When the Government is to Blame – the Basics of Sovereign Tort Immunity in Illinois

A motorist is injured in a collision at a traffic light that has been out of order for months, despite repeated citizen complaints. A jury member slips and falls on an improperly repaired courthouse step. Many people are surprised to learn that these individuals cannot simply sue the state, county or local government as they would any private individual.

The historical so-called “sovereign immunity” of the state, federal and local governments from liability for unintentional as well as intentional torts is derived from the English common law – nobody was allowed to sue the king. It survived despite the demise of absolute monarchy out of concerns that claims by injured persons would bankrupt the public coffers.

The 1970 Illinois state constitution entirely abolished the doctrine of sovereign immunity. However, the General Assembly retained authority to create exceptions, and it has done so principally through two major laws:

• The Court of Claims Act, which created a special court with exclusive jurisdiction over tort actions against the state, its agencies and its employees engaged in the performance of their official duties. In contrast to a suit against a private party, an injured party must serve notice of his or her claim on the Illinois Attorney General and the Clerk of the Court of Claims within one year.
• Compliance with this requirement is crucial: failure to provide the proper notice in a timely fashion bars the plaintiff from ever filing suit. Most significantly, the Act generally limits the amount of damages to $100,000. False imprisonment awards are even more limited, with the maximum being $35,000. Attorneys’ fees of claimants generally are also capped at 20% of the amount recovered.     
• The Local Governmental and Governmental Employees Tort Immunity Act. In general, this Act retains absolute immunity for acts that relate to the exercise of discretionary authority or policy decisions, as opposed to the performance of “ministerial” acts. Where the line between “discretionary” and “ministerial” falls has been the subject of much litigation.

The rules governing suits against the State of Illinois or a local or county or their respective agencies or employees are complex. If you believe you’ve been injured by the act or neglect of a government official, an experienced Illinois personal injury lawyer can advise you concerning your rights and obligations.

Basic Elements of an Illinois Personal Injury Claim

Under Illinois law, a person who has suffered personal injuries due to another’s negligence may be able to recover damages. In addition to the injury itself, however, the plaintiff generally must prove several additional things.

Duty of Care

First, plaintiff must show that the defendant owed him a duty of care. In Illinois, the basic standard of care is that of a hypothetical “ordinarily careful person" or "reasonably prudent" person of average intelligence, knowledge, judgment and skill. If the court finds that an “ordinarily careful” or “reasonably prudent” person would have acted (or refrained from acting) in order to prevent a foreseeable harm to the plaintiff, the defendant had a duty to act in a similar manner.

Breach of Duty
Once the plaintiff establishes the element of duty of care, he must prove that the defendant failed to carry out that duty. The most common standard is that of the “reasonable man” (or the gender-neutral “reasonable person”. The Illinois courts have explained that a breach of duty occurs when there is a failure to do something which a person guided by ordinary considerations and knowledge would be expected to do, or refrain from doing. Factors to be considered include the foreseeability of injury, the seriousness of the possible harm and the financial or practical burden the defendant would have incurred by taking precautions.

Causation
The third element of a negligence claim is a direct (or “proximate”) “cause and effect” relationship between the defendant’s negligence and the plaintiff’s injury. Illinois courts use two tests. The first is the so-called “but for” test, under which the defendant's negligent conduct is the cause in fact of the plaintiff's injury if it injury would not have occurred “but for” the defendant's negligence.

When personal injuries result from a chain of independent events the “but for” case may be too strict, and may allow a negligent person to escape liability because it cannot be said that the injury would not have occurred without his misconduct. In such cases, some Illinois courts have instead adopted a “substantial factor” test. Under this test, the defendant's conduct is considered a cause of the plaintiff's injury if it was a substantial factor (or, in some cases, a "material element”) in causing the injury.

The skilled Chicago personal injury attorneys at Nilson, Stookal, Gleason & Caputo, Ltd. have experience handling all types of personal injury matters in Illinois. Our Attorneys are Richard P. Nilson, Marc B. Stookal, Steven M. Gleason.