No IN THE SUPREME COURT OF ILLINOIS ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff-Appellant,

No. 117952 IN THE SUPREME COURT OF ILLINOIS MARCUS COLEMAN, As Successor Administrator of the Estate of Coretta Coleman, vs. Plaintiff-Appellant, EAST JOLIET FIRE PROTECTION DISTRICT, et al. Defendants-Appellees. On Appeal from the Appellate Court of Illinois, Third District No.: 3-12-0583 There Heard on Appeal from the Circuit Court of the Twelfth Judicial Circuit, Will County, Illinois. Case No. 09-L-817 The Honorable Michael J. Powers, Judge Presiding BRIEF OF AMICI CURIAE OF THE ILLINOIS MUNICIPAL LEAGUE, THE ILLINOIS PUBLIC EMPLOYER LABOR RELATIONS ASSOCIATION, AND THE ILLINOIS COMMUNITY COLLEGE TRUSTEES ASSOCIATION IN SUPPORT OF THE APPELLEES EAST JOLIET FIRE PROTECTION DISTRICT, THE ORLAND FIRE PROTECTION DISTRICT, AND WILL COUNTY Roger Huebner, Esq. Illinois Municipal League 500 East Capitol Avenue Springfield, Illinois 62701 (217 525-1220 Attorney for: THE ILLINOIS MUNICIPAL LEAGUE James J. Powers, Esq. Clark, Baird, Smith LLP 6133 N. River Road Suite 1120 Rosemont, Illinois 60018 (847 378-7707 Attorney for: THE ILLINOIS PUBLIC EMPLOYER LABOR RELATIONS ASSOCIATION Todd K. Hayden, Esq. Kenneth M. Florey, Esq Robbins Schwartz 9550 Bormet Drive Suite 201 Mokena, Illinois 60448 (815 722-6560 Attorneys for: THE ILLINOIS COMMUNITY COLLEGE TRUSTEES ASSOCIATION

Table of Contents Points and Authorities... ii I. Interest of Amici Curiae... 1 II. Arguments... 4 A. Introduction... 4 B. Background... 5 C. A Brief History of the Public Duty Rule... 7 D. Abolishing the public duty rule would violate Illinois public policy and lead to absurd results... 9 1. The difference in the relationship between a plaintiff who is a private citizen and a defendant who is also a private citizen from the relationship between a plaintiff who is a private citizen and a defendant who is a public entity, official, and/or employee justifies the continued application of the public duty rule.... 12 2. The adoption and application of the Tort Immunity Act also justifies the continuation of the public duty rule.... 17 III. Conclusion... 19 i

Points and Authorities I. Interest of Amici Curiae... 1 65 ILCS 5/1-8-1 (West 2012...1 Illinois Pubic Community College Act 110 ILCS 805/ (West 2012...1 110 ILCS 805/3-42.1 (West 2012...2 Huey v. Town of Cicero, 41 Ill. 2d 361, 363 (1968...2 Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act 745 ILCS 10/ (West 2012...2 II. Arguments... 4 A. Introduction... 4 18 McQuillin Mun. Corp. 53:18 (3d ed....4 Zimmerman v. Village of Skokie, 183 Ill.2d 30 (1998... 4, 5 B. Background... 5 U.S. Census Bureau Quick Facts: Will County, Illinois, available at http://quickfacts.census.gov/qfd/states/17/17197.html...5 May Dep t Stores Co. v. Teamsters Union Local No. 743, 64 Ill.2d 153, 159 (1976...5 Finish Line Express, Inc. v. City of Chicago, 72 Ill.2d 131 (1978...5 ii

