The Journal of The DuPage County Bar Association

Back Issues > Vol. 20 (2007-08)

Insuring Municipalities: Defending Under The Tort Immunity Act A Dog Of A Case Study
by Steven B. Ekker

I have spent enough time on this dog. I’ll deny all the motions for summary judgment," ruled the Honorable Herman Haase in denying my Tort Immunity Act motion, among others, shortly before retiring from the Will County bench.

Judge Haase was wrong, however, as subsequently determined by his successor on a motion to reconsider, and affirmed by the Third District Appellate Court.

So what are all the dog references about? Let’s just say this wasn’t your run-of-the-mill municipal defense fact pattern. It involved a series of unfortunate events culminating in a police officer shooting and killing a dog owned by the Plaintiffs: a sweet puppy named "Little Boy" according to the Plaintiffs’ pleadings, but from the Defendants’ perspective, a large 160-pound Great Dane charging a fellow-officer at the precise moment the dog was shot.

Don’t get me wrong. I love dogs just as much as the next person. Nonetheless, as we all know, it’s a dog eat dog world out there, and while in presenting this case one might argue I put on a dog and pony show, this is no shaggy dog story. Okay, now that I have that out of my system, let’s talk about the case.

The Facts. A brief background of the facts reveals that on the day in question, a police dispatch reported several callers complaining of a large dog on the loose acting in a vicious manner. An ordinance enforcement officer was the first to arrive at the scene, unarmed, except for a loop and pole, with which he intended to snare the dog and transport it to Animal Control. When he arrived at the scene, saw the size of the dog, and saw that it was running around irrationally, he called for backup assistance.

The officer who ended up shooting the dog responded to the call for back up. When he arrived nearby, he took a rifle from his squad car, loaded it with special bullets designed not to fragment (so as to protect any civilians in the area in the event he ended up having to use the rifle) and went to the scene. When he arrived at the scene he found the enforcement officer and dog fenced inside a backyard, with the enforcement officer attempting to snare the dog with his pole and loop. However, after failing to snare the dog the first time, and upon approaching the dog again, the dog showed its teeth and hackles, and charged the unarmed enforcement officer. It was not until the dog charged the enforcement officer and had closed the gap to approximately 7-½ feet that the Defendant Officer shot the dog.

According to the Defendant Officer, as well as the Chief of Police who was also present, there was absolutely no doubt that the dog was about to do, and would have done, great bodily harm to the enforcement officer had the Defendant Officer not shot the dog.

The Lawsuit. The Plaintiffs sued the police officer who pulled the trigger, as well as the municipality in which the police department was located. They alleged wilful and wanton misconduct on the part of the officer and vicarious liability on the part of the municipality. As part of their damages claim, the Plaintiffs sought future lost profits and income they asserted would have been realized from breeding the dog, who itself had been bred from an impressive blood-line to be a champion.

While the Defendants obtained partial summary judgment on the issue of damages, this article focuses upon the liability aspects of the case, and particularly, how the Illinois "Local Governmental and Governmental Employees Tort Immunity Act"1 (referred to herein both as the "Tort Immunity Act" and the "Act") absolved the Defendants of wrongdoing.

The Purpose of the Tort Immunity Act. Initially, the Tort Immunity Act is designed in general to protect public entities and public employees from liability arising from the operation of government.2 In promulgating the Act, the legislature "sought to prevent the dissipation of public funds on damage awards in tort cases."3 If an immunity does not apply, a municipality is liable in tort to the same extent as a private party.4

Vicarious Liability and Immunity Under Section 2-109 of the Act. Under the Act, the defense and fate of the vicariously sued municipality parallels that of the officer or government employee. Section 2-109 of the Act provides that a local public entity is not liable for any injury resulting from an act or omission of its employee where the employee is not liable.5

Thus, in our case, we knew going in that if we were successful in establishing that no liability existed for the acts or omissions of the officer, there could be no liability on the part of the municipality.

Immunity Surrounding Execution or Enforcement of the Law. Specific to law enforcement, Section 2-202 of the Act states, in pertinent part: "A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct."6 As such, so long as it can be established that a police officer is in the process of executing or enforcing the law, he or she is immune from liability premised upon mere negligence.

In our case, the officer in question was responding to a police dispatch reporting that several callers had complained of a large dog on the loose acting in a vicious manner. Further, an Animal Control ordinance in the municipality made it illegal for the owner of an animal to allow the animal to run at large upon the streets and public ways of the city, and permitted, among other things, impoundment of an animal found at large. Thus, there was little argument as to whether the officer in question was acting in the execution or enforcement of the law at the time of the occurrence – hence the reason the Plaintiffs sued under a wilful and wanton conduct theory.

