Hudson v. Ymca of Metropolitan Chicago LLC

• Decision Date: 13 November 2007
• Docket Number: No. 1-06-3550.,1-06-3550.
• Citation: 878 N.E.2d 821,377 Ill.App.3d 631
• Parties: Terry HUDSON, Plaintiff-Appellant, v. YMCA OF METROPOLITAN CHICAGO LLC, a Not-for-Profit Illinois Corporation, d/b/a Rich Port YMCA, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

878 N.E.2d 821

377 Ill.App.3d 631

Terry HUDSON, Plaintiff-Appellant, v.YMCA OF METROPOLITAN CHICAGO LLC, a Not-for-Profit Illinois Corporation, d/b/a Rich Port YMCA, Defendant-Appellee.

No. 1-06-3550.

Appellate Court of Illinois, First District, Second Division.

November 13, 2007.

Rehearing Denied December 12, 2007.

Ambrose & Cushing, P.C., of Chicago (Marilyn J. Martin, of counsel), for Appellant.

Kilgallon & Craig, of Chicago (Michael B. Kilgallon, of counsel), for Appellee.

Justice KARNEZISdelivered the opinion of the court:

This appeal arises from an order of the trial court granting partial summary judgment to defendantYMCA of Metropolitan Chicago, LLC., d/b/a Rich Port YMCA (the YMCA), in plaintiffTerry Hudson's personal injury action against the YMCA.On April 19, 2004, plaintiff was performing community service at the YMCA's Rich Port facility as part of his plea agreement for a criminal offense when scaffolding on which he was standing tipped over.He sued the YMCA for his resulting injuries, alleging negligence and wilful and wanton misconduct.The court granted partial summary judgment to the YMCA on plaintiff's negligence claim, finding the YMCA immune from tort liability under section 1(e) of the Probation Community Service Act(730 ILCS 115/1(e)(West 2006)).The court denied plaintiff's motion for reconsideration and made its order final and appealable on November 22, 2006.

Plaintiff timely appeals the court's order denying his motion for reconsideration, arguing the court erred in entering summary judgment for the YMCA on his negligence claim because the section 1(e) immunity (1) extends only to funds other than the YMCA's liability insurance coverage and (2) violates the equal protection clauses of the United States and Illinois Constitutions (U.S. Const., amend. XIV;Ill. Const. 1970, art. I, § 2).We have jurisdiction to consider the appeal pursuant to Supreme Court Rules 301(155 Ill.2d R. 301) and 303 (210 Ill.2d R. 303).We affirm.

Waiver of Immunity

Plaintiff first asserts the court erred in granting summary judgment to the YMCA on his negligence claim because, by acquiring tort liability insurance coverage, the YMCA waived its section 1(e) tort immunity to the extent of that coverage.This issue concerns matters of summary judgment and statutory construction, both of which we review de novo.Elsbury v. Stann & Associates,371 Ill.App.3d 181, 185, 308 Ill.Dec. 466, 861 N.E.2d 1031, 1035(2006).

Section 1(e) provides:

"Neither the State, any local government, probation department, public or community service program or site, nor any official, volunteer, or employee thereof acting in the course of their official duties shall be liable for any injury or loss a person might receive while performing public or community service as ordered either (1)by the court or (2) by any duly authorized station or probation adjustment, teen court, community mediation, or other administrative diversion program authorized by the Juvenile Court Act of 1987for a violation of a penal statute of this State or a local government ordinance (whether penal, civil, or quasi-criminal)or for a traffic offense, nor shall they be liable for any tortious acts of any person performing public or community service, except for wilful, wanton misconduct or gross negligence on the part of such governmental unit, probation department, or public or community service program or site or on the part of the official, volunteer, or employee."(Emphasis added.)730 ILCS 115/1(e)(West 2006).

It is uncontested that plaintiff suffered his injuries while performing community service at a YMCA community service site by court order for a criminal offense.Therefore, unless the YMCA engaged in wilful and wanton misconduct or was grossly negligent, the YMCA is not liable for any injury plaintiff sustained and the trial court properly granted summary judgment to the YMCA on plaintiff's negligence claim.SeePetty v. Crowell,306 Ill.App.3d 774, 239 Ill.Dec. 872, 715 N.E.2d 317(1999)(affirming dismissal of negligence action against municipality pursuant to section 5-5-7 of the Unified Code of Corrections(730 ILCS 5/5-5-7(West 1994)), a provision identical to section 1(e);court held, barring allegations of wilful and wanton misconduct or gross negligence, municipality and its employees were immune from liability for injuries caused or sustained by court-ordered community services participants).

