Ten Things Governmental Officials Should Know About The Illinois Governmental Tort Immunity Act

by Darcy L. Proctor

Ancel Glink attorneys have defended Illinois local governments in civil lawsuits for over 75 years. The most common type of claim filed in state court against a governmental entity or its employee is known as a "tort claim" in which a person seeks recovery of money damages for injury to his or her person or property arising from the operation of government. The Local Governmental and Governmental Employees Tort Immunity Act ("Tort Immunity Act") is the single most effective tool available to governments in their defense of tort claims. This article will address frequently asked questions concerning the Act's scope and application.

1. Who is Protected Under the Tort Immunity Act?
The Act provides certain immunities to "local public entities" and "public employees" from some, but not all, liability arising from the provision of governmental services. The various immunities found in the Act provide a shield or protection from civil liability in certain cases. The Act defines "local public entity" to include, among others, counties, townships, municipalities, municipal corporations, park districts, school districts, fire protection districts, and library districts, as well as all other local governmental bodies or intergovernmental agencies, or similar entities formed pursuant to the Illinois Constitution or the Intergovernmental Cooperation Act. The State of Illinois is excluded from the Act's protections.

The Act also protects "public employees" from liability for certain acts or omissions while working at their jobs. The term "public employee" is broadly defined to include any present or former officer, member of a board, commission or committee, and agent, volunteer, servant or employee whether or not compensated. The Act does not apply to independent contractors.

The tort immunities found in the Act do not apply in federal civil rights actions or other claims based solely on federal law. There are, however, other immunities available to public entities and their employees for those types of claims.

2. What Claims are Covered Under the Tort Immunity Act?
Although the Act provides a broad grant of immunities to local public entities and their employees, it does not provide absolute protection against all claims. First, the Act only applies to tort claims which include personal injury and property claims, wrongful death claims and all other claims recognized under Illinois tort law principles. The Act does not apply to contract claims or claims brought under the Worker's Compensation Act. It also does not protect against claims seeking equitable remedies, injunction or mandamus. In addition, the Act does not apply to federal civil rights claims or other rights granted by federal law.

3. What Governmental Services are Protected Under the Act?
Some of the governmental services and activities for which whole or partial immunities are available are:

1. Injury occurring in the use of public property;
2. Police activities;
3. Fire protection and rescue services;
4. Medical, hospital and public health activities;
5. Adoption, failure to adopt enactment or enforcement the law;
6. Issuance, denial, suspension or revocation of permit, license or certificate;
7. Provision of information; and
8. Discretionary decisions.

4. What is a Local Government's Obligation to Indemnify an Employee Sued in a Civil Action?
If a lawsuit is instituted against a public employee based on an injury to some person allegedly arising out of conduct which occurred within the scope of that person's employment, the public employer may elect to do so one or more of the following:

a. Appear and defend against the claim or action;
b. Indemnify the employee or former employee for the employee's court costs incurred in the defense of such claim or action;
c. Pay or indemnify the employee or former employee for a judgment based on such claim or action; or
d. Pay or indemnify the employee or former employee for a compromise or settlement of such claim or action.

The courts have held that the local public entity has a choice of which option to pursue. For example, a local public entity may choose to wait until a case is over and only then reimburse the public employee for the amount actually paid by the employee. Most self-insured governments, pools and insurance companies will involve themselves in the case from the beginning, provide a defense and pay a judgment or settlement on behalf of the public employee. However, where there is a question about the scope of coverage to be furnished, the public employee or the government itself will be defended under a reservation of rights. If a public employee is charged with a crime rather than with a tort, and is convicted, the local public entity cannot pay for the employee's criminal defense.

5. What Acts Fall Within the "Scope of Employment" to Trigger a Local Government's Duty to Indemnify?
Under Illinois law, a public employer may be held liable for the negligent, willful, malicious, or even criminal acts of its employees when those acts are committed "in the course and scope of employment" and in furtherance of the employer's business. Illinois courts use an objective test in determining whether an employee's acts are within the scope of employment. The inquiry will focus not on the employee's subjective intent at the time of the act or omission at issue, but instead on the employee's conduct, objectively viewed. Acts which are closely connected with what the employee is employed to do will generally meet this requirement. For example, an employer can be found liable for the shooting of a trespasser who was leaving the employer's premises by a guard who was armed, without the knowledge or permission of the employer. However, such conduct as sexual assaults by employees fall outside the employee's scope of employment because of the nature of the conduct involved. As a result, a local government may have no obligation to defend or indemnify a judgment under those circumstances.

6. Does the Purchase of Liability Insurance Waive Immunities? When originally enacted in 1965, the Tort Immunity Act contained a provision which waived the immunities available under the Act when a unit of local government purchased liability insurance. In 1986, the Illinois General Assembly revised the Tort Immunity Act to eliminate the waiver provision. As a result, a public entity may invoke any of the immunities available under the Tort Immunity Act regardless of whether it is self-insured or has purchased conventional insurance.

