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08/03/88 Peggy Lou Lietsch, v. Amanda Allen

August 3, 1988

PEGGY LOU LIETSCH, PLAINTIFF

v.

AMANDA ALLEN, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLEE (THE CITY OF GALESBURG, THIRD-PARTY, DEFENDANT-APPELLANT)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

527 N.E.2d 978, 173 Ill. App. 3d 516, 123 Ill. Dec. 340 1988.IL.1198

Appeal from the Circuit Court of Knox County; the Hon. William D. Henderson, Judge, presiding.

APPELLATE Judges:

JUSTICE WOMBACHER delivered the opinion of the court. HEIPLE, J., concurs. JUSTICE SCOTT, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

This case comes before this court as a permissive interlocutory appeal pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308) and concerns the application of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, par. 1-101 et seq.) and the Contribution Act (Ill. Rev. Stat. 1985, ch. 70, pars. 301 through 305) to a municipality.

Plaintiff, Peggy Lietsch, a Galesburg police officer, was directing traffic when a vehicle driven by defendant, Amanda Allen, struck and injured her. Amanda allegedly drove the wrong way and entered a closed intersection pursuant to instructions she received from another police officer. Initially, Peggy sued Amanda for negligence; then Amanda impleaded the City of Galesburg seeking contribution for allegedly:

"(a) Failing to furnish or require the wearing of safety clothing to warn traffic . . .

(b) Failing to keep a proper lookout for vehicles approaching from the left . . .."

Galesburg defended by claiming it is protected by sections 2-201 (municipality immunity from suit for discretionary/policy determinations), 2-202 (liability only for willful and wanton negligence), and 2-109 (no vicarious municipality liability) of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, pars. 2-201, 2-202, 2-109), with which Amanda disagreed.

On February 24, 1987, Galesburg answered the amended third-party complaint and asserted affirmative defenses based on the Tort Immunity Act following the denial of its various preanswer motions. On September 18, 1987, the trial court struck Galesburg's affirmative defenses; however, the trial court reconsidered and certified the following issue for appeal on October 1, 1987: "Whether a municipality is precluded from asserting the immunities permitted under the Tort Immunity Act in an action brought under the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1985, ch. 70, sec. 3-1-305 [ sic ])" (hereinafter the Contribution Act). In other words, is Galesburg immune from contribution under the Tort Immunity Act?

The Tort Immunity Act derogates the common law and must be strictly construed. (Rio v. Edward Hospital (1984), 104 Ill. 2d 354, 472 N.E.2d 421.) The supreme court held the Tort Immunity Act must be strictly construed against the public entity involved. (Reynolds v. City of Tuscola (1971), 48 Ill. 2d 339, 342, 270 N.E.2d 415.) Whenever provisions of the Tort Immunity Act have conflicted with other legislation, the supreme court has carefully considered the history and policies of each. Traditional governmental immunity applies to this discretionary activity in which Galesburg was involved. According to section 2-201 of the Tort Immunity Act, a public official is immune from liability for a "determination of policy or the exercise of discretion." (Ill. Rev. Stat. 1985, ch. 85, par. 2-201.) There is a protection from liability even though the exercise of discretion may have been abused. The Illinois courts have consistently protected public officials (and the employing agency) from liability for such exercise of discretion. Only section 2-202 of the Tort Immunity Act allows imposition of liability for willful and wanton misconduct. Ill. Rev. Stat. 1985, ch. 85, par. 2-202.

For example, in Fustin v. Board of Education of Community Unit District No. 2 (1968), 101 Ill. App. 2d 113, 242 N.E.2d 308, the school district was protected by this immunity for allegedly implementing improper procedures to control a basketball game. In Fryman v. JMK/Skewer, Inc. (1985), 137 Ill. App. 3d 611, 484 N.E.2d 909, the county health department was immune from liability for allegedly failing to timely close a restaurant that supposedly served contaminated food. In Thiele v. Kennedy (1974), 18 Ill. App. 3d 465, 309 N.E.2d 394, a jail inmate sued the sheriff for willful and wanton misconduct for housing her with allegedly dangerous persons. This court held that section 2 -- 201 barred the action as a matter of law. This court stated:

"Section 2 -- 201 incorporates in statutory form all or at least a substantial part of existing case law governing employee immunities. The principle is that public officers should not be liable in tort for injuries arising out of the exercise of governmental powers vested in good faith if the powers are discretionary as opposed to ministerial in nature. The principle, known as quasi-judicial immunity, was derived from the immunity enjoyed by Judges ...


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