Beyond Coleman: The Practical Result of the Abolishment of the Public Duty Rule

February 4, 2016

The Coleman v. East Joliet Fire Protection District decision has grabbed local government headlines over the past few weeks, but the case is a far cry from exposing municipalities to unlimited liability. Still, all local governments are strongly encouraged to consider the practical implications of the decision as it pertains to liability insurance and 911 dispatch procedures.

Initially, the facts in Coleman were that a 911 call was made by a woman who reported not being able to breathe. The call was transferred without preliminary explanation from the 911 center to the fire district’s dispatch center, where the dispatcher was unable to talk with the caller who presumably was no longer able to speak. This transfer from the 911 center to a separate dispatch center is called “call fracturing,” meaning that the caller is not initially speaking to the person who would dispatch emergency personnel. A separate transfer and communication is necessary between the 911 center and the actual dispatch center with call fracturing.

The consequence was that the dispatcher never learned that the caller was having difficulty breathing and when emergency personnel arrived at the address and received no response, they did not believe they had a basis to force entry into the house. Emergency personnel left the scene and a neighbor later called 911 again, resulting in emergency personnel arriving to the scene a second time and ultimately gaining access to the house, through the woman’s husband who had just returned home, 41 minutes after the initial call was made. The woman was already deceased.

A lawsuit was filed against the 911 center, the fire protection district, and individually named the 911 operator, the district’s dispatcher, and the ambulance crew. The suit alleged 14 counts of negligence and 14 counts of willful misconduct against the various defendants. The trial court dismissed the negligence counts outright stating that statutory immunities under the Emergency Medical Service Systems Act and Emergency Telephone System Act barred suit. The trial court later granted summary judgment to the defendants on the remaining willful misconduct counts by applying the Public Duty Rule, which is not a statute but common law. The Public Duty Rule states, generally, that local governments serve the general public and do not owe a duty to any individual citizens, and thus victims of wrongful acts of emergency response personnel, have no basis to bring suit against the government actors. The underlying economic policy is that the public pays for the services, and the public should not have to pay for liability arising from those services which are for the benefit of the public in general not individuals, particularly emergency response services.

The Illinois Supreme Court ruled, in a highly divided decision, that the Public Duty Rule was abolished and remanded the willful and wanton misconduct claims to the lower court. Significantly, the negligence counts remained dismissed because other statutory immunities prevented a lawsuit on the basis of negligent misconduct.

The key to understanding the Coleman ruling is that “willful and wanton” misconduct is now actionable by a plaintiff against a local government defendant in similar circumstances. Willful and wanton misconduct is loosely defined by Illinois courts as misconduct that is more than negligence but less than an intentional act. One attempt to define such an act is when it is done “with a conscious disregard or indifference for the consequences when the known safety of other persons was involved.”

It is unclear that the plaintiff will be able to establish willful and wanton misconduct in Coleman. The fuller context is that on the evening the call was made, the area had been hit by a tornado which resulted in several 911 calls being made and several resulting emergency response dispatches. While there were multiple procedural missteps committed by more than one person in the response process, it is difficult to assume that any actions rose to the level of being “indifferent” to the safety of others, under the circumstances.

Any plaintiff’s attorney aware of this decision will make sure that a lawsuit against a local government alleges willful and wanton misconduct against all possible actors in the alleged incident. An essential takeaway is that municipalities should review their liability insurance policies and ensure that liability coverage and legal defense costs are covered for allegations of willful and wanton misconduct against the unit of government, as well as its employees. A policy gap or exclusion may otherwise require the local government to indemnify and pay for the defense of a lawsuit against its employees.

Another consideration is that much of the underlying breakdown that occurred with the emergency response in Coleman was attributable to the call fracturing between the 911 operator who relayed the call to another person in the dispatch center. Seemingly had the same person who took the call also dispatched the emergency personnel, the first responders would have forced entry into the house because they would have known the woman reported trouble breathing.