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2001 Illinois Municipal Tort Liability

January 1, 2001

Chapter 1

 

GENERAL PRINCIPLES OF
MUNICIPAL LIABILITY

§ 1.01

 

Historical Background of the Local Governmental Tort Immunity Act.

§ 1.02

 

Does the Act Stand in Derogation of the Common Law?

§ 1.03

 

The Act Does Not Create Duties.

§ 1.04

 

Purchase of Insurance No Longer Waives Immunities.

§ 1.05

 

Waiver of the Act's Protection.

§ 1.06

 

Local Public Entities and Public Employees to Which the Act Applies.

§ 1.07

 

Public Employees/Apparent Agency Loophole.

[a]   Historical Background.
[b]   Dual Standard of Wilful and Wanton Conduct Under the Common Law.
[c]   Wilful and Wanton Conduct Versus Gross Negligence.
[d]   Wilful and Wanton Conduct Under the Local Governmental Tort Immunity Act.

§ 1. 12

 

Comparative Negligence.

§ 1. 13

 

Statute of Limitations and Notice.

[a]   Historical Background.
[b]   Statutory Notice Provisions.

§ 1. 14

 

Contribution Actions Against Municipalities.

§ 1. 15

 

The Impact of Kotecki on Third-Party Practice.

[a]   Historical Background.
[b]   Municipality's Limited Liability Under the Pension Code.

§ 1. 16

 

Joint and Several Liability and the Loophole Facing Municipalities Under § 2-1117.

§ 1. 17

 

Does a Given Immunity Provision Provide Absolute Protection or Only a Defense to Claims of Negligence

§ 1.18

 

The Conundrum of Competing Immunity Provisions

§ 1. 19

 

Punitive Damages.

§ 1.20

 

Do Internal Departmental Rules and Regulations Trigger Any Duty for a Local Public Entity?

§ 1.21

 

Municipal Liability for Defamation and Misrepresentation.

[a]   Historical Background.
[b]   Privileged Communications.
[c]   Immunity Against Defamation.
[d]   Statements of Opinion Are Not Actionable.
[e]   Innocent Construction Rule.

§ 1.22

 

Venue Considerations.

§ 1.23

 

Property of a Municipal Corporation Is Not Subject to Execution.

§ 1. 24

 

Should State and Federal Claims Against a Municipality Be Joined in an Original Pleading?

§ 1.25

 

A Municipality's Duty to Indemnify Under § 9-102 of the Act.

§ 1.26

 

Is There an Exception to the Act for "Ultrahazardous," "Inherently" or "Intrinsically" Dangerous Activities?

Chapter 2

 

THE PUBLIC DUTY RULE AND THE SPECIAL DUTY DOCTRINE

§ 2.01

 

General Duty Principles. § 2.02 Public Duty Rule. § 2.03 Interplay of Duty Concepts and Immunities Under the Act.

[a]   Historical Background.
[b]   Assumption of a Duty Through Voluntary Undertaking Does Not Abrogate Immunities.

§ 2.04

 

Special Duty Doctrine.

[a]   Historical Background.
[b]   Unique Awareness of a Particular Danger to the Plaintiff.
[c]   Municipality's Control at the Time of Plaintiffs Injury.
[d]   Affirmative or Wilful Act Requirement.

§ 2.05

 

Exceptions to the Public Duty Rule and the Special Duty Doctrine.

[a]   Increased Level of Service.
[b]   Police Pursuits.
[c]   Business Invitees.
[d]   Negligent Hiring.
[e]   Orders of Protection.

§ 2.06

 

Constitutional Arguments Against the Application of the Special Duty Doctrine.

[a]   Historical Background of the Constitutional Challenge to the Special Duty Rule.
[b]   Statutory Construction Argument Against Special Duty Rule.
[c]   Judicially Created Common-Law Rules Cannot Constitutionally Be Used To Override Statutory Immunities.
[d]   Article XIII § 4 of the Illinois Constitution Bars the Use of Any Common-Law Rule to Override Any Statutory Immunity.

Chapter 3

 

IMMUNITY FOR DISCRETIONARY ACTIVITIES

§ 3.01

 

Article II, Local Governmental Tort Immunity Act.

§ 3.02

 

Immunity for Determinations of Policy and the Exercise of Discretion.

