Legal Memorandum: Claims of Immunity for Failure to Examine

Issue: Does section 6-105 of the Illinois Tort Immunity Act immunize a park district from liability for its failure to call for medical assistance during an individual’s seizure?

Claims of immunity for failure to examine may be reviewed under 745 ILCS 10/6-105.  The § 6-105 defense relies upon a failure to make a “mental or physical examination” under the Act.

See Mich. Ave. Nat’l Bank v. County of Cook, 306 Ill. App. 3d 392, 714 N.E.2d 1010, 239 Ill. Dec. 713 (1st Dist. 1999), aff’d, 2000 Ill. LEXIS 825 (Ill. June 15, 2000), which involved a hospital’s failure to correctly diagnose cancer in one of its patients.  This case deals with treatment not diagnosis. This distinction was made clear in Alvarez v. Riesche, No. 98 C 5552 (N.D. Ill. July 12, 1999), in which the court ruled that "Section 6-105 speaks to liability flowing from a failure to examine, not to a failure to react to [patent injuries].  Illinois courts have focused on this distinction and found that § 6-105 does not immunize defendants against claims based on obvious [serious] conditions."  Id. (emphasis added).  See also Singleton v. City of Chicago, No. 99 C 0059 (N.D. Ill. Feb. 25, 2000) (willful and wanton conduct not shielded under 745 Ill. Comp. Stat. 10/4-105).

In Grandalski v. Lyons Township High Sch., 305 Ill. App. 3d 1, 711 N.E.2d 372, 238 Ill. Dec. 269 (1st Dist. 1999), a teacher and school nurse allegedly failed to immobilize a student and call an ambulance following a gymnastics-related fall at the school.  In Grandalski, the First District held that the teacher and nurse were protected by […]