The opinion of the court was delivered by: Justice McMORROW
The "special duty" doctrine was first recognized by this court in Huey v. Town of Cicero, 41 Ill. 2d 361 (1968), as an exception to the common law "public duty" rule. 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. Huey, 41 Ill. 2d at 363. This rule of non-liability is grounded in the principle that the duty of the governmental entity to "preserve the well-being of the community is owed to the public at large rather than to specific members of the community." Schaffrath v. Village of Buffalo Grove, 160 Ill. App. 3d 999, 1003 (1987). The special duty doctrine arose as a judicially created exception to the non-liability principles of the public duty rule, and is applicable in certain limited instances where a governmental entity has assumed a special relationship to an individual "so as to elevate that person's status to something more than just being a member of the public." Schaffrath, 160 Ill. App. 3d at 1003.
The principal issue in this appeal is whether the "special duty" doctrine violates the Illinois Constitution of 1970 when it is applied by the courts to override the immunities and defenses afforded to governmental entities by the Illinois General Assembly in the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 1994)). Defendants contend that when the special duty doctrine operates to nullify the immunities and defenses available under the Tort Immunity Act, two provisions of the Illinois Constitution of 1970 are violated: article XIII, section 4, which provides that the doctrine of sovereign immunity is abolished "[e]xcept as the General Assembly may provide by law" (Ill. Const. 1970, art. XIII, §4); and the separation of powers clause under article II, section 1 (Ill. Const. 1970, art. II, §1), which provides that no branch of government "shall exercise powers properly belonging to another." For the reasons which follow, we hold that the operation of the special duty doctrine to negate the immunities and defenses provided to governmental entities by the Illinois legislature pursuant to the provisions of the Tort Immunity Act violates both constitutional provisions.
This appeal arises from a series of occurrences initiated on July 25, 1982, when Scott Zimmerman was arrested at 11:20 p.m. by Skokie police after he broke a glass mug as he was leaving Houlihan's Restaurant & Bar in the Old Orchard Shopping Center. At the outset, we note that for purposes of the narrow legal issue presented in this appeal, the parties do not dispute the underlying facts in this litigation. Therefore, we include only a general Discussion of these background facts.
Upon Zimmerman's arrest, he was taken to the Skokie police station/jail, where he refused to be fingerprinted and became extremely upset. As a result of his refusal to cooperate with the fingerprinting procedure, the police placed Zimmerman alone in a cell in the men's cellblock at approximately 1 a.m. After he was placed in the cell, Zimmerman punched and kicked at the walls, screamed, and rattled his cell bars. At about the same time Zimmerman was placed into the cell, his family members arrived at the Skokie jail. Zimmerman's parents informed the officers that their son had been medically diagnosed as a claustrophobe, that he was under the care of a psychiatrist, and that he should be removed from the cell because he could not tolerate such confinement. At her request, Zimmerman's mother was allowed into the cellblock to calm Zimmerman. However, her efforts were unsuccessful, and she returned to the public area of the jail.
Although the statements made by Zimmerman's parents to the Skokie police concerning Zimmerman's claustrophobia were true, the police refused to believe these declarations and informed Zimmerman's family members that he would not be removed from the cell until he calmed down and could be fingerprinted. The relationship between Zimmerman's parents and the police thereafter became confrontational, and the family members were ordered to leave the police station. Zimmerman's family members complied after being assured by the officers that the officers would keep a watch over Zimmerman.
During that evening, Zimmerman was removed from his cell for a second attempt at fingerprinting, and, upon his removal, he calmed down. However, Zimmerman once again refused to comply with the fingerprinting procedure and was replaced in the cell, where his violent behavior resumed. Thereafter, one of the officers checked on Zimmerman every 15 minutes and marked Zimmerman's physical condition as "okay" on the jail log. When an officer looked in on Zimmerman at approximately 2:45 a.m., Zimmerman was found lying in the cell with his hands around his neck, complaining that he could not breathe and gasping for air. At that time, Zimmerman was also screaming that he was going to kill himself because police had beaten him up for no reason. Fifteen minutes later, at approximately 3 a.m., when Zimmerman was again looked in on by an officer, Zimmerman was found hanging from the bars of his cell with his jeans around his neck, his body facing away from the bars and his legs looped through the bars.