June 7, 2008 Severe Weather Event: "... TORNADO DAMAGE SURVEYS FOR JUNE 7 2008..." National Weather Service Chicago, Illinois, available at http://www.crh.noaa.gov/news/display_cmsstory.php?wfo=lot&storyid= 13639&source=2...6 C. A brief history of the public duty rule under Illinois law... 7 South v. State of Maryland, 59 U.S. 396...7 Vossler v. DeSmet, 204 Ill. App. 292 (1st Dist. 1917... 7, 8 Culver v. City of Streator, 130 Ill. 238 (1889...7 Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11 (1959...8 Ill. Const. Art. XIII, Sec. 4....8 Huey v. Town of Cicero, 41 Ill. 2d 361 (1969...8 Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 345 (1998...8 Zimmerman v. Village of Skokie, 183 Ill. 2d 30 (1998... 8, 9 DeSmet v. County of Rock Island, 219 Ill. 2d 497, 506 (2006... 8, 9 Barnett v. Zion Park Dist., 171 Ill. 2d 378, 388 (1996...9 D. Abolishing the public duty rule would violate Illinois public policy and lead to absurd results.... 9 Bruns v. City of Centralia, 2014 IL 116998 12... 9, 10 Hess v. Flores, 408 Ill. App. 3d 631, 636 (1st Dist. 2011... 10, 11 Bucheleres v. Chicago Park Dist., 171 Ill. 2d 435, 447 (1996... 10 iii

Marshall v. Burger King Corp., 222 Ill. 2d 422, 436 (2006... 10 18 McQuillin Mun. Corp. 53:18 (3d ed.... 10 Taylor v. Bi-County Health Department, 2011 IL App (5th 090475... 10 Donovan v. Village of Ohio, 397 Ill. App. 3d 844 (3d Dist. 2010... 11 Ware v. City of Chicago, 375 Ill. App. 3d 574 (1st Dist. 2007... 11 Sims-Hearn v. Office of Medical Examiner, 359 Ill. App. 3d 439 (1st Dist. 2005... 11 Alexander v. Consumers Illinois Water Co., 358 Ill. App. 3d 774 (3d Dist. 2005... 11 Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 490 (2001... 11 Barnett v. Zion Park Dist., 171 Ill. 2d 378, 388 (1996... 12 Zimmerman v. Village of Skokie, 83 Ill. 2d 30, 45 (1998... 12 1. The difference in the relationship between a plaintiff who is a private citizen and a defendant who is also a private citizen from the relationship between a plaintiff who is a private citizen and a defendant who is a public entity, official, and/or employee justifies the continued application of the public duty rule....12 Board of Directors for Leveeing Wabash River v. Houston, 71 Ill. 318, 322 (1874... 12 Zimmerman v. Village of Skokie, 83 Ill. 2d 30, 44 (1998... 13 iv

U.S. DEPARTMENT OF LABOR, BUREAU OF LABOR STATISTICS, UNION MEMBERS SUMMARY, available at http://www.bls.gov/news.release/union2.nr0.htm... 14 Laborers Health & Welfare Trsut Fund v. Advanced Lightweight Concrete Co., Inc., 484 U.S. 539, 543 n.5 (1988... 15 5 ILCS 315/14 (West 2012... 15 2. The adoption and application of the Tort Immunity Act also justifies the continuation of the public duty rule....17 Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11 (1959... 17 745 ILCS 10/ (West 2012... 17 Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 44 (1998... 17 Bubb v. Springfield School Dist. 186, 167 Ill. 2d 372, 378 (1995... 17 Barnett v. Zion Park Dist., 171 Ill. 2d 378, 386 (1996... 17, 18 U.S. Census Bureau News Release, August 30, 2012, available at https://www.census.gov/newsroom/releases/archives/governments/cb 12-161.html... 17, 18 Illinois Domestic Violence Act 750 ILCS 60/ (West 2012... 18 Emergency Medical Services Systems Act 210 ILCS 50/ (West 2012... 18 Barnett v. Zion Park Dist., 171 Ill. 2d 378, 386, 388 (1996... 18 Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 45 (1998... 18 v

Hess v. Flores, 408 Ill. App. 3d 631, 636, 638 (1st Dist. 2011... 18 Bucheleres v. Chicago Park Dist., 171 Ill. 2d 435, 447 (1996... 18 Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 490 (2001... 18 III. Conclusion...19 Green v. Chicago Bd. of Educ., 407 Ill. App. 3d 721 (1st Dist. 2011... 19 vi

