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09/11/87 the Village of Lake In the v. Laidlaw Waste Systems

September 11, 1987

THE VILLAGE OF LAKE IN THE HILLS ET AL., PLAINTIFFS-APPELLEES

v.

LAIDLAW WASTE SYSTEMS, INC., DEFENDANT-APPELLANT (THE COUNTY OF MCHENRY ET AL., DEFENDANTS)

"A LOCAL PUBLIC ENTITY IS NOT LIABLE FOR AN INJURY RESULTING FROM AN ACT OR OMISSION OF ITS EMPLOYEE WHERE THE EMPLOYEE IS NOT LIABLE." (ILL. RE

v.

STAT. 1985, CH. 85, PAR. 2-109.)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

513 N.E.2d 598, 160 Ill. App. 3d 427, 112 Ill. Dec. 184 1987.IL.1326

Appeal from the Circuit Court of McHenry County; the Hon. Michael J. Sullivan, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. HOPF and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Plaintiffs-appellees, the village of Algonquin and the village of Lake in the Hills (villages), obtained a preliminary injunction against defendant-appellant, Laidlaw Waste Systems, Inc. (Laidlaw), the McHenry County board, the Regional Pollution Control Board Facility committee and others prohibiting defendants from continuing hearings on Laidlaw's application for siting approval of a non-hazardous landfill in McHenry County. The injunction was subsequently overturned by this court in Village of Lake in the Hills v. Laidlaw Waste Systems, Inc. (1986), 143 Ill. App. 3d 285, and on remand Laidlaw sought damages from the villages under section 11-110 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 11-110). The circuit court held that the villages were immune from such liability under the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 1-101 et seq.) (hereinafter referred to as the Immunity Act). Laidlaw was given leave to amend, but elected to stand on its original petition. The villages' complaint was dismissed, and Laidlaw appeals the dismissal of its petition for injunction damages.

This appeal presents a single question. Does the Immunity Act render villages immune from damages occasioned by the issuance of a wrongful preliminary injunction where the petition seeking such damages did not allege that the villages had sought the injunction maliciously or without probable cause? We hold that it does.

Section 11 -- 110 of the Illinois Code of Civil Procedure provides as follows:

"In all cases where a temporary restraining order or a preliminary injunction is dissolved by the circuit court or by the reviewing court, the circuit court, after the dissolution of the temporary restraining order or preliminary injunction, and before finally disposing of the action shall, upon the party claiming damages by reason of such temporary restraining order or preliminary injunction, filing a petition under oath setting forth the nature and amount of damages suffered, determine and enter judgment in favor of the party who was injured by such temporary restraining order or preliminary injunction for the damages which the party suffered as a result thereof, which judgment may be enforced as other judgments for the payment of money. However, a failure so to assess damages as hereinabove set out shall not operate as a bar to an action upon the injunction bond." Ill. Rev. Stat. 1985, ch. 110, par. 11-110.

The circuit court here dismissed Laidlaw's petition for such damages based on the Immunity Act. Laidlaw concedes that the Fourth District of this court, in Village of Wilsonville v. Earthline Corp. (1978), 65 Ill. App. 3d 392, has held that the Immunity Act shields a village from liability for injunction damages. Laidlaw urges this court, however, to reconsider the Wilsonville holding and to adopt the reasoning of the Wilsonville Dissent, arguing that we are not bound by the decision of the Fourth District.

The Wilsonville majority relied on what are now the following three provisions of the Immunity Act:

"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." (Ill. Rev. Stat. 1985, ch. 85, par. 2-201.)

"A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, unless he acts maliciously and without probable cause." (Ill. Rev. Stat. 1985, ch. 85, par. 2-208.)

The court stated that a municipal entity acts by and through its officers, and that the wrong in obtaining an invalid injunction thus could only be created by the act of municipal employees. (Village of Wilsonville v. Earthline Corp. (1978), 65 Ill. App. 3d 392, 394.) The court also noted that the filing of the injunction proceeding was necessarily the product of the exercise of official discretion. (65 Ill. App. 3d 392, 394.) As in this case, there was no contention that any public employee acted maliciously or without probable cause in instituting the proceeding, so according to prior case law and the above-quoted sections of the Immunity Act, the employees were immune from personal liability for the good-faith performance of their discretionary duties. (65 Ill. App. 3d 392, 394.) Since the individual employees were immune from personal ...


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