7. What is the Statute of Limitations Period for a Civil Lawsuit Against a Public Entity or Its Employee?
The general statute of limitations for tort claims is one year from the date that the injury or cause of action occurred. For claims involving minors and persons under legal disability, the one-year limitation period begins to run within one year of the minor's 18th birthday or removal of the legal disability. However, in 2003, the Illinois legislature extended the one-year limitation period for actions arising from "patient care" to no less than two years after the date on which the claimant knew, or through the use of reasonable diligence should have known of the existence of the injury or death for which damages are claimed, but no more than four years after the date on which the government's negligence occurred which caused the injury or death. Please note the statute of limitations for filing a federal civil rights lawsuit or other claim asserting a violation of a federal law is generally two years and not subject to the limitation periods found in the Act.

8. Local Governments are Immune from Civil Liability When Their Employees are Not Liable
Under the Act, if a public employee is immune from liability based on some immunity or other legal defense, the local government for which that employee works is also protected from civil liability. Because a local government can act only through its employees, its potential civil liability is coextensive with the liability of its employees. So, for example, where a police officer has immunity under the Act for any negligent enforcement of the law, the local government which employs the officer is likewise immune from suit.

9. Local Governments are Only Obligated to Pay for "Compensatory Damages"
In the event no immunity applies and civil liability is ultimately established, a tort claimant is entitled to compensatory damages to be awarded by a judge or jury. Compensatory damages are aimed at placing an injured party in the position he or she would have been in had no wrong occurred. A tort claimant is only entitled to compensatory damages for his or her proven losses after liability is proven.

In Illinois, to recover compensatory damages, the tort claimant must prove he or she suffered a compensable injury. Examples of compensatory damages in a personal injury case include past and future pain and suffering, disability and disfigurement, past and future medical expenses, and lost earnings. To recover future damages, the injured party must demonstrate that these damages are reasonably certain to occur and cannot be based on speculation.

10. Local Governments are Not Liable for Punitive Damages
Under Illinois common law, governmental bodies are not liable for punitive damages which are much different than compensatory damages discussed above. For instance, the purpose of punitive damages is to punish a defendant, to teach the defendant not to repeat any intentional, deliberate and outrageous conduct, and to deter others from similar conduct. Because the burden of punitive damages assessed against a governmental entity would be borne by its taxpayers, there is no justification for punishing taxpayers or attempting to deter them from future misconduct of public employees over whom they have no control.

The Act expressly provides that a local public entity is not liable to pay punitive or exemplary damages in any state action brought directly or indirectly against it by the injured party or a third party. As a result, a local public entity may not be held liable for punitive damages in a personal injury action. Its employees, however, can, in an appropriate case, be made to personally pay punitive damages. Although governmental bodies may not pay punitive damages, they can purchase coverage under a conventional insurance policy to offer that protection to its employees. Unfortunately, the insurance industry has not generally made such coverage available. If there is no such coverage, a government official or employee should consider retaining their own attorney to fully protect themselves against personal exposure.

Government officials interested in learning more about the various immunities and protections found in the Tort Immunity Act may contact the author at dproctor@ancelglink.com. Ancel Glink's Illinois Governmental Tort Immunity Handbook, which goes into much more detail about these issues, can be downloaded without charge at www.ancelglink.com. We also invite you to read Chapter 6: "How Governments Can Win in Cases Before Appellate Courts – 10 Examples "

All chapters:
Ten Steps to Help Keep Your Employees From Suing You (Or To Help Defend You If They Do), by Margaret Kostopulos

Ten Lessons Learned by a Former Elected Official, by Gregory S. Mathews

Ten Rules to Live by for Public Management Labor Negotiators , by Gregory S. Mathews Donald W. Anderson

Moving Ten (Giga) Steps to the Digital Future , by Adam B. Simon

Ten Things Governmental Officials Should Know About The Illinois Governmental Tort Immunity Act , by Darcy L. Proctor

How Governments Can Win in Cases Before Appellate Courts – 10 Examples , by Ellen K. Emery

Ten Rules About Running for Local Government Office, by Keri-Lyn J. Krafthefer

Top Ten Tools for Your Construction Project, by Derke J. Price

Ten Steps to Creating a TIF District, by Paul N. Keller

Ten Things Governmental Officials Don't Know About Workers' Compensation, by Gerald A. Granada and W. Britt Isaly

Ten Things Municipal Officials Should Know About Local Prosecution and Ordinance Enforcement, by Scott Puma and John Christensen

The Zoning Game in Ten Easy Lessons , by David S. Silverman

Ten Ways Municipalities and Park Districts Can Intergovernmentally Cooperate, by Scott A. Puma

Ten Steps to a Closer Relationship Between Municipalities and School Districts, by Margaret Kostopulos







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