I. Interest of the Amici Curiae The Illinois Municipal League is a not-for-profit, non-political association of 1,121 municipalities in the State of Illinois. State statute designates the League as the instrumentality of its members. 65 ILCS 5/1-8-1 (West 2012. The League's mission is to articulate, defend, maintain, and promote the interests and concerns of Illinois communities. The Illinois Public Employer Labor Relations Association (IPELRA is a professional, not-for-profit association comprised of more than 300 Illinois public sector management representatives responsible for formulating and executing the labor relations programs for their respective jurisdictions, impacting more than 100,000 Illinois public employees. IPELRA s members work for municipal, county and state governments as well as school districts and state university systems. The Illinois Community College Trustees Association (ICCTA is an organization consisting of member public community college districts organized and operating under the Illinois Pubic Community College Act. 110 ILCS 805/. There are 48 community colleges and 39 college districts in Illinois. The Illinois community college system is the third largest in the nation, educating nearly 1 million students each year. Community college boards have the authority to establish a community college district police department or department of public safety to provide for the protection of 1

community college personnel, students, property, or interests. 110 ILCS 805/3-42.1. Approximately 22 Illinois community colleges have police departments. These police departments ensure the safety of hundreds of thousands of students each year. The IML, IPELRA, ICCTA, and their respective members have a specific interest in the outcome of this matter because the plaintiff and its amicus, the Illinois Trial Lawyers Association, argue that the common law public duty rule -- which provides that public entities owe a duty to the public at large, not to each and every citizen (See, Huey v. Town of Cicero, 41 Ill. 2d 361, 363 (1968 -- has been abolished and is no longer applicable in Illinois jurisprudence due to the enactment of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/ (Tort Immunity Act. The outcome of this matter could have a significant impact upon the financial liability and operations of all members of amici -- particularly counties, municipalities, public employers and employees, community college districts, and the emergency services that each of these may provide -- which will ultimately affect the communities throughout the State and their taxpaying citizens. In addition, depending on this Court s decision, Illinois public employers could face increased (and currently unfunded financial liability that may have a significant impact on the collective bargaining relationship with organized labor. Therefore, amici seek leave to file a joint amici curiae brief so that they can share with this Court the unique 2

perspective of their respective member jurisdictions on the impact that abolishing the public duty rule will have throughout the State of Illinois. 3

II. Arguments A. Introduction According to McQuillin, [t]he public duty rule provides that where a municipality has a duty to the general public, as opposed to a particular individual, breach of that duty does not result in tort liability. 18 McQuillin Mun. Corp. 53:18 (3d ed.. There are many public policy reasons for the public duty rule, and among those reasons: Id. (1 It is impractical to require a public official charged with enforcement or inspection duties to be responsible for every infraction of the law; (2 Government should be able to enact laws for the protection of the public without exposing the taxpayers to open-ended and potentially crushing liability from its attempts to enforce them; (3 Exposure to liability for failure to adequately enforce law designed to protect everyone will discourage municipalities from passing such laws in the first place; and (4 Exposure to liability would make avoidance of liability rather than promotion of the general welfare the prime concern for municipal planners and policymakers. In Zimmerman v. Village of Skokie, 183 Ill.2d 30 (1998, this Court recognized: The public duty rule is a long-standing precept which establishes that a governmental entity and its employees owe no duty of care to individual members of the general public to provide governmental services, such as police and fire protection. (Citation omitted. This rule of nonliability is grounded in the principle that the duty of the governmental entity to preserve the well-being of the community is owed to 4