[a]   Section 2-201: Absolute Immunity or Protection Only Against Negligence Claims.
[b]   Discretionary Versus Ministerial Acts.
[c]   Corrupt or Malicious Motives Exception.

§ 3.03

 

Immunity for the Adoption of or the Failure to Adopt or Enforce Any Law.

[a]   An Absolute Immunity.
[b]   No Malicious Motives Exception.

§ 3.04

 

Immunity for the Issuance, Denial, Suspension,,or Revocation of Any Permit, License, or Certificate.

[a]   Sections 2-104 and 2-206: Absolute Immunity or Protection Only Against Negligence Claims.
[b]   Ministerial Acts Exception.

§ 3.05

 

Immunity for Failure to Make an Inspection or a Negligent Inspection of Property.

§ 3.06

 

Immunity for Institution or Prosecution of Judicial or Administrative Proceedings.

§ 3.07

 

Immunity for Claims Involving the Execution or Enforcement of the Law.

§ 3.08

 

Immunity for Actions Taken Pursuant to an Enactment Subsequently Held Unconstitutional, Invalid, or Inapplicable

[a]   Limitations on § 2-203.
[b]   Wilful and Wanton Exception.

§ 3.09

 

There Exists No General Exception for Proprietary or Ministerial Acts Applicable to All Discretionary Immunities.

Chapter 4

 

DEFENSES AND IMMUNITIES TO CLAIMS INVOLVING MUNICIPAL PROPERTY

§ 4.01

 

A Municipality's Duty of Care Towards Its Property.

[a]   Historical Background.
[b]   Contributory Fault and § 3-102(a).

§ 4.02

 

Intended and Permitted Users of Municipal Property.

[a]   Intended and Pemiitted Users of Sidewalks and Parkways.
[b]   Pedestrians as Intended and Permitted Users of a Street.
[c]   Motor Vehicles and Permitted Uses of a Street.
[d]   Is There Any Immunity for Recreational Use of Sidewalks, Parkways, or streets?
[e]   Pedestrians as Intended and Permitted Users of an Alley.

§ 4.03

 

Constructive Notice.

§ 4.04

 

Accidents on Municipal Sidewalks and Parkways.

[a]   Nature of Defect Necessary to Trigger Liability - Natural Conditions.
[b]   Unnatural Conditions.
[c]   Non-Delegable Duty to Maintain Sidewalks.

§ 4.05

 

Accidents on Municipal Streets.

[a]   Duty to Maintain.
[b]   State-Owned or County-Owned Roadways and Sidewalks Within a Municipality.
[c]   Duty to Clear Foliage at Intersections.
[d]   Street Lighting.

§ 4.06

 

Traffic Signs, Signals, Lights, Barriers, and Regulating Devices.

[a]   Historical Background.
[b]   Immunity for Failure to Provide.
[c]   No Immunity for Failure to Maintain.
[d]   Improper Sign Placement.
[e]   Proximate-Cause Defense When the Condition of the Roadway or the Absence of a Traffic Sign or Signal is Alleged to Have Contributed to a Vehicular Accident.

§ 4.07

 

No Duty to Improve Public Property.

[a]   No Duty to Provide Sidewalks.
[b]   No Duty to Provide Crosswalks.
[c]   No Duty to Widen or Redesign a Road.
[d]   No Duty to Upgrade Traffic-Control Signals or Signs.
[e]   No Duty to Erect Median Barriers.
[g]   No Duty to Remove "Attractive Nuisances."
[f]   No Duty to Fence Public Property Adjacent to Railroad Rightsof-Way, Adjacent to Rivers and Creeks, or Around Playgrounds.

§ 4.08

 

Adoption of Plan or Design for Improvement to Public Property.

§ 4.09

 

Railroad Crossings.

§ 4.10

 

Property Intended or Permitted for Recreational Use.

[a]   Exception for Wilful and Wanton Misconduct.
[b]   Recreational Use of Land and Water Areas Act.
[c]   Access Roads and Trails.
[d]   Hazardous, Recreational Activities.
  1. Narrow Interpretation of § 3-109.
  2. Contact Sports Standard of Care.
[e]   Waterways, Swimming Pools, and Open Bodies of Water.
[g]   Failure to Supervise Activities On or the Use of Public Property.
[f]   Snowmobile Registration and Safety Act.

