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When you hear on the news someone had a terrible motor vehicle accident due to a pothole in the road, drown on a Lake Michigan beach where there were no lifeguards, got hurt during a school activity or was the victim of excessive force at the hands of a police officer, you might think, “the municipality or school will pay for that injury.” Like many things in the law, it just isn’t that simple.

For a myriad of reasons, many of them financial, governmental entities like cities, villages and public schools have what is called “tort immunity.” This means they cannot be held liable for civil wrongs such as negligence in failing to, repair the roads or sidewalks, provide a lifeguard on the beach, require athletes to wear safety glasses or refrain from physically harming a prisoner. The parameters under which governments and their employees are protected are dictated by the Illinois Local Governmental and Governmental Employees Tort Immunity Act. Where the real gymnastics kick in is when the courts interpret this law.

Without boring you with too many details, the Act has certain exceptions. For instance, there is immunity for executing and enforcing the law, but if the conduct rises to the level of willful and wanton misconduct then the immunity is lost and the governmental entity can be liable. If a government employee is supervising an activity on public property they are likewise immune for their negligence but responsible for willful and wanton conduct. This issue was recently addressed by the Illinois Supreme Court in Barr v. Cunningham, 2017 IL 120751. Most other conduct whether it is deemed negligent or willful and wanton is protected by immunity. A city or county may be liable for failing to repair a pothole or a sidewalk defect but it is very fact specific. It depends on size, how it was created, evidence of the length of time it existed, and other factors relating to whether the governmental entity had or could have had notice of the condition.

Other issues affecting governmental tort immunity involve whether the entity or employee had a duty. The Act is not designed to create duties on the part of the governmental entities and its employees. However, cases interpreting the Act inevitably address the duties imposed on them and whether this gives rise to liability when they breach the duty to the detriment of a member of the public. Simply stated, all is not lost if an injury is caused by a governmental entity or employee.

As an experienced Plaintiff’s attorney, I am intimately familiar with the intricacies of the Tort Immunity Act and the strategies to pursue to secure a successful result for my clients when the government is a defendant. Your case may not be a slam dunk, but odds are we will stick the landing on the vault to recovery.

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