Id. at 32. the public at large rather than to specific members of the community." (Citation omitted. This amici curiae brief is limited to a discussion of the public policy issues related to the public duty rule. This brief begins with a short background of the facts of this case relevant to this discussion. The brief then provides a brief history of the public duty rule and its place in Illinois law. Finally, the brief concludes with an argument that demonstrates that the abolition of the public duty rule would violate public policy and lead to absurd results because the abolition of the public duty rule would eliminate the duty element of a negligence claim against a local public entity, which would automatically assume from the start of such a claim that a duty is owed. B. Background The facts of this case indicate that the plaintiff s decedent, Coretta Coleman, and her husband, the plaintiff, were residents of Will County. Will County s 2010 population was 677,560 (U.S. Census Bureau Quick Facts: Will County, Illinois, at http://quickfacts.census.gov/qfd/states/17/17197.html, downloaded 11/5/2014. 1 On June 7, 2008, from 5:51pm until 6:30pm, Will County 1 Courts can take judicial notice of public records generated by courts and administrative agencies. See May Dep t Stores Co. v. Teamsters Union Local No. 743, 64 Ill.2d 153, 159 (1976 (taking judicial notice of documents generated by federal labor agency; Finish Line Express, Inc. v. City of Chicago, 72 Ill.2d 131 (1978 (taking judicial notice of report generated by state legislative commission. 5

experienced four separate tornados that caused widespread destruction. (June 7, 2008 Severe Weather Event: "... TORNADO DAMAGE SURVEYS FOR JUNE 7 2008..." National Weather Service Chicago, Illinois, at http://www.crh.noaa.gov/news/display_cmsstory.php?wfo=lot&storyid=13639 &source=2, downloaded 11/4/2014. During this time, the defendant fire protection districts were in storm mode. Between 6:21 and 6:30pm, defendant Orland Fire Protection District contacted 19 separate units and dispatched 17 of them to respond to the fourth tornado alone. On that day at 6:10pm, 19 minutes after the tornados began, Coretta called 911 to report that she was having trouble breathing and needed emergency medical assistance. Despite the storm mode and the tornados, the first ambulance, with an emergency medical technician and a licensed paramedic, arrived at the Coleman residence nine minutes after the call, at 6:19pm. All the doors to the residence were locked, no one answered the door, and they did not see anyone inside the residence when they looked into the windows. Because they had no legal authority for a forced entry, the emergency responders left the residence at approximately 6:29pm and went back into service, pursuant to orders from their superiors. After receiving phone calls of concern from neighbors and friends, the Orland Fire Protection District dispatched a second ambulance, which arrived at 6:51pm -- approximately 22 minutes after the first ambulance left. Within the 6

next minute, Coretta s husband arrived home and let the emergency team into the house, where they found Coretta unresponsive. The plaintiff brought claims for wrongful death and survival against the defendants (the 911 operator, two fire protection districts, and two medical technicians employed by the fire districts, claiming that they were liable for Coretta s suffering and death because their actions or inactions constituted willful and wanton conduct. Before reaching the liability issue, both the trial and appellate courts ruled that the defendants did not owe Coretta, as an individual, a duty of care under the public duty rule, and granted summary judgment to the defendants. As noted, the plaintiff and its amicus claim that the public duty rule does not apply to this case because, according to them, the rule has been abolished by the enactment of the Tort Immunity Act. C. A brief history of the public duty rule under Illinois law. The public duty rule began in England and came to the United States in 1855 in the case of South v. State of Maryland, 59 U.S. 396. In South, the U.S. Supreme Court held that a sheriff who breached a public duty can be punished only by indictment, not by civil action. Id. at 403. The public duty rule, in substance, was enforced in Illinois as early as 1889. The Illinois Appellate Court in Vossler v. DeSmet, 204 Ill. App. 292 (1st Dist. 1917, cited the substance of the Illinois Supreme Court decision in Culver v. City of Streator, 130 Ill. 238 (1889, when it held: 7

... no private action will lie against a municipality for an accident following or resulting from its failure to discharge the duties imposed upon it for the public benefit, saying: For failure to exercise governmental power[,] cities are not liable." Vossler, 204 Ill. App. at 295. Finally, despite the judicial and constitutional removal of sovereign immunity in Illinois, (See, Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11 (1959 and Article XIII, section 4, of the Illinois Constitution of 1970, respectively, this Court has continued to recognize and apply the public duty rule when appropriate, even decades after the Tort Immunity Act was enacted in 1965. (See e.g., Huey v. Town of Cicero, 41 Ill. 2d 361 (1969, noting the maintenance of the public duty rule despite the court decisions holding municipalities liable for affirmative negligent or wilful acts by their employees; Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 345 (1998, which noted, "Despite abolishing common law sovereign immunity in Molitor, this court has nevertheless retained the public duty rule."; and Zimmerman v. Village of Skokie, 183 Ill. 2d 30 (1998, which noted, "Independent of statutory or common-law concepts of sovereign immunity, the general rule is that a municipality or its employees [are] not liable for failure to supply general police or fire protection [and] [t]his rule has been maintained in the face of decisions holding municipalities liable for affirmative negligent or wilful acts by their employees". See also, DeSmet v. 8

