Zimmerman v. Village of Skokie , 183 Ill. 2d 30 ( 1998 )

JUSTICE HARRISON,

dissenting:

In Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 346-47 (1998), this court declared the special duty exception to sovereign immunity unconstitutional. All previous decisions by our court and the appellate court recognizing the validity of the special duty doctrine were expressly overruled. That being so, I fail to see what legitimate jurisprudential function is served by the majority’s protracted discussion of the doctrine here. Perhaps my colleagues simply feel the need to reassure the bar that they have not changed their minds again.

The length of the majority’s latest special duty discussion has not enhanced its persuasiveness. I wrote in Harinek that it was wrong for us to abruptly depart from decades of precedent recognizing the special duty doctrine (Harinek, 181 Ill. 2d at 358 (Harrison, J., dissenting)), and I continue to adhere to that view. Once the question was decided in Harinek, however, it became binding precedent which I feel obliged to follow.

My reason for dissenting is wholly unrelated to the constitutionality of the special duty doctrine. I dissent today because the majority has misunderstood some basic principles of appellate review and has misconstrued certain provisions of the Tort Immunity Act.

In disposing of this case, the majority purports to overrule or affirm various holdings made by the circuit and appellate courts in support of the judgments those courts entered. What the majority overlooks is that our job is not to review holdings. We review judgments. It is the propriety of judgments themselves and not what else that may have been said by the lower courts that is before us on appeal. Material Service Corp. v. Department of Revenue, 98 Ill. 2d 382, 387 (1983). Our function as a reviewing court is simply to determine whether the lower courts reached the correct result. The reasons given by a lower court for its decision or the findings on which a decision is based are not material if the judgment is correct. See Board of Managers of Dominion Plaza One Condominium Ass’n No. 1-A v. Chase Manhattan Bank, N.A., 116 Ill. App. 3d 690, 694 (1983). A judgment may be sustained upon any ground warranted by the record. Bell v. Louisville & Nashville R.R. Co., 106 Ill. 2d 135, 148 (1985).

The present case is before us on appeal from a judgment of the appellate court affirming, on interlocutory appeal under Rule 306(a)(1) (166 Ill. 2d R. 306(a)(1)), an order of the circuit court granting plaintiff a new trial. The circuit court ordered a new trial based on various trial errors which had nothing to do with the viability of the special duty doctrine. The errors pertained to such matters as the admission of evidence, jury selection, and improper arguments by defense counsel.

In their interlocutory appeal, defendants claimed that the trial court abused its discretion in setting aside the jury’s verdict and allowing plaintiff to try his case again. The appellate court rejected this claim, noting, among other things, that defendants had failed to provide it with an adequate record. The record remains devoid of materials necessary to review the circuit court’s order granting a new trial, and defendants expressly conceded in their petition for leave to appeal that the appellate court was correct in affirming the circuit court’s decision to order a new trial. Under these circumstances, defendants’ leave to appeal should never have been allowed, and their appeal should be summarily dismissed pursuant to Rule 302(c) (134 Ill. 2d R. 302(c)).

Even if I agreed that we should address the case on the merits, I still could not concur in the majority’s opinion. Because this appeal challenges the propriety of the new trial order and because defendants now agree that the new trial order was proper, the only appropriate disposition at this point is to affirm the appellate court’s judgment and remand to the circuit court for a new trial.

Although I would affirm outright, I agree with the majority that the statutory immunity questions should be addressed. As a general rule I am reluctant to address issues that are not essential to resolution of the specific issue at hand, and I do not think that the appellate court should have addressed the special duty question given the posture of the case. The fact is, however, that the appellate court did pass on the question, and it did so in a way that is contrary to our recent decision in Harinek. If we do not step in to clarify the law now, it may only engender confusion later. In the interest of conserving judicial resources and insuring a consistent body of precedent, some discussion on our part is therefore appropriate. Unlike the majority, however, I would not alter the lower courts’ judgments. I would simply affirm for different reasons.

Prior to Harinek, our court conceptualized the special duty doctrine as an exception to both the common law public duty rule and the statutory immunities set forth in the Tort Immunity Act. Doe v. Calumet City, 161 Ill. 2d 374, 385-86 (1994). As an exception to immunities created by statute, the doctrine did not come into play unless the defendants were otherwise immunized from liability for negligence by a provision of the Tort Immunity Act. In the case before us today, there is no basis for holding that the Tort Immunity Act shields defendants from liability on plaintiffs negligence claims.

Municipalities and their employees who seek to invoke sovereign immunity under the Tort Immunity Act must show that a particular provision of the Act shields them from liability in tort. The immunities set forth in the Act are in the nature of an affirmative defense which the public entity must plead and prove. See Bubb v. Springfield School District 186, 167 Ill. 2d 372, 378 (1995). There is no presumption in favor of statutory immunity. To the contrary, because the Tort Immunity Act is in derogation of the common law, the court has held that it must be strictly construed against the local public entity or public employee. Aikens v. Morris, 145 Ill. 2d 273, 278 (1991).