§ 4.11

 

Criminal Assaults by a Third Party.

§ 4.12

 

Statute of Repose Defense.

§ 4.13

 

Premises Liability Act.

§ 4.14

 

Open and Obvious Hazards - Distraction Exception.

[a]   Historical Background.
[b]   Open and Obvious Hazards - Deliberate Encounter Exception.

§ 4.15

 

Kimbrough Defense.

§ 4.16

 

Injuries on Municipal Property Related to Weather Conditions.

[a]   Natural Accumulations.
[b]   Unnatural Accumulations.
[c]   Plaintiff's Burden of Proof.
[d]   Ice Formation After Snow Removal.
[e]   Ruts/Tiremarks in Snow and Ice.
[f]   Spreading of Salt.
[g]   Tracking Snow, Ice, or Water Inside.
[h]   Snow Piles That Obstruct Vision.
[i]   Duty to Wam of Dangerous Conditions Arising from the Weather.

Chapter 5

 

MUNICIPAL LIABILITY FOR POLICE/FIRE/EMS/MEDICAL SERVICES

§ 5.01

 

Police/Fire/EMS/Medical Liability.

§ 5.02

 

Municipal Liability for Claims Involving Assault, Battery, False Arrest, False Imprisonment, Malicious Prosecution, or Intentional Infliction of Emotional Distress.

[a]   Assault.
[b]   Battery.
[c]   Battery.
[d]   Malicious Prosecution.
  1. Elements of Cause of Action.
  2. Probable-Cause Defense.
[e]   Intentional Infliction of Emotional Distress.

§ 5.03

 

Immunities for Police Activities.

[a]   Immunities Under the Local Governmental Tort Immunity Act.
[b]   Other Statutory and Conimon-Law Immunities Available to Police Officers.
[c]   Police Protection Services § 4-102.
[d]   Is the 911 System a Police or Fire-Protection Service?
[e]   The Illinois Motor Vehicle Code Does Not Trump the Immunity for Executing or Enforcing the Law. Execution or Enforcement of the Law.
[f]   Interplay of Various Police Immunities.

5.04

 

Police Pursuits.

[a]   Police Pursuits - Proximate-Cause Defense.
[b]   Police Pursuits - Proximate-Cause Defense.
[c]   Discontinuance of a Pursuit.
[d]   Police Pursuits/Traffic Violations.
[e]   Police Pursuits - Public Official Immunity.

§ 5.05

 

Claims Arising Out of Jails or Municipal Lockups.

[a]   Jail/Lockup Suicides.
[b]   Federal Civil Rights Cases Involving Jail Suicides.
[c]   Proximate-Cause Defense in Suicide Cases.
[d]   Section 4-103 Immunity Prevails Over Special Duty Doctrine in Jail Suicide Setting.
[e]   Fellow Inmate Assault.
[f]   Failure to Provide Medical Treatment.

§ 5.06

 

Claims Against Counties for the Actions of the Sheriff, the State's Attorney, Deputies, and Assistants.

§ 5.07

 

Off-Duty Officers.

§ 5.08

 

Immunities for Fire-Protection Services.

§ 5.09

 

Municipal Liability for Emergency Medical Services.

[a]   EMS Systems Act.
[b]   Common Liability Problems.
[c]   Immunities Available to EMS Providers.
[d]   Can Paramedics Raise Immunities Other Than the EMS Act.?
[e]   Healing Art Malpractice Affidavit Requirement.
[f]   Repeal and Re-enactment of the EMS Systems Act.
[g]   Lost Chance Doctrine

§ 5.10

 

Immunities Relating to Physical or Mental Examinations and/or for Misdiagnosing or Failing to Diagnose a Physical or Mental Illness or Addiction.

Chapter 6

 

MUNICIPAL LIABILITY FOR CIVIL RIGHTS

VIOLATIONS

§ 6.01

 

Historical Background.

§ 6.02

 

Parties Permitted to Sue Under § 1983.

[a]   Who Is a "Person" Under § 1983?
[b]   Constitutional Rights Are Personal and Cannot Be Vicariously Asserted.

§ 6.03

 

Parties Who Can Be Sued Under § 1983.