County of Rock Island, 219 Ill. 2d 497, 506 (2006. In fact, this Court has specifically stated that:... neither this court's decision in Molitor abolishing sovereign immunity, the General Assembly's passage of the Tort Immunity Act, nor the ratification of the 1970 Illinois Constitution altered the common law public duty rule that a governmental entity generally owes no duty to provide an individual citizen with specific municipal services. Zimmerman, 183 Ill. 2d at 45. This Court s reasoning for maintaining the public duty rule has been that the existence of a duty and the existence of an immunity are separate issues. See DeSmet, 219 Ill. 2d at 507; Zimmerman, 183 Ill. 2d at 45; Barnett v. Zion Park Dist., 171 Ill. 2d 378, 388 (1996. Therefore, the public duty rule still applies in Illinois common law, and the abolition of the rule would turn the law of tort actions against local public entities on its head. D. Abolishing the public duty rule would violate Illinois public policy and lead to absurd results. Under Illinois common law, in all claims of negligence (or willful and wanton conduct, as in the present case against public or private entities, actors, or individuals, the plaintiff must establish that (1 the defendant owed a duty of care; (2 the defendant breached that duty; and (3 the plaintiff incurred injuries proximately caused by the breach of that duty. Bruns v. City of Centralia, 2014 IL 116998 12. Hence, the first element in such an action is 9

to determine whether the defendant owes a duty of care to the plaintiff in the first instance. Where no duty exists, there is no liability. Hess v. Flores, 408 Ill. App. 3d 631, 636 (1st Dist. 2011; Bucheleres v. Chicago Park Dist., 171 Ill. 2d 435, 447 (1996. When determining whether a duty exists in a tort action between private citizens or corporations, Illinois courts will examine the relationship between the parties. See Marshall v. Burger King Corp., 222 Ill. 2d 422, 436 (2006. In doing so, the courts in Illinois consider whether (1 the injury to the plaintiff was reasonably foreseeable; (2 the likelihood of injury; (3 the magnitude of the burden of eliminating or guarding against the injury; and (4 the consequence of placing that burden on the defendant. Bruns, 2014 IL 116998 14. In tort claims against a local public entity, however, when properly pled, the public duty rule is used as a tool by Illinois courts to ensure that governments are not saddled with greater liability than private actors as they conduct the people s business. See, 18 McQuillin Mun. Corp. 53:18 (3d ed.. Although the four elements of a duty described above have been used when examining the duty of a public actor in a negligence claim, when properly pled by the public actor, as in the present case, the public duty rule was applied instead. See e.g., Taylor v. Bi-County Health Department, 2011 IL App (5th 090475; Hess v. Flores, 408 Ill. App. 3d 631 (1st Dist. 2011; 10

Donovan v. Village of Ohio, 397 Ill. App. 3d 844 (3d Dist. 2010; Ware v. City of Chicago, 375 Ill. App. 3d 574 (1st Dist. 2007; Sims-Hearn v. Office of Medical Examiner, 359 Ill. App. 3d 439 (1st Dist. 2005; Alexander v. Consumers Illinois Water Co., 358 Ill. App. 3d 774 (3d Dist. 2005. Considering the difference in the relationship between private and public actors to potential negligence plaintiffs, this difference in examining the duty owed is justified. Furthermore, the rule of law in tort actions in Illinois logically works, as it stands. The courts first look to see whether a duty is owed. In doing so, the court examines the four elements mentioned above, especially in all cases involving non-public actors. If the defendant is a public actor, however, and provided it is properly pled, the court may examine the duty owed under the common law (See Hess, 408 Ill. App. 3d at 638; Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 490 (2001, such as the public duty rule. If the court determines that the private actor owed a duty, the court will then examine the amount of duty owed and the appropriate liability levels. If the court determines that a public actor owed a duty, and provided the defense is properly pled by the public actor, the court may then examine the appropriate provisions of the Tort Immunity Act to determine whether the public actor is immune from liability for the owed duty. Id. 11

