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Christensen v. City of Bloomington

OPINION FILED SEPTEMBER 15, 1986.

JAMES CHRISTENSEN, SR., ADM'R OF THE ESTATE OF MARK B. CHRISTENSEN, DECEASED, PLAINTIFF-APPELLANT,

v.

THE CITY OF BLOOMINGTON ET AL., DEFENDANTS (JAMES ROGERS ET AL., DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of McLean County; the Hon. Luther H. Dearborn, Judge, presiding.

JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

On June 11, 1984, plaintiff, James Christensen, Sr., as the administrator of the estate of Mark B. Christensen, deceased, filed suit in the circuit court of McLean County against the city of Bloomington (city) and the county of McLean (county). He sought monetary damages for the alleged negligence which caused the wrongful death of the deceased and for the pain and suffering the deceased experienced at the time of the occurrence. By subsequent amendments, the Board of Regents of the Regency Universities System of the State of Illinois (Board), James Rogers, Scott Tysen, Lerinda Saint, and Frank R. Bush were added as additional defendants. The latter defendants moved to dismiss the complaint as to them on grounds of governmental immunity.

On October 8, 1985, the court dismissed the complaint as to the Board and on December 15, 1985, the court dismissed the complaint as to the individual defendants. On February 25, 1986, the court found there was no just reason for delaying enforcement or appeal of the December 15, 1985, order. Plaintiff has appealed. We affirm.

The complaint alleges that on May 30, 1983: (1) the city owned a body of water and surrounding land and leased these properties to the county; (2) the county had entered into a contractual agreement with Illinois State University (University), an institution operated by the Board, for a boat-rental concession to be operated by the University; (3) defendant Rogers headed the department of the University assigned to operate the concession; (4) defendant Tysen was the supervisor in charge of the concession; (5) defendants Saint and Bush were students employed to operate the rental concession; (6) the deceased rented a canoe from the concession at a time of high winds; (7) while the deceased was paddling the canoe, it capsized, and he was killed; and (8) the negligence of each of the foregoing defendants was a proximate cause of the death of the deceased and his pain and suffering experienced after the canoe capsized and before his death.

The order of dismissal entered December 15, 1985, from which appeal is taken, was applicable only to the individual defendants, all of whom were employees of the Board. In Robb v. Sutton (1986), 147 Ill. App.3d 710, this court ruled upon the question of application of the governmental-immunity doctrine to suits against governmental employees for alleged torts committed in the course of their employment. The opinion noted that the Illinois Constitution of 1970 (Ill. Const. 1970, art. XIII, sec. 4) abolished governmental immunity except as the legislature might subsequently provide and that acting pursuant thereto the legislature passed certain legislation restoring that immunity. One such piece of legislation prohibited making the State a defendant in any of the constitutional courts of the State and relegated such a proceeding to a tribunal known as the Court of Claims. (Ill. Rev. Stat. 1983, ch. 127, par. 801.) Actions against such State entities as the defendant Board have been held to be actions against the State and subject to the foregoing prohibition. Ellis v. Board of Governors of State Colleges & Universities (1984), 102 Ill.2d 387, 466 N.E.2d 202.

Here, as in Robb, we are concerned with immunity that is possessed by officers and employees of entities which are considered to be the State for purposes of immunity. There, this court discussed the application of the immunity doctrine to various types of suits. We need not repeat that discussion here. However, because some of the individual defendants are alleged to hold somewhat menial positions, we deem it desirable to discuss in greater detail the application of the immunity of officers and employees to suits for monetary damages for torts. As explained there, under some circumstances, employees of entities with State immunity are personally liable for torts they commit in the course of their employment, and under other circumstances they have immunity.

In arguing that the situation here does not give rise to immunity for the individual defendants, plaintiff relies, as did the plaintiff in Robb, upon the case of Madden v. Kuehn (1978), 56 Ill. App.3d 997, 372 N.E.2d 1131, and the subsequent cases of Gocheff v. State Community College (1979), 69 Ill. App.3d 178, 386 N.E.2d 1141, and Watson v. St. Annes Hospital (1979), 68 Ill. App.3d 1048, 386 N.E.2d 885. Madden and Watson concern malpractice suits against physicians employed by State hospitals. Immunity was denied on the basis that the duties alleged to be breached were those which all physicians owe to their patients and not duties arising because they held a State position. The Madden court noted that the suit could not be said to control the operation of the State and would not subject the State to liability, because any judgment would be paid by the then-deceased physician's estate or his liability carrier. The Madden court also held that public official's immunity was not applicable because the physician's conduct giving rise to the malpractice claim was ministerial rather than discretionary. In Gocheff, citing Madden, the court held that a State employee driving a State vehicle in the course of his employment was not immune from liability for negligent driving, because his duty of care was that which all drivers owe to the public.

We conclude that the question of whether the conduct attributed to the individual defendants was discretionary or ministerial is dispositive here. In deciding that question in Madden, the court quoted from Prosser (Prosser, Torts sec. 132, at 988 (4th ed. 1971)), that the distinction between the two types of acts is "`finespun and more or less unworkable.'" (Madden v. Kuehn (1978), 56 Ill. App.3d 997, 1001, 372 N.E.2d 1131, 1134). The court concluded that the skill and judgment required to perform an act was not, of itself, sufficient to determine whether the act was discretionary or ministerial. Rather, the question was whether the act was of a governmental nature. The court cited Mora v. State (1977), 68 Ill.2d 223, 369 N.E.2d 868, and Lusietto v. Kingan (1969), 107 Ill. App.2d 239, 246 N.E.2d 24.

In Mora, a district superintendent of the Illinois Department of Transportation was held to be immune from tort liability for negligence that might have occurred as a result of his failure to conduct a survey to determine whether a no-passing zone should have been established for a stretch of highway where construction work was taking place. Similarly, in Lusietto, a maintenance supervisor for certain of the highways within a district was held to be immune from liability for failure to take action to have a dangerous hole in a highway repaired even if he knew or should have known of the defect. The decision as to whether to repair was determined to be discretionary in nature.

Here, the amended complaint alleged that the individual defendants were negligent, because they "committed or omitted" one or more of the following acts:

"(a) Permitted the leasing, rental or usage of a water craft when wind speeds were excessive for safe operation.

(b) Permitted the leasing or rental of water crafts or canoes without any consideration of the expertise of the individual renting the canoe.

(c) Leased boats and canoes that were not seaworthy in high wind conditions during times of high wind.

(d) Permitted the boat rental concession to be operated by individuals whose training was insufficient for the standard necessary to properly ...


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