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09/16/87 G. Raymond Gavery, D/B/A v. the County of Lake Et Al.

September 16, 1987





513 N.E.2d 1127, 160 Ill. App. 3d 761, 112 Ill. Dec. 518 1987.IL.1352

Appeal from the Circuit Court of Lake County; the Hon. John L. Hughes, Judge, presiding.


JUSTICE UNVERZAGT delivered the opinion of the court. REINHARD and DUNN, JJ., concur.


Plaintiff, Dr. G. Raymond Gavery, sued defendants, the County of Lake and Roger D. Sloot, for libel. The circuit court dismissed the complaint on the grounds that the suit was barred by the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1985, ch. 85, par. 1-101 et seq.).

Plaintiff appeals, contending that the Act does not apply to Sloot, since he was merely performing a ministerial task, and that the Act is unconstitutional as applied to defendant County of Lake.

According to the allegations of the complaint, plaintiff is the owner, operator and primary physician of the Lakewood Medical Center. Defendant Sloot is the personnel director of the Lake County Department of Human Resources. On March 8, 1985, Sloot circulated a letter to Lake County employees who belonged to the HAP/HMO, advising them that they would no longer be able to select Lakewood as a health care provider. The letter referred to a number of complaints from county employees regarding the clinic, including "misdiagnosed medical problems, non-referrals to specialists" and patients "being released from the hospital too soon." The letter informed the employees that they would have the option of remaining with HAP/HMO and choosing another provider, switching to another HMO, or opting for traditional health insurance.

On March 4, 1986, plaintiff filed a one-count complaint in the circuit court of Lake County against Sloot and the county. The complaint alleged that Sloot's letter falsely accused plaintiff of committing medical malpractice on county employees and sought damages for harm to plaintiff's reputation. Defendants moved to dismiss the complaint. The county relied on section 2-107 of the Act, which provides that "[a] local public entity is not liable for injury caused by any action of its employees that is libelous or slanderous." Ill. Rev. Stat. 1985, ch. 85, par. 2-107.

Sloot argued as a ground for dismissal section 2 -- 201 of the Act. Section 2 -- 201 provides:

"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.)

The court dismissed the complaint as to both defendants, and plaintiff appeals.

Plaintiff first contends that section 2-201 is not applicable to defendant Sloot because sending the letter was a ministerial, rather than discretionary, act. Public officials are immune from liability for acts falling within their official discretion. (Ill. Rev. Stat. 1985, ch. 85, par. 2-201; People v. Patrick J. Gorman Consultants, Inc. (1982), 111 Ill. App. 3d 729, 731.) Discretionary acts have been defined as those "which are unique to the particular public office and not merely ministerial in nature." (111 Ill. App. 3d 729, 731.) Conversely, ministerial acts are those "which a person performs on a given state of facts in a prescribed manner, in obedience to the mandate of legal authority," and without reference to the official's discretion as to the propriety of the act. Larson v. Darnell (1983), 113 Ill. App. 3d 975, 977.

The parties have not referred us to any case in which the writing of a letter similar to the one in question was considered. *fn1 From the above definitions, however, we think that writing the letter was clearly a discretionary act on the part of Sloot. As county personnel director, the administration of county health insurance benefits would clearly fall within his area of responsibility. The complaint does not allege that Sloot sent the letter pursuant to any statute, ordinance, court decision, or administrative directive. It does not allege that Lake County had any policy requiring such an action to be taken. Rather, Sloot was responding to what he perceived to be a problem regarding county medical benefits. We ...

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