This system not only works, it works well, and is a logical approach to negligence claims among the various potential actors. Abolishing the public duty rule would put local public entities, their officials, and their employees on a lower level than private actors in negligence claims, when the position between the public and private actors is completely different. In addition, because the issues of a duty and immunity are distinctly separate issues (See Barnett, 171 Ill. 2d at 388; Zimmerman, 183 Ill. 2d at 45, abolishing the public duty rule would bypass the duty element of a negligence action against a public actor, and, in reality, place the public actor at a greater disadvantage than the private actor. 1. The difference in the relationship between a plaintiff who is a private citizen and a defendant who is also a private citizen from the relationship between a plaintiff who is a private citizen and a defendant who is a public entity, official, and/or employee justifies the continued application of the public duty rule. As this Court once explained: All municipal corporations are created by the State to assist, in some degree, in the maintenance of the good order of the whole community, but, primarily, to administer the local affairs of the city, town or district incorporated. Counties, school districts and road districts, are invested with corporate powers. They are involuntary political or civil divisions of the State, created to assist in the administration of the government. Board of Directors for Leveeing Wabash River v. Houston, 71 Ill. 318, 322 (1874. 12

Regarding the relationship-between-the-parties element of a duty in tort actions, there is a clear difference in the relationship between two private citizens and between a private citizen and a local public entity, official, and/or employee. A private citizen defendant in a negligence action is in a completely different position with the plaintiff than are public entities, officials, and employees. Therefore, the availability of the public duty rule to public actors in tort actions is more than justified. First, there is a difference in issues ratio. Besides police and fire protection and, in this case, emergency medical services, there are numerous agencies/sub-units of local government in each of the approximately 1,300 municipalities in Illinois, including specialized boards, districts, committees, and subcommittees. Each has their own roles, yet all coalesce in order to preserve the well-being of the community as a whole. As this Court has stated, a municipality s duty is to preserve the well-being of the community.... Zimmerman, 183 Ill. 2d at 44. A private citizen, on the other hand, has to simply consider the reasonable foreseeability and likelihood of an injury to another in each of her or his respective endeavors or decisions to not act. Second, there is the defendant-to-potential plaintiff ratio. Compared to the vast number of potential negligence plaintiffs that municipalities encounter, the number of potential negligence plaintiffs for private citizens or corporations is quite limited. Local governmental entities, with a limited 13

staff, have to consider the well-being of everyone that is within or comes within their respective borders -- citizens and visitors alike -- and its entire infrastructure for the benefit of every human being within its borders. Private citizens, by contrast, only have to consider the well-being of those with whom they do or may come into contact. Third, the relationship between private parties is likely more personal than the relationship between private and public parties. This generally allows for a greater degree of control in the interaction between the private parties compared to the myriad and constant contacts between public entities and the general public. Fourth and finally, public entities in Illinois that employ public safety personnel are much more likely than their private sector counterparts to have unionized workforces. See, e.g., U.S. DEPARTMENT OF LABOR, BUREAU OF LABOR STATISTICS, UNION MEMBERS SUMMARY (available at http://www.bls.gov/news.release/union2.nr0.htm ( in 2013, Public-sector workers had a union membership rate (35.3 percent more than five times higher than that of private-sector workers (6.7 percent. By extension, Illinois public sector employers have fewer opportunities for offsetting increased tort liability by simply increasing prices or reducing workers. Especially for unionized police and fire personnel, Illinois public employers cannot simply bargain over a series of cost saving measures to the point of 14