Wilful and Wanton Conduct under the Act. In defending against the Plaintiffs’ claims, the initial argument raised was that the evidence did not support a wilful and wanton finding as a matter of law. Under the Act, wilful and wanton conduct is specially defined. Section 1-210 provides: "‘Wilful and wanton’ conduct as used in this Act means a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property. This definition shall apply in any case where a ‘willful and wanton’ exception is incorporated into any immunity under this Act."7

This special definition has been interpreted by the courts to require conduct to rise to the level of recklessness, approaching "the degree of moral blame attached to intentional harm"8 in order to constitute wilful and wanton conduct under the Act. The burden of establishing wilful and wanton conduct under the Act is therefore greater than the burden of establishing wilful and wanton conduct under common law.

When dealing with a special statutory definition of wilful and wanton conduct, whether the evidence is sufficient to bring the alleged misconduct within the purview of the special definition is for the court to decide, as a matter of law.9

The Plaintiffs argued, among other things, that the police station located not far from the occurrence housed a tranquilizer gun the officers should have used in order to subdue the dog, and that the Defendant Officer’s loading of the rifle and bringing it to the scene demonstrated that he intended to shoot and kill the dog before ever laying eyes on it.

The evidence showed, however, that the officers did not have time to stop and pick up the tranquilizer gun given the enforcement officer’s call for immediate backup assistance. Further, even if they had, it would have taken six separately filled and loaded tranquilizer darts over a 15 to 20 minute period to subdue this dog given its size. Meanwhile, the first dart to hit the dog would have sent it into an even more aggressive frenzy.

Further, the Defendant Officer’s uncontroverted testimony established that the sole purpose of bringing the rifle to the scene was in case a situation presented itself where the officers needed to defend themselves or others in the area, such as what actually occurred. Also, there would have been no purpose in placing the enforcement officer in harms way, unarmed with but a loop and pole, if the officers always intended to simply shoot and kill the dog.

Both the reconsidering judge and the Third District Appellate Court agreed and ruled that the evidence did not support a finding of wilful and wanton conduct under the Act’s special definition, as a matter of law. Therefore, immunity under Section 2-202 was found to apply.

Nonetheless, the principal Tort Immunity Act argument raised to defeat the Plaintiffs’ claims was not the "execution or enforcement of law" immunity provision, and instead was the blanket "discretionary act" immunity conferred by Section 2-201 of the Act.

"Blanket" Immunity in the Exercise of Discretion. Section 2-201 of the Act provides: "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."10 Section 2-201 is not subject to the wilful and wanton exception applicable to Section 2-202.11

The purpose behind this blanket "discretionary act immunity" is that "public officials, when acting within their official discretion, should be allowed to exercise their judgment without fear that a mistake made in good faith might subject them to lawsuit."12

In the case of Fender v. Town of Cicero,13 families of fire victims brought actions against the town and town’s police officers for negligence in failing to rescue victims of a residential fire. They asserted, inter alia, that the officers acted wilfully and wantonly in consciously choosing not to attempt a rescue when they knew victims were trapped inside of the burning building.14

Citing to the Illinois Supreme Court’s seminal decision in Van Meter v. Darien Park District, 15 the Fender Court held that Section 2-201 immunity applies where a municipal defendant establishes that a situation involves both "the making of a policy choice and the exercise of discretion." For purposes of Section 2-201, "policy decisions" are those "requiring a governmental entity to balance competing interests and to make a judgment call as to what solution will best serve those interests," and "discretionary actions" are those that are unique to a particular public office.16

The Fender Court then performed the following analysis:

"Here, the officers had to make a policy decision in balancing the competing interests of their own safety and their chances of success with the interests of the victims and survivors. The officers’ actions were discretionary because performing an emergency rescue in this situation was unique to the public office of police/public safety officer."17

The same analysis was applied in our case: just like the officers in Fender, the Defendant Officer in our case was faced with a policy decision in balancing the competing interests of the enforcement officer’s health and safety, the public’s health and safety, and the Defendants’ chances of success in apprehending the dog without injury, with the countervailing interests of the dog’s health and safety and the property rights of the dog’s then unknown owners. His actions were discretionary because the apprehension of the unrestrained and unidentified animal, running at large, was unique to the public office of police/public safety officer.

The Plaintiffs argued, among other things, that the types of "policy decisions" contemplated by the Act were not those akin to the Defendant Officer’s actions in the field, and instead were the types of decisions made by high-ranking officers or public officials in board rooms, i.e., formal departmental policies and procedures. They further argued that apprehension of the dog was not unique to the office of police, since Animal Control shared the responsibility of impounding estranged animals. Finally, they argued that if the Defendants’ argument was accepted, every police officer in every situation would escape prosecution by arguing that his or her actions constituted both "the making of a policy choice and the exercise of discretion." The first two arguments failed based upon the Fender analysis and holding itself.