As the majority opinion indicates, defendants initially invoked a variety of provisions under the Tort Immunity Act as a defense to plaintiffs negligence claims. By the time they reached the appellate court, defendants argued only that plaintiffs negligence claims should be barred by sections 4 — 103, 6 — 105 and 6 — 106(a) of the Act (Ill. Rev. Stat. 1981, ch. 85, pars. 4 — 103, 6 — 105, 6 — 106(a)). In their petition for leave to appeal, which they elected to have stand as their brief (166 Ill. 2d R. 315(g)), defendants winnowed their list of possible statutory immunities even further. They now rely exclusively on section 2 — 202, which relieves public employees from liability for acts or omissions “in the execution or enforcement of any law” unless such acts or omissions are willful and wanton. Ill. Rev. Stat. 1981, ch. 85, par. 2 — 202.

Under the plain language of the statute, section 2 — 202 does not grant immunity for every act or omission of public employees while on duty. Rather, it provides immunity only where the public employee is negligent while actually engaged in the execution or enforcement of a law. Barnett v. Zion Park District, 171 Ill. 2d 378, 391 (1996). As in Barnett, it does not appear that the offending municipal employees in this case were “executing or enforcing a law” in any sense. Defendants tell us that they will argue on remand that they were, in fact, engaged in the execution and enforcement of a law when they abandoned Scott Zimmerman to hang himself in his cell, but this case dates back 15 years now. If defendants could make such an argument legitimately, they surely would have done so already. Accordingly, I would hold, as we did in Barnett, that section 2 — 202 does not apply to this case.

Governmental units are liable in tort on the same basis as private tortfeasors unless a tort immunity statute imposes conditions upon that liability. In re Chicago Flood Litigation, 176 Ill. 2d 179, 192 (1997). Because section 2 — 202 is inapplicable and because defendants no longer claim the protection of any other provision of the Tort Immunity Act, the viability of plaintiffs negligence claims does not depend on the special duty exception. On remand, plaintiff may proceed against defendants as he would against private individuals.

In addition to any common law negligence claims he might assert, plaintiff may also proceed against defendants based on section 4 — 105 of the Tort Immunity Act. That statute expressly provides that

“a public employee, and the local public entity where the employee is acting within the scope of his employment, is liable if the employee knows or has reason to know from his observation that the prisoner is in need of immediate medical care and fails to take reasonable action to summon medical care.” Ill. Rev. Stat. 1981, ch. 85, par. 4 — 105.

This statute is broad enough to embrace all of plaintiffs negligence claims, and plaintiff has so argued. Contrary to the position taken by the majority, the applicability of section 4 — 105 is not limited to plaintiffs claims under count V of his third amended complaint.

The majority makes one final error. In discussing section 4 — 105, my colleagues assert that even if a defendant’s conduct fell within the terms of the statute, that defendant still could not be held liable for negligence if the defendant’s conduct involved an “act or omission in the execution or enforcement of any law” within the meaning of section 2 — 202. In such a case, the majority claims, the defendant could only be held liable if his conduct rose to the level of willful and wanton misconduct.

Because defendants’ conduct here does not fall within the terms of section 2 — 202, there is no need to discuss the relationship between that statute and section 4 — 105. Even if section 2 — 202 were relevant, however, the majority’s analysis would be incorrect for two reasons.

First, it is axiomatic that specific statutory provisions generally control over general provisions on the same subject. McDunn v. Williams, 156 Ill. 2d 288, 309 (1993). Section 2 — 202 deals genetically with acts or omissions in the execution or enforcement of the law. Section 4 — 105, by contrast, is addressed to the specific circumstances at issue here, namely, the failure of defendants to summon medical care for Zimmerman, a prisoner in their custody, when they knew he needed it. Because the statute is more specific, it is controlling and allows recovery for ordinary negligence.

Second, the practical effect of the majority’s approach is to engraft a willful and wanton standard onto the version of section 4 — 105 governing this case. Where the legislature intends municipal liability to be governed by a willful and wanton standard, it has said so explicitly. See, e.g., Ill. Rev. Stat. 1981, ch. 85, par. 3 — 106. In the case of section 4 — 105, what the legislature said explicitly is that liability may be premised on ordinary negligence. If that were not the legislature’s intent and the majority’s construction were correct, there would have been no need for the legislature’s subsequent amendment to the statute to expressly include a willful and wanton standard. See 745 ILCS 10/4 — 105 (West 1996).

In sum, I agree with the result reached by the appellate court, but for different reasons. The appellate court was correct in affirming the circuit court’s judgment granting plaintiff a new trial, and plaintiff should be permitted to pursue his negligence claims on remand regardless of the viability of the special duty exception. I therefore dissent.