However, the YMCA carried an insurance policy with a $1 million liability limit and $2 million general aggregate.Looking to common law, plaintiff argues public policy favors compensating a tort victim where insurance protects public or charitable funds and, therefore, where a public or charitable entity has chosen to take out liability insurance coverage, the entity has waived immunity, whether statutory or common law, to the extent of the insurance coverage.He asserts that the section 1(e) immunity is not absolute and extends only to funds beyond those covered by liability insurance coverage, i.e., that the immunity extends only to the YMCA's charitable funds unprotected by the $1 million insurance coverage and cannot be invoked to protect the insurance carrier.

Under the common law "charitable immunity doctrine," a charitable institution was absolutely immune from tort liability, the courts' reasoning being that a charity's trust funds should be protected and paying damages from those funds would divert the funds from the purpose for which they were given.See generallyMoore v. Moyle,405 Ill. 555, 558-60, 92 N.E.2d 81, 83-84(1950);Wendt v. Servite Fathers,332 Ill.App. 618, 621-32, 76 N.E.2d 342, 343-48(1947).Over time, in cases where a charitable or governmental entity carried indemnifying liability insurance, courts developed the "waiver of immunity" doctrine, holding that the charitable or governmental entity's common law immunity was not absolute if trust funds were protected and that, by buying liability insurance, the entity waived immunity to the extent of the insurance coverage because public policy favored compensating tort victims for their injuries and insurers should not be able to avoid their obligations by hiding behind a curtain of immunity.Moore,405 Ill. at 563-66, 92 N.E.2d at 86-87;Wendt,332 Ill.App. at 634, 76 N.E.2d at 349;Beach v. City of Springfield,32 Ill.App.2d 256, 260-61, 177 N.E.2d 436, 438-39(1961).The charitable immunity doctrine was abrogated by our supreme court in 1965.Darling v. Charleston Community Memorial Hospital,33 Ill.2d 326, 337, 211 N.E.2d 253, 260(1965)("the doctrine of charitable immunity can no longer stand"), followingMolitor v. Kaneland Community Unit District No. 302,18 Ill.2d 11, 163 N.E.2d 89(1959).

Plaintiff recognizes that the charitable immunity doctrine was abolished but argues that this does not necessarily constitute abolition of the waiver of immunity doctrine.He asserts the two doctrines rest on entirely different public policy considerations: the charitable immunity doctrine sought to protect the trust funds of charities while the waiver of immunity doctrine seeks to protect tort victims when charitable institutions were protected by insurance.He argues that abrogating the charitable immunity doctrine and supplanting it with statutory immunities does not eradicate the public policy favoring protection of tort victims where insurance coverage exists and that the waiver of immunity doctrine reflecting that policy should be applied in interpreting section 1(e).

Plaintiff bolsters this argument by comparing the language in section 1(e) with that in section 9-103 of the Local Governmental and Governmental Employees Tort Immunity Act(745 ILCS 10/9-103(West 2006))(Tort Immunity Act).Section 9-103(a) of the Tort Immunity Act provides in pertinent part that a local public entity can protect itself from liability by taking out insurance.745 ILCS 10/9-103(a)(West 2006).Section 9-103(c) of the Tort Immunity Act then provides that any insurance company which provides coverage to a local public entity "shall utilize any immunities or may assert any defenses to which the insured public entity or its employees are entitled."745 ILCS 10/9-103(c)(West 2006).Section 1(e) does not contain a similar provision authorizing an insurer to assert its insured's immunities.Plaintiff argues that, in the absence of such a legislative directive, strict construction of section 1(e) demands that an insurer cannot assert the section 1(e) statutory immunity because the common law waiver of immunity doctrine abrogating immunity to the extent of coverage by liability insurance must apply.He asserts that legislative abrogation of the waiver of immunity, i.e., reading language similar to that in section 9-103(c) of the Tort Immunity Act into section 1(e) to provide absolute immunity regardless of the existence of liability insurance, would be in derogation of both public policy and common law and section 1(e) should, therefore, be narrowly and strictly construed.

Statutes should be construed to ascertain and give effect to the legislature's intent.Moore v. Green,219 Ill.2d 470, 479, 302 Ill.Dec. 451, 848 N.E.2d 1015, 1020-21(2006).Statutory language must be afforded its plain, ordinary, popularly understood meaning and, unless such language is ambiguous, a statute must be applied as written without resorting to other aids of construction.Moore,219 Ill.2d at 479, 302 Ill.Dec. 451, 848 N.E.2d at 1020-21.We will not read into a statute exceptions, limitations and conditions that the legislature did not express.Petersen v. Wallach,198 Ill.2d 439, 446, 261 Ill.Dec. 728, 764 N.E.2d 19, 23(2002).

The plain language of section 1(e) makes no mention of any legislative intent that the existence of liability insurance operates as a waiver of immunity to the extent of that insurance.Putting aside the question of whether the waiver of immunity doctrine survived...