Zimmerman was resuscitated at the Skokie jail by the officers, who administered CPR. Zimmerman was thereafter transported to a hospital where it was determined that blood loss to his brain as a result of the hanging caused him to suffer permanent brain damage that impaired his ability to work and care for himself. Medical workers also found that Zimmerman had a cut under his right eye, contusions and bruises on his chest and arms, and a deep gash on his shin, which resembled the shape of a shoe or boot tip.
Subsequently, Zimmerman was declared a disabled person by the probate court of Cook County and his father, Irving, was appointed his guardian. Irving (plaintiff) thereafter filed suit on behalf of his son to recover damages for personal injuries Zimmerman suffered during the period he was in the custody of the Skokie police. Plaintiff's cause of action, originally filed on February 23, 1983, named as defendants the Village of Skokie and the police officers involved in these incidents.
Plaintiff's case was dismissed with prejudice as a sanction by the trial court on March 27, 1986, after plaintiff failed to comply with trial court orders directing Zimmerman to appear for a deposition and requiring plaintiff to respond to defendants' written discovery. Upon the trial court's denial of plaintiff's petition under section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-1401) to vacate its dismissal order, plaintiff appealed. The appellate court vacated the circuit court's denial of plaintiff's section 2-1401 petition and remanded the cause to the trial court for further proceedings. Zimmerman v. Village of Skokie, 174 Ill. App. 3d 1001 (1988). Defendants' petition for rehearing was denied by the appellate court, and this court denied defendants' petition for leave to appeal. Zimmerman v. Village of Skokie, 124 Ill. 2d 563 (1989).
Following remand to the trial court, plaintiff's case proceeded against defendants. On January 18, 1994, shortly before trial in this matter, the circuit court ruled on defendants' motion to strike and dismiss all counts of plaintiff's complaint. Defendants moved to dismiss plaintiff's claims on the pleadings on the basis that they were barred by various provisions of the Tort Immunity Act. Pursuant to section 4-105 of the Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 4-105) and section III(D) of the Municipal Jail and Lockup Standards as they read in 1982, the trial court granted defendants' motion only as to count V of the complaint, which asserted a cause of action in negligence. Section 4-105 of the Act read as follows:
"Neither a local public entity nor a public employee is liable for injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody; but a public employee, and the local public entity where the employee is acting within the scope of his employment, is liable if the employee knows or has reason to know from his observation that the prisoner is in need of immediate medical care and fails to take reasonable action to summon medical care. Nothing in this Section requires the periodic inspection of prisoners." Ill. Rev. Stat. 1983, ch. 85, par. 4-105. *fn1
In count V, plaintiff alleged that defendants breached their duty to take reasonable action to summon medical care for Zimmerman. The trial judge determined that section 4-105 did not establish a cause of action in negligence when read in conjunction with section 2-202 of the Tort Immunity Act, which provides:
"A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton negligence." Ill. Rev. Stat. 1981, ch. 85, par. 2-202.
Although the allegations sounding in negligence in count V were dismissed, the trial Judge commented that plaintiff could offer evidence that the defendants' alleged failure to provide medical care amounted to wilful and wanton misconduct.
The trial Judge denied the defendants' motion to strike and dismiss the remaining five counts of the complaint. Counts I and II asserted causes of action based upon alleged acts of willful and wanton misconduct, including defendants' placement of Zimmerman in a cell despite their awareness that he was claustrophobic and unstable.
Counts III and IV of plaintiff's complaint, according to the trial Judge, were "virtual mirror images of Counts 1 and 2, but they sound in negligence." Although the trial court agreed with defendants' assertion that section 2-202 of the Tort Immunity Act applied to these counts, he determined that at the pleading stage such a finding was not dispositive, because whether a police officer was engaged in the "execution and enforcement of any law" as contemplated under section 2-202 is a factual determination which could not be made at the pleading stage.
