against a municipality will fall under the Tort Immunity Act and as a consequence the number of plaintiffs able to recover under the special duty exception will be smaller.

2 Joseph Sjostrom, Cop Sued in Woman’s Death During Lombard Traffic Stop, Chi. Trib., Dec. 31, 2004.

3 Id.

4 Id.

5 Id.

6 Doe v. Calumet City, 641 N.E.2d 498, 503 (1994).

7 Leone v. City of Chicago, 619 N.E.2d 119, 121 (1993).

8 Id.

9 Id.

10 See, David Stevens, Plugging a Hole in the Tort Immunity Act: The Emergency Vehicle Exception, 89 Ill. B.J. 296, 297 (2001).

11 Van Meter v. Darien Park District, 799 N.E.2d 273, 279 (2003).

12 745 Ill. Comp. Stat. 10/2-204 (2003).

13 745 Ill. Comp. Stat. 10/2-109 (2003).

14 745 Ill. Comp. Stat. 10/4-102 (2003).

15 Van Meter, 799 N.E.2d at 280.

16 Id.

17 745 Ill. Comp. Stat. 10/2-202 (2003).

18 745 Ill. Comp. Stat. 10/2-210 (2003).

19 Moran v. City of Chicago, 676 N.E.2d 1316, 1323 (1997).

20 Doe v. Calumet City, 641 N.E.2d 498, 504.

21 Zimmerman for Zimmerman v. Village of Skokie, 697 N.E.2d 699, 702 (1998).

22 Id.

23 Zimmerman for Zimmerman v. Village of Skokie, 697 N.E.2d 699, 702 (1998).

24 Id.

25 See, Id.

26 See, David Stevens, Plugging a Hole in the Tort Immunity Act: The Emergency Vehicle Exception, 89 Ill. B. J. 296, 297.

27 Doe v. Calumet City, 641 N.E.2d 498, 505.

28 Id.

29 Id.

30 Id.

31 Calloway v. Kinkelaar, 659 N.E.2d 1322, 1330 (1995).

32 619 N.E.2d 119 (1993).

33 Doe v. Calumet City, 641 N.E.2d 498, 505.

34 See, 619 N.E.2d 119.

35 Id. at 120

36 Id.

37 Id. at 121

38 Id. at 119-21.

39 See, Lawson v. City of Chicago, 662 N.E.2d 1377 (1996).

40 Id. at 1385.

41 Leone v. City of Chicago, 619 N.E.2d 119, 123.

42 See generally, Lawson, 662 N.E.2d at 1385.

43 Leone, 619 N.E.2d at 123.

44 Id. at 124.

45 Id.

46 Doe v. Calumet City, 641 N.E.2d 498, 505.

47 Leone v. City of Chicago, 619 N.E.2d 119, 122.

48 Id.

49 Id.

50 Id. at 123-28.

51 Id.

Kerry Bute is a third-year law student at Northern Illinois University College of Law. She is a member of Law Review, Moot Court, Phi Delta Phi, and an Academic Support Program Tutor for both Civil Procedure and Constitutional Law.

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