 

 

 

§ 6.04

 

Distinction Between Individual-Capacity and Official-Capacity Suits.

§ 6.05

 

Parties Who Cannot Be Sued Under § 1983.

§ 6.06

 

Elements of a § 1983 Cause of Action.

[a]   Acts Must Be Committed Under Color of Law.
  1. Off-Duty Employees.
  2. Circumstances in Which d Private Citizen Can Be Subjected to §1983 Liability.
  3. Distinction Between Acting Under "Color of Law" and Acting in the Course and Scope of Employment.
[b]   Acts Must Violate a Right, Privilege, or Immunity Secured by the United States Constitution or a Federal Law.
  1. Scope of Constitutional Protection,
  2. Violation of State Law or State Constitution Will Not Trigger § 1983 Liability.
  3. Federal Statute Must Create "Enforceable Rights, Privileges or Immunities" for a Violation to Be Actionable.
    • Section 1983 Litigation Involving Special Education.
    • Recovery of Attorney Fees in Special-Education Litigation.
  4. No Constitutional Duty to Protect Citizens from Private Violence or Otherwise to Take Action. fil State-Created-Dangers Exception.
    • [ii] Restraint-of-Personal-Liberty Exception.
  5. Section 1983 Pxotects Core Constitutional Rights, Not Evidentiary Rules Designed to Protect Those Rights.
    • Miranda Violation Will Not Trigger a § 1983 Claim.
    • Suggestive Line-Ups and Show-Ups Do Not Trigger a § 1983 Action.
[c]   Causal Connection Required Between the Defendant's Acts and the Injury Resulting from a Constitutional Vioiation - General Principles.
  1. Personal Responsibility/Supervisor Liability.
  2. Causation in Fact.
  3. Damage Causation - Mt. Healthy Rule.
  4. Superseding Causes.
  5. Section 1983 Liability and the Eggshell Plaintiff.
[d]   Municipal Liability Requires a Constitutional Violation Plus Evidence of a Policy or Custom.
  1. Which Employees Create Municipal Policy?
  2. Custom or Practice of a Municipality.
  3. There Is No Heightened Pleading Requirement for Claims Involving a Municipal Policy or Custom.
  4. Municipal Liability for Failure to Train.
  5. Municipal Liability for Improper Hiring or Screening Practices.
[e]   State of Mind Required to Establish a Constitutional Violation for § 1983 Liability.
[f]   Damages.
  1. Principles of Joint and Several Liability in a § 1983 Claim.
  2. Compensatory Damages - General Principles.
  3. Compensatory Damages for Employment Claims.
  4. Compensatory Damages for Wrongful-Death Claims.
    • Section 1983 Versus a State's Wrongful-Death Act.
    • Standing to Bring a § 1983 Wrongful-Death Claim.
  5. No Recovery for Loss of Consortium.
  6. Punitive Damages.
  7. Punitive Awards in Particular Contexts.
    • Employment.
    • Police Misconduct.
    • Prisoners' Rights.
  8. Nominal Damages.
  9. Injunctive and Declaratory Relief
    • Injunctions.
    • Declaratory Judgments.

§ 6.07

 

Defenses to a § 1983 Cause of Action

[a]   Qualified Immunity - General Principles.
  1. Heightened Pleading Requirement.
  2. Elements of the Qualified Immunity Defense.
  3. Did the Defendant's Conduct Violate the Constitution?
  4. When Does a Constitutional Right Become Clearly Established?
  5. What Law Must Be Clearly Established?
  6. Burden of Pleading/Waiver.
  7. Interlocutory Appeals.
  8. Do the Concepts of Probable Cause and Qualified Immunity Merge in Claims Brought Under the Fourth Amendment?
  9. Are Private Individuals Entitled To Qualified Immunity?
  10. Extraordinary Circumstances - Advice of Counsel.
[b]   Absolute Immunity.
  1. The "Functional Approach."
  2. The Scope of the Functional Approach to Absolute Immunity.
  3. Absolute Immunity for Legislators.
  4. Absolute Immunity for Judges.
  5. Absolute Immunity for Prosecutors.
  6. Absolute Immunity for Testimony.
  7. Appealability of Absolute Immunity Claims.
  8. Absolute Immunity for Injunctive Relief.
[c]   Mitigation of Damages.
[d]   Statute of Limitations.
[e]   Res Judicata/Collateral Estoppel.
[f]   Eleventh Amendment Immunity.
[g]   Hold-Hannless Agreements.
  1. Enforceability of Hold-Harmless Agreements.
  2. Hold-Harmless Agreements Violate Illinois Law.
[h]   Section 1983 Cannot Be Used to Review or Invalidate State Court Judgments or Convictions.
  1. Civil Judgments - the RookerIFeldman Doctrine.
  2. Criminal Convictions - the Heck Doctrine.
    • Preemption and Preclusion of § 1983 Claims When Other Federal and State Statutory Remedies Provide Alternative Avenues of Relief.