Defendants also unsuccessfully argued four other defenses under the Tort Immunity Act to counts III and IV. Defendants first asserted protections pursuant to section 4-102 of the Act, which provides:
"[n]either a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service ***." Ill. Rev. Stat. 1981, ch. 85, par. 4-102.
The trial court determined that "[s]section 4-102 is not applicable to this case because it is not intended to apply to a jail lockup situation such as this. That section applies to the general public's right to police protection."
Defendants next argued the defenses contained in section 4-103 of the Act, which provides:
"Neither a local public entity nor a public employee is liable for failure to provide a jail, detention or correctional facility, or if such facility is provided, for failure to provide sufficient equipment, personnel or facilities therein." Ill. Rev. Stat. 1981, ch. 85, par. 4-103.
The trial court held that this section would not bar plaintiff from proceeding on his claims in this case.
Lastly, in support of their motion, defendants asserted sections 6-105 and 6-106(a) of the Act (Ill. Rev. Stat. 1981, ch. 85, pars. 6-105, 6-106(a)). The trial Judge determined these sections were inapplicable because they are limited to causes involving medical, hospital, and public health facilities, and were "not intended to apply to jail lockups."
Finally, the trial court denied defendants' motion to strike and dismiss count VI of plaintiff's complaint, which alleged that despite the availability of any statutory immunities defendants could raise to plaintiff's negligence claims under the Tort Immunity Act, defendants may be found liable under a negligence theory pursuant to the special duty doctrine. The trial Judge rejected defendants' contention that under the Illinois Constitution of 1970, the General Assembly was vested with the sole authority to define the principles governing sovereign immunity, and that the special duty doctrine, operating as an exception to the Tort Immunity Act, was therefore invalid. In its written ruling, the trial court determined that "the special duty exception still exists outside the Tort Immunity Act and that it does so without offending any provision of the Illinois Constitution."
The jury found in favor of the defendants and against plaintiff on all five counts. Subsequently, plaintiff filed a motion for a new trial, which was granted by the circuit court. Defendants, pursuant to Rule 306(a)(1) (166 Ill. 2d R. 306(a)(1)), then petitioned the appellate court for leave to appeal the trial court's order granting plaintiff a new trial. In their petition, defendants raised numerous issues contending that the trial court abused its discretion in setting aside the jury verdict for defendants and granting plaintiff a new trial on all issues.
Defendants thereafter filed a supplemental brief in the appellate court additionally challenging the trial court's pretrial ruling on their motion to strike and dismiss, focusing upon the trial court's allowance of plaintiff to proceed on his negligence claims under the special duty doctrine as an exception to governmental tort immunity. As they did before the trial Judge, defendants argued in the appellate court that the Illinois Constitution of 1970 vested the General Assembly with the sole authority to determine governmental tort immunity and that the operation of the special duty doctrine to abrogate such immunities is contrary to the grant of that power. In the alternative, defendants argued that the requirements of the special duty doctrine were not present in this case, and, therefore, plaintiff's negligence claims should have been barred by the Tort Immunity Act.
The appellate court entered a summary order affirming the trial court and remanding the cause for a new trial. No. 1-94-2448 (unpublished order under Supreme Court Rule 23). In its order, the appellate court not only articulated various grounds for its decision affirming the trial court's grant of a new trial, but also rejected the arguments proffered by the defendants in their supplemental brief that the operation of the special duty doctrine to negate governmental immunities provided under the Tort Immunity Act is unconstitutional. Thus, the appellate court concluded that plaintiff could properly proceed under the special duty doctrine, thereby allowing the jury to consider his negligence claims.
We granted the petition for leave to appeal from the appellate court's judgment filed by defendants Village of Skokie and certain defendant police officers (166 Ill. 2d R. 315(a)). We also allowed amicus curiae briefs to be filed by the City of Chicago, the Du Page Mayors and Managers Conference, the Illinois Association of School Boards, the Illinois Governmental Association of Pools, the Illinois Municipal League, the Illinois Park and Recreation Association, the Municipal Insurance Cooperative Agency and High-Level Excess Liability Pool, the Northwest ...