Ten Eicken v. Johnson, Gen. No. 54200

• Court: United States Appellate Court of Illinois
• Writing for the Court: ENGLISH
• Citation: 273 N.E.2d 633,1 Ill.App.3d 165
• Parties: Hans J. TEN EICKEN, Plaintiff-Appellant, v. Lloyd JOHNSON and Otis Rogers, Defendants-Appellees.
• Docket Number: Gen. No. 54200
• Decision Date: 20 August 1971

Page 633

273 N.E.2d 633 1 Ill.App.3d 165 Hans J. TEN EICKEN, Plaintiff-Appellant,
v.
Lloyd JOHNSON and Otis Rogers, Defendants-Appellees. Gen. No. 54200. Appellate Court of Illinois, First District, Fifth Division. Aug. 20, 1971.

Page 634

John G. Phillips, Chicago, for plaintiff-appellant; Ellis B. Rosenzweig, Chicago, of counsel.

Richard L. Curry, Corp. Counsel, Chicago, for defendants-appellees; Marvin E. Aspen, Richard F. Friedman, Asst. Corp. Counsel, of counsel.

[1 Ill.App.3d 166] ENGLISH, Presiding Justice.

Plaintiff's amended complaint alleged that in December of 1963 he suffered personal injuries when his car fell into an unmarked rut on a Chicago public street, causing the car to strike a pillar beacon in the middle of the street. At the time, defendant Johnson was the Commissioner of Streets and Rogers was the Deputy Commissioner. ¹ This appeal is from an order of the trial court which granted defendants' motion to strike the amended complaint and dismissed the cause of action.

Because of the date of the alleged tort in this case, plaintiff's argument will be better understood after a brief summary of the development of the law in the area of governmental immunity.

In 1959 the Illinois Supreme Court decided Molitor v. Kaneland Com. Unit Dist., 18 Ill.2d 11, 163 N.E.2d 89, which ended tort immunity for school districts specifically and denounced generally the concept of governmental immunity which had existed in Illinois for decades. The opinion, at page 20, 163 N.E.2d at page 93, included the statement that

(I)t is a basic concept underlying the whole law of torts today that liability follows negligence, and that individuals and corporations are responsible for the negligence of their agents and employees acting in the course of their employment.

The General Assembly thereafter enacted numerous statutes to limit or immunize from liability various governmental units. In Harvey v. Clyde Park Dist., 32 Ill.2d 60, 203 N.E.2d 573, the Supreme Court held one of these immunizing statutes unconstitutional on the basis that the distinctions drawn between governmental bodies for the purposes of the various statutes were irrational and arbitrary. See also Hutchings v. Kraject, 34 Ill.2d 379, 215 N.E.2d 274; Grasso v. Kucharski, 93 Ill.App.2d 233, 236 N.E.2d 262, which applied the Harvey case to these statutes generally.

In 1965, the General Assembly enacted the Local Governmental and Governmental Employees Tort Immunity Act, Ill.Rev.Stat.1965, ch. 85, par. 1--101, et seq. Section 2--201 of that act reads as follows:

Except as otherwise provided by Statute, a public employee serving in a position involing the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting

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in the exercise of such discretion even though abused.

Plaintiff's position is that this statute is inapplicable, having been enacted in 1965, while the alleged tort occurred in 1963, and the Molitor [1 Ill.App.3d 167] case was in full effect at that time, allowing recovery on common law principles of tort liability. Defendants recognize the applicability of common law principles, and take the position that section 2.201 above is the statutory embodiment of what has been the prevailing common law relating to liability of public officials entirely apart from the question of governmental immunity. Defendants say that they are not liable, as the acts complained of relate to the exercise of discretion in the performance of their duties or policy-making functions.

The case relied on by plaintiff is Kitto v. Wattleworth, 24 Ill.App.2d 484, 494, 164 N.E.2d 817 (1960), in which the Second District Appellate Court held that a County Superintendent of Highways and a Road Commissioner of a township could be held personally liable for negligently permitting a road to be in a dangerous condition. The court reached this conclusion on the authority of the opinion in the Molitor...