impasse, in hopes of unilaterally implementing a last, best final offer (as private sector employers can do. See generally Laborers Health & Welfare Trsut Fund v. Advanced Lightweight Concrete Co., Inc., 484 U.S. 539, 543 n.5 (1988 (describing in general terms an employer s ability to unilaterally implement its last offer upon reaching a true bargaining impasse. Rather, third party interest arbitrators ultimately control what Illinois public employers can and cannot do in terms of cost saving efforts relating to unionized fire and police personnel. See 5 ILCS 315/14 (describing binding interest arbitration procedures that apply to sworn police, fire and corrections personnel. Moreover, private entities are better positioned to absorb the increased financial liability that would naturally follow any increased tort liability. Public entities, by contrast, are hamstrung to a certain extent by their collective bargaining obligations (including interest arbitration and (inability to raise taxes. Whereas private corporations could simply raise prices, cut jobs, etc. if they face added tort liability, public entities -- especially non-home rule entities -- are constrained in their ability to lower wages, cut personnel, raise taxes, etc. We can look to the facts of this case as a perfect example of the difference of position between private and public actors. Before Coretta called 911, all of Will County was in storm mode because of four tornados running through 15

the county. Due to the enhanced emergency of the severe weather conditions, the public actors were in emergency mode to look out for the well-being of the entire population of the county -- over 677,000 residents, which doesn t include the visitors of and travelers through the county -- and the county s entire infrastructure. The private actors in the county, however, were only legally responsible to the point of not causing injury (negligently, recklessly, or purposefully to those individuals with whom they come into contact. Under these circumstances, it is completely unreasonable to suggest that the public entities in Will County had a legal duty to any single individual or to each and every person within their respective borders as individuals, much less to say that is true for the 102 other Illinois counties, 1300 municipalities, and the thousands of other local governmental entities. Yet, the first ambulance arrived within nine minutes of the call. Their inability to enter the residence to provide medical service to Coretta was not personal, as they had no legal basis for a forced entry -- they were limited by the law, not by any personal reason. Private and public actors who are defendants in negligence claims clearly enjoy different relationships with their respective plaintiffs. The different common law tests in Illinois for each, with the public duty rule applying to public actors, is a logical system of application. Abolishing the public duty rule would make the system illogical. 16

2. The adoption and application of the Tort Immunity Act also justifies the continuation of the public duty rule. Until 1959, local governmental entities were immune from tort liability under the doctrine of sovereign immunity. In 1959, this Court abolished sovereign immunity for local governmental entities in the Molitor decision (supra and, six years later, the Illinois General Assembly enacted the Local Governmental and Governmental Employees Tort Immunity Act (supra. The Tort Immunity Act, however, only grants immunities to units of local government for a variety of governmental functions. The immunities granted in the Act work as an affirmative defense to claims of negligence and, where relevant, willful and wanton conduct. See Zimmerman 183 Ill. 2d at 44; Bubb v. Springfield School Dist. 186, 167 Ill. 2d 372, 378 (1995. The Tort Immunity Act does not impose any new duties upon municipalities. Rather, the Act merely codifies those duties existing at common law, to which the subsequently delineated immunities apply. Barnett, 171 Ill. 2d at 386. The General Assembly, however, cannot anticipate and, hence, codify each and every possible scenario. This is one of the impetuses behind the concept of judicial review. For example, Illinois has 6,968 units of local government. U.S. Census Bureau News Release, August 30, 2012 at https://www.census.gov/newsroom/releases/archives/governments/cb12-161.html, downloaded 10/28/2014. The Tort Immunity Act addresses many of 17