6.08

 

Section 1983 Claims Involving the Due Process Clause.

[a]   Property Interests Triggering the Due Process Clause.
[b]   Liberty Interests Protected Under the Due Process Clause.
[c]   Timing of the Due Process Hearing.
[d]   Nature of the Due Process Hearing.
[e]   Parratt Defense to Due Process Claims.
[f]   State of Mind Needed to Violate Substantive Due Process.
[g]   Land Use/Zoning Claims.
[h]   Section 1983 High-Speed Pursuit/Police-Chase Claims.
[i]   The Role of Substantive Due Process for Claims Involving Law Enforcement Officials.

§ 6.09

 

Section 1983 Claims Involving Violations of the Equal Protection Clause.

[a]   A Viable Equal-Protection Claim Under § 1983.
[b]   Class of One - Irrational or Arbitrary Enactment or Enforcement of Laws.

§ 6.10

 

Section 1983 Claims Involving the First Amendment.

[a]   Political Firings/Demotions/Harassment.
[b]   Freedom of Religion/Religious Freedom Restoration Act.

6.11

 

Section 1983 Claims Involving Arrests, Searches, or Seizures.

[a]   At What Point Does a Fourth Amendment Seizure Occur?
[b]   Required Analysis of the Type of Seizure Involved.
[c]   Probable Cause to Arrest.
  1. Warrantless Arrests.
  2. Arrests Made Pursuant to a Warrant.
[d]   Liability for Extended Detentions Following a Lawful Arrest.
  1. Detention Before Probable-Cause Hearing Versus Detention After Probable-Cause Hearing.
  2. An Arrestee Has No Constitutional Right Not To Be "Booked."
[e]   Duty to Provide Medical Care Following an Arrest.
[f]   Duty to Investigate Claims of Innocence.
[g]   Claims of Conspiracy or Cover-Up Following An Unlawful Seizure.
[h]   Claims of Malicious Prosecution.
  1. Searches Permitted Under the Fourth Amendment - General Principles.
  2. Search Incident to an Arrest.
  3. Overly Intrusive Searches Incident to an Arrest.
  4. Plain View/Abandoned Property.
  5. Consent.
  6. Stop and Frisk/Plain Feel or Touch.
  7. Exigent Circumstances/Emergency Doctrine.
  8. Inventory Searches.
  9. Mobile Motor Vehicle Exception.
  10. Administrative Searches.
  11. Fruit of the Poisonous Tree.
  12. Qualified Immunity Defense for Claims Involving Illegal Searches.
  13. Vehicle Checkpoint Search.
  14. School Searches.
    • Permissible Searches of Public-School Students.
    • Suspicionless School Drug Testing.
  15. Governmental Workplace Searches.
  16. Section 1983 Challenges to a Warrant.
  17. Strip Searches.
  18. Claims Against 911 Dispatchers.
[i]   Knock and Announce Rule.

6.12

 

Section 1983 Claims Involving Excessive Use of Force.

