Legal Memorandum: Immunity from Liability for Failure to Supervise

Issue: IN ILLINOIS, WHETHER A PARK DISTRICT ENJOYS ABSOLUTE STATUTORY IMMUNITY FOR EMPLOYEE SUPERVISION UNDER 3-108 OF THE TORT IMMUNITY ACT.

The state Tort Immunity Act as amended and interpreted does not provide an all-encompassing shield to municipal liability.  A Park District may attempt to apply the terms of § 3-108 without an eye to the inconvenient judicial and legislative developments that later explicated the legislature’s true intentions.  Courts have a duty to ascertain and effectuate legislative intent when construing a statute.  See, e.g., Village of South Elgin v. City of Elgin, 203 Ill. App. 3d 364, 561 N.E.2d 295 (2d Dist. 1990).  Reference to subsequent legislative history and, more significantly, subsequent legislation, is a valid exercise when it clarifies prior enactments.  See, e.g., Wright v. Desate, 292 Ill. App. 3d 952, 686 N.E.2d 1199 (3^rd Dist. 1997) (courts have reference to legislative evidence of intent for ambiguous statutes); Montana Wilderness Ass’n. v. U.S. Forest Serv., 655 F.2d 951 (9th Cir. 1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982) (where provision was unclear, “subsequent legislative history . . . given the closeness of the issue, is decisive” and “great weight [is to be] given subsequent legislation.”); People v. Touhy, 31 Ill.2d 236, 201 N.E.2d 425 (1964) (legislative reports are valid aids to determine statutory intent).  Therefore, despite the state of the provision on July 18, 1997, the subsequent developments fill the logical gap in the Tort Immunity Act.

The original version of § 3-108 was ambiguous and did not delineate […]