The Illinois appellate court for the Fifth District recently held that a plaintiff’s personal injury law firm may proceed with its action against the City of Herrin arising out of the death of Chelsea Keene on August 9, 2003, as she walked along a public street in Herrin, Illinois. Keener v. City of Herrin, No. 5-06-0501, 2008 WL 4491390 (5th Dist. Oct 6, 2008). Chelsea’s mother, Jennifer, filed a five-count complaint against the City of Herrin alleging that Herrin was responsible for Chelsea’s death under theories of negligence and willful and wanton conduct.
Jennifer alleged that on the evening of August 8, 2003, through the morning hours of August 9, 2003, Chelsea, who was 18 years old, consumed alcoholic beverages to the point of intoxication. At approximately 3:30 a.m., officers for the Herrin police department arrested Chelsea for underage drinking.
Jennifer alleged that when Herrin police officers took Chelsea into custody, Chelsea was incoherent and legally intoxicated with a blood-alcohol level of 0.18. Nevertheless, at approximately 4:40 a.m., the Herrin police department released Chelsea from the police station unattended, without any assistance, and while she was still intoxicated. At approximately 5 a.m., a vehicle struck and killed Chelsea as she walked on a street in Herrin.
The trial court held that the defendant city was immune from suit pursuant to sections 4-102 and 4-107 of the Tort Immunity Act (745 ILCS 10/4-102, 4-107 (West 2006)), and dismissed the complaint accordingly. On appeal, the Fifth District held that the trial court correctly dismissed the counts alleging negligence, but erred in dismissing the counts that alleged willful and wanton conduct.
Section 4-102 of the Tort Immunity Act provides, in part, “Neither a local public entity nor a public employee is liable . . . if police protection service is provided, for failure to provide adequate police protection or service . . .” Section 4-107 provides that the public entity is not liable “for an injury caused by the failure to make an arrest or by releasing a person in custody.” Both sections provide for “absolute immunity.”
However, section 2-202 of the Tort Immunity Act limits absolute immunity under certain circumstances, including willful and wanton conduct. Specifically, section 2-202 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 conduct.”
In Keener, the appellate court held that Jennifer’s claim sufficiently alleged willful and wanton conduct on the part of the Herrin police officers in executing or enforcing the law to fall within section 2-202′s exception to absolute immunity. The court cited two analogous cases, Fatigato v. Village of Olympia Fields, 281 Ill. App. 3d 347 (1996) and Ozik v. Gramins, 345 Ill. App. 3d 502 (2003), in which the courts held that the government could be held liable pursuant to section 2-202 of the Tort Immunity Act for releasing a drunk driver who subsequently was injured in a car accident.
Therefore, the court held that the trial court erred in granting Herrin’s motion to dismiss the counts alleging that Chelesa’s death resulted from Herrin’s willful and wanton conduct. The court held that the City of Herrin is “not entitled to blanket immunity with respect to those counts, and we remand for a jury to determine the issues raised in those claims.”