the duties on and immunities for local public entities and their officials and employees. However, the Act does not, nor can it, cover each and every possible scenario, such as for zoning administrators or building inspectors and the like. Because of this fact, the Illinois General Assembly has enacted reactionary legislation over the years, such as the Illinois Domestic Violence Act of 1986 (750 ILCS 60/ and, as in the present case, the Emergency Medical Services Systems Act (210 ILCS 50/, as situations arise. The remaining duties on and immunities for local public entities in negligence suits is left to judicial review and the applicable statutes. As this Court has stated, duties and immunities are distinctly separate concepts. See Barnett, 171 Ill. 2d at 388; Zimmerman, 183 Ill. 2d at 45. Illinois courts must look to the common law and other statutes to determine whether a duty is owed when a local governmental entity is being sued. See Barnett, 171 Ill. 2d at 386. Where no duty exists, there is no liability. Hess, 408 Ill. App. 3d at 636; Bucheleres, 171 Ill. 2d at 447. When it is determined that a local public entity owed a duty in a negligence claim, Illinois courts will then look to the Tort Immunity Act to determine whether the public entity is immune from liability for that duty (See Hess, 408 Ill. App. 3d at 638; Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 490 (2001, provided it is a properly pled defense by the public entity. Therefore, the Tort Immunity Act combined with the application of the public duty rule makes for a logical system of tort actions against a local public entity. 18

III. Conclusion Abolishing the application of the public duty rule would forever change the law of negligence claims against municipalities because a plaintiff would no longer have to prove the existence of a duty in the first instance. With the public duty rule gone, duties to plaintiffs in negligence cases would automatically be assumed. See Green v. Chicago Bd. of Educ., 407 Ill. App. 3d 721 (1st Dist. 2011 as an example. In Green, the Board of Education maintained that, under the public duty rule, it did not owe a duty to the plaintiff. Nevertheless, the court stated: Id. at 727. In this case, although the Board maintains that it did not owe decedent a duty, for our analysis we will assume the Board did owe decedent a duty as Green has pled in order to reach the issue of whether the Board can claim immunity under the [Tort Immunity] Act. (Emphasis added. Hence, when going straight to the examination of immunity in a negligence claim, the element of duty is bypassed as the duty is automatically assumed. Thus, abolishing the public duty rule would violate settled public policy in Illinois in regards to negligence claims, and it would lead to absurd results by placing public defendants in negligence claims at an unfair disadvantage. In addition, this disadvantage to local governmental entities of costly claims for a standard of care due the individual versus the community is unsustainable, unattainable, and unwarranted. No unit of government can afford a standard 19

of care that compels a duty to an individual because it is simply a burden that cannot be borne and for the local governmental unit to continue to financially survive. For the reasons set forth in this brief, amici requests this Honorable Court to affirm the decision of the Appellate Court. Respectfully submitted, Illinois Municipal League Illinois Public Employer Labor Relations Association Illinois Community College Trustees Association BY: ROGER HUEBNER Deputy Executive Director and General Counsel Illinois Municipal League 500 East Capitol Avenue Springfield, Illinois 62701 (217 525-1220 James J. Powers, Esq. Attorney for Illinois Public Employer Labor Relations Association Clark, Baird, Smith LLP 6133 N. River Road Suite 1120 Rosemont, Illinois 60018 (847 378-7707 Todd K. Hayden, Esq. Attorney for Illinois Community College Trustees Association Robbins Schwartz 9550 Bormet Drive Suite 201 Mokena, Illinois 60448 (815 722-6560 20

No. 117952 IN THE SUPREME COURT OF ILLINOIS MARCUS COLEMAN, As Successor Administrator of the Estate of Coretta Coleman, vs. Plaintiff-Appellant, EAST JOLIET FIRE PROTECTION DISTRICT, et al. Defendants-Appellees. On Appeal from the Appellate Court of Illinois, District No.: 3-12-0583 There Heard on Appeal from the Circuit Court of the Twelfth Judicial Circuit, Will County, Illinois. Case No. 09-L-817 The Honorable Michael J. Powers, Judge Presiding Certificate of Compliance The undersigned certifies that this brief conforms to the requirements of Rules 341(a and (b. The length of this brief, excluding the pages containing the Rule 341(d cover, the Rule 341(h(1 statement of points and authorities, the Rule 341(c certificate of compliance, the certificate of service, and those matters to be appended to the brief under Rule 342(a, is 20 pages. ROGER HUEBNER Deputy Executive Director and General Counsel Illinois Municipal League 21