The "Ministerial Acts" Exception. The third argument fell short because it failed to consider the "ministerial acts" exception to section 2-201. "Immunity under section 2-201 will not apply if the plaintiff’s injury results from an act or omission by the employee that is ministerial in nature."18

A ministerial act is one that a person performs on a given state of facts, in a prescribed manner, in obedience to the legal authority, and without reference to the official’s discretion as to the propriety of the act.19 For example, a municipal defendant exercises discretion when it selects and adopts a plan in the making of public improvements, however, once it begins to carry out that plan, it acts ministerially and is bound to ensure that the work is carried out in a reasonably safe and skillful manner.20

As such, the Plaintiffs’ arguments in opposition to Section 2-201 immunity also failed.

Dealing with Dual Immunity Arguments following Murray v. Chicago Youth Center. While the reconsidering judge held that the Defendants were immune under both the "execution or enforcement of law" immunity conferred by Section 2-202 of the Act and the "discretionary act" immunity conferred by Section 2-201, the appellate court ruled that the "discretionary act" immunity conferred by Section 2-201 could not apply based upon the very recently decided Illinois Supreme Court case Murray v. Chicago Youth Center.2121 224 Ill.2d 213, 864 N.E.2d 176 (2007).

In its Rule 23 order, the appellate court noted that pursuant to Murray, where two separate grounds for immunity could potentially apply to a given set of facts, and one contains an exception for extraordinarily culpable acts while the other does not, the provision with the culpable act exception controls. The Appellate Court held here, "Even if we were to find this was a case where the defendants exercised discretion to create policy, section 2-201 is inapplicable because section 2-202 is also applicable to the facts and contains an exception for willful and wanton conduct."

The appellate court nonetheless affirmed the lower court’s granting of summary judgment based upon Section 2-202, holding that there was no genuine issue of material fact as to whether any alleged actions of the defendants were wilful and wanton.

Conclusion. In sum, the Defendant Officer in our case was faced with a split second decision whether or not to shoot this estranged, untagged dog found roaming at large, as he watched it in the process of attacking his fellow officer, who was armed only with a pole and loop.

While the loss of the dog to the Plaintiffs is truly unfortunate, under the facts and circumstances of this case and given the protections conferred by the Tort Immunity Act, the Plaintiffs literally did not have a dog’s chance of succeeding from the start, and would have been much better off letting sleeping dogs lie. Sorry, I couldn’t resist.

1 745 ILCS 10/1-101 et. seq.

2 745 ILCS 10/1-101.1

3 Kevin’s Towing, Inc. v. Thomas, 351 Ill.App.3d 540, 544, 814 N.E.2d 1003, 1007 (2d Dist. 2004)(citing the seminal case of Van Meter v. Darien Park District, 207 Ill.2d 359, 799 N.E.2d 273 (2003)).

4 Kevin’s Towing, 351 Ill.App.3d at 545, 814 N.E.2d at 1007.

5 745 ILCS 10/2-109.

6 745 ILCS 10/2-202.

7 745 ILCS 10/1-210.

8 Wade v. City of Chicago, 364 Ill.App.3d 773, 783, 847 N.E.2d 631, 640 (1st Dist. 2006), quoting Morton v. City of Chicago, 286 Ill.App.3d 444, 452 (1st Dist. 1997), and Burke v. 12 Rothschild’s Liquor Mart, Inc., 148 Ill.2d 429, 448 (1992).

9 Lo v. Provena Covenant Medical Center, 356 Ill.App.3d 538, 544-45, 826 N.E.2d 592, 600 (4th Dist. 2005).

10 745 ILCS 10/2-201.

11 See Jackson v. Chicago Firefighters Union Local No. 2, 160 Ill.App.3d 975, 980, 513 N.E.2d 1002, 1005 (1st Dist. 1987); Fender v. Town of Cicero, 347 Ill.App.3d 46, 54-55, 807 N.E.2d 606, 612-13 (1st Dist. 2004).

12 Fender, 347 Ill.App.3d at 48, 807 N.E.2d at 608.

13 Fender, 347 Ill.App.3d at 54-55, 807 N.E.2d at 612-13.

14 Fender, 347 Ill.App.3d at 48, 807 N.E.2d at 608.

15 207 Ill.2d 359, 799 N.E.2d 273 (2003).

16 Fender, 347 Ill.App.3d at 54-55, 807 N.E.2d at 612-13.

17 Id.

18 Trotter v. School Dist. 218, 315 Ill.App.3d 1, 13, 733 N.E.2d 363, 374 (1st Dist. 2000).

19 Trotter, 315 Ill.App.3d at 13-14, 733 N.E.2d at 374.

20 Id. Steve Ekker is a partner with the law firm of Momkus McCluskey, LLC, concentrating his practice in commercial litigation and business disputes.  He received his Bachelor’s degree from the University of Michigan, and his Juris Doctor, Cum Laude, from Northern Illinois University, College of Law.

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