[a]   Excessive Use of Force - General Principles.
  1. Pre-Seizure Conduct Not Examined.
  2. Motives for the Use of Force Are Generally Irrelevant.
  3. Use of Force Must Be Judged from the Law-Enforcement Official's Perspective.
  4. Violations of Departmental Policy or State Law. Do Not Trigger § 1983 Liability.
  5. "Severe Injury" Not Required to State a Claim for Excessive Force.
  6. Existence of State Tort Remedies Irrelevant to Use of Force Claim.
  7. Duty to Prevent Fellow Officer's Use of Excessive Force.
  8. Different Constitutional Standards Applicable to Use of Force Claims.
  9. Availability of Qualified Immunity Defense to Use of Force Claims.
  10. Res lpsa Loquitur - Rejected In Excessive Force Claims.
[a]   Issues Involving Use of Deadly Force - General Principles.
  1. No Duty to Use Non-Deadly Alternatives First.
  2. An Officer Can Rely on Appearances.
  3. Evaluation of Whether Deadly Force Is Necessary.
    • Evaluation Must Be Continuous.
    • Number of Shots Fired Not Necessarily Determinative.
  4. What Constitutes Deadly Force?
    • Road Blocks/Ramming of Pursued Vehicles.
    • Police Dogs.

6.13

 

Section 1983 Claims Involving Prisoner Litigation.

[a]   Historical Background.
[b]   Pre-Trial Detainees.
[c]   Fellow Inmate Assaults.
[d]   Use of Force Against Prisoners.
[e]   Jail Suicides.
[f]   Duty to Provide Medical Care.
[g]   Right of Access to the Courts.
[h]   Claims Involving Religious Freedoms.
  1. Visitation.
[i]   Prisoners' Due Process Claims.
[j]   Prison Searches.
[k]   Prison Conditions.
  1. Eighth Amendment Prohibition Against Cruel and Unusual Punishment.
  2. Prison Litigation Reform Act.
[l]   Prisons and the Establishment Clause.
[m]   Prisoners' Claims Under the First Amendment.

§ 6.14

 

Claims Involving Penalties Imposed Upon the Exercise of the Fifth Amendment Privilege Against Self-Incrimination.

§ 6.15

 

Attorney's Fees.

[a]   When Is the Plaintiff Considered a Prevailing Party Entitled to Fees?
[b]   How the Fee Amount Is Determined.
[c]   Expert's Fees.
[d]   Offers of Judgment and Attorney's Fees in § 1983 Litigation.
[e]   "Costs" Include Attomey's Fees and Offers of Judgment.
[f]   Are Attomey's Fee Awards Under § 1988 Covered by Insurance?

§ 6.16

 

Conflicts of Interest.

[a]   Conflicts of Interest Traditionally Recognized.
[b]   Conflicts of Interest Sui Generis to § 1983 Claims.
[c]   Does the Seibert Decision Have Application Outside of § 1983 Claims?

§ 6.17

 

Evidence of Other Bad Acts.

§ 6.18

 

Psychotherapist/Patient Privilege

[a]   Waiver of the Psychotherapist/Patient Privilege.
[b]   Deliberative Process Privilege.

§ 6.19

 

Does a Defendant Have the Right to "Contribution" When Sued Under § 1983?

Chapter 7

 

COMMON-LAW IMMUNITIES FOR PUBLIC OFFICIALS

§ 7.01

 

Common-Law Doctrine of Public Official Immunity.

§ 7.02

 

Elements of Public Official Immunity.

[a]   Who Are Public Officials?
[b]   Discretionary Versus Ministerial Acts.
[c]   Good Faith Requirement: Public Official Immunity Is a "Qualified Immunity."
[d]   Actions That Are "Governmental In Nature."
[e]   Burden of Proof.

§ 7.03

 

Public Official Immunity Doctrine Versus the Local Governmental Tort Immunity Act.

§ 7.04

 

Public Official Immunity Versus Qualified Immunities Available Under 42 U.S.C. § 1983.

§ 7.05

 

Respondent Superior Under the Public Official Immunity Doctrine.

§ 7.06

 

Public Official Immunity Precludes Contribution Actions Against an Official Whenever a Direct Action Would Be Barred By the Doctrine.

§ 7.07

 

Immunity Available to Parents and Those Standing In Loco Parentis Under the Common Law.

§ 7.08

 

Extension of the In Loco Parentis Immunity to State Agencies and Foster Parents.

§ 7.09

 

Exceptions to ParentaYIn Loco Parentis Immunity.

Chapter 8

 

SCHOOL DISTRICT LIABILITY: IMMUNITY UNDER THE

ILLINOIS SCHOOL CODE

§ 8.01

 

Historical Background.

§ 8.02

 

Nature of the In Loco Parentis Immunity.

