Legal Memorandum: Special Duty Doctrine in IL

Issue: WHETHER A PARK DISTRICT OWES A SPECIAL DUTY TOWARDS AN INDIVIDUAL UNDER ILLINOIS LAW.

The legal elements of a “special duty” under which the government owes a higher duty to an individual than to the public at large include:

1.                  Unique awareness by the government of a particular danger to the plaintiff;

2.                  A specific act or omission by the government;

3.                  The specific act was affirmative or willful in character; and

4.                  The plaintiff’s injury occurred while under the government’s immediate and direct control.

See, e.g., Downey v. Wood Dale Park Dist., 286 Ill. App. 3d 194, 675 N.E.2d 973 (2d Dist. 1997);  Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 565 N.E.2d 654 (1990), overruled in part on other grounds, McCuen v. Peoria Park Dist., 163 Ill. 2d 125, 643 N.E.2d 78 (1994).  The continued validity of the special duty doctrine is less easy to set forth, but it remains a legitimate cause of action when the elements are met.

If a Park District asserts that the special duty doctrine is not available because it was abolished by the Illinois Supreme Court, its position does not encompass the finer subtleties of the current state of the law.  Under the Tort Immunity Act, government immunity is far from complete.  See, e.g., Am. Nat’l Bank & Trust Co. v. City of Chicago, 192 Ill. 2d 274, 735 N.E.2d 551 (2000) (the Act was inadequate to immunize a governmental entity that established but failed to use […]