§ 8.03

 

Scope of the In Loco Parentis Immunity.

[a]   Who Are Educators Under the Illinois School Code?
[b]   What Are Educational Activities?
[c]   What Is Wilful And Wanton Misconduct?
[d]   Corporal Punishment.

§ 8.04

 

Exception to School Code Immunity.

§ 8.05

 

School Code Immunity Does Not Provide Exclusive Protection.

§ 8.06

 

Respondent Superior: School District Is Generally Not Liable If School District Employee Is Not Liable.

Chapter 9

 

MUNICIPAL LIABILITY FOR CONSTRUCTION-RELATED CLAIMS

§ 9.01

 

Repeal of the Structural Work Act.

§ 9.02

 

Historical Background of the Structural Work Act.

§ 9.03

 

Elements of a Structural Work Act Claim.

§ 9.04

 

The Plaintiff's Negligence.

§ 9.05

 

Sole Proximate Cause.

§ 9.06

 

Entities "In Charge of' the Work.

[a]   Material Suppliers.
[b]   Architects/Engineers.
[c]   General Contractors.
[d]   Residential Homeowners.

§ 9.07

 

"Wilful Violation" of the Act.

§ 9.08

 

Proof of a Violation of the Act.

§ 9.09

 

Protected Construction Activities.

§ 9.10

 

Structures Covered Under the Act.

§ 9.11

 

Scaffolds or Support Devices and Proximate Cause.

§ 9.12

 

"Support Devices" Under the Act.

§ 9.13

 

Sole Proprietors Under the Act.

§ 9.14

 

Indemnity and Contribution Actions.

[a]   Historical Background.
[b]   Contribution and Statutes of Limitations.

§ 9.15

 

The Future of Construction Litigation Following the Abolition of the Structural Work Act.

[a]   Exceptions to the Independent-Contractor Defense
[b]   Section 414 of the Restatement (Second) of Torts.
[c]   Could Have Known Versus Should Have Known.
[d]   Comparative-Fault Defense.

§ 9.16

 

Contractual Provisions Limiting Municipal Tort Liability.

[a]   Indemnification Agreements.
[b]   Agreements to Obtain Insurance.
[c]   Waiver of the Duty to Provide Insurance.
[d]   Waiver of Subrogation Clause.

§ 9.17

 

Immunity for Construction-Related Injuries.

§ 9.18

 

Drafting a Construction Contract.

§ 9.19

 

Economic Loss Doctrine.

[a]   The Moorman Doctrine.
[b]   Third-Party Beneficiary Actions for Breach of Contract to Recover Economic Losses.

Chapter 10

 

STATE LAWSUIT IMMUNITIES

§ 10.01

 

Historical Background.

§ 10.02

 

State Lawsuit Immunity Act - General Principles.

§ 10.03

 

Insurance/Indemnification/Payment of Salary.

§ 10.04

 

Exceptions Permitting Suits Filed in the Circuit Court.

[a]   Consent.
[b]   Suit Alleging a Breach of Duty That Arises Independent of State Employment.
  1. Medical Malpractice.
  2. Automobile Negligence.
[c]   When a State Official Acts Beyond Delegated or Proper Authority or Abuses Discretion.
[d]   Incidental Defendant.

§ 10.05

 

State Lawsuit Immunity Cannot Be Waived.

§ 10.06

 

The Eleventh Amendment and Sovereign Immunity - Historical Background.

§ 10.07

 

The Eleventh Amendment and Sovereign Immunity - General Principles.

§ 10.08

 

Exceptions to State Lawsuit Immunity Under the Eleventh Amendment.

§ 10.09

 

Scope of Sovereign Immunity for State Officials Under the Eleventh Amendment.

§ 10.10

 

Waiver.

§ 10.11

 

Eleventh Amendment - Miscellaneous Issues.

§ 10. 12

 

The Court of Claims Act.

[a]   Notice Requirement.
[b]   Statute of Limitations.
[c]   Exhaustion of Other Remedies.
[d]   Limitations on Amount of Recovery.
  1. Set-Off Provisions.
  2. Contingent Fees.
[e]   Constitutional Attacks.

Appendix A. Table of Common Illinois Immunity Statutes

Appendix B. Local Governmental and Governmental Employees Tort Immunity Act

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