Ten Eicken v. Johnson

Decision Date20 August 1971
Docket NumberGen. No. 54200
Citation273 N.E.2d 633,1 Ill.App.3d 165
PartiesHans J. TEN EICKEN, Plaintiff-Appellant, v. Lloyd JOHNSON and Otis Rogers, Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

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.

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 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 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 case, citing its broadest language to the effect that liability follows negligence.

In the later case of Lusietto v. Kingan, 107 Ill.App.2d 239, 246 N.E.2d 24 (1969), the facts of which are substantially the same as those in Kitto and in the case before us, the Third District Appellate Court held that the Maintenance Supervisor of certain state highways was personally immune from suit for injuries resulting when a car had struck a hole in the highway. The court said at page 244, 246 N.E.2d at page 27:

Quite apart from the doctrine of governmental immunity, the case law in this state has developed the doctrine of public officials' immunity. This doctrine is distinguished from and founded on a different rationale from the principle of governmental immunity * * *. In Nagle v. Wakey (161 Ill. 387, 43 N.E. 1079) supra, our Supreme Court held that the duty to keep highways in repair was a duty which required the exercise of judgment and discretion and that in performing this duty the commissioners were clothed with discretion as to the practicability of making improvements and as to the best methods to be employed, they were therefore protected by this theory of immunity. We believe that the defendant in the case now before us is entitled to that same immunity. Although the case of Molitor v. Kaneland Community Unit School Dist., * * * abolished the principle of governmental immunity, It did not destory the principle of public officials' immunity. (Emphasis supplied.)

Further, at page 244, 246 N.E.2d at page 27, the court also pointed out as the rationale for this rule that public officials performing their duty in this situation must use their discretion as to which repairs to make, in what order, and all 'within the limitations of available manpower, equipment and finances.' Continuing, at page 246, 246 N.E.2d at page 28, the court outlined the difficulties that would be raised if a contrary rule were adopted:

To hold the defendant liable in this case would be productive of many problems. Who, in the chain of command concerning state highways would be responsible? As orders filter down and reports filter up, would each individual in line be personally responsible? What if budget deficiencies due to insufficient legislative appropriations required a restriction in repair work so that only half the holes in the State's highways could be filled? Moreover, it is common knowledge that no highway is without imperfections. If every rut, hole, or blemish on the highway were to create the possibility of personal liability against one or more employees of the State Highway Department, it would be impossible to find employees willing to serve under such...

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6 cases
  • Dezort v. Village of Hinsdale
    • United States
    • United States Appellate Court of Illinois
    • February 6, 1976
    ... ... 85, sec. 1--101 et seq. See Hennigs v. Centreville Township, 56 Ill.2d 151, 306 N.E.2d 287 (1974) and Ten Eicken v. Johnson, 1 Ill.App.3d 165, 273 N.E.2d 633 (1971)) which were not cited or argued by the parties, rather than the common law ... ...
  • WARNER/ELEKTRA/ATLANTIC v. County of DuPage, Ill., 83 C 8230.
    • United States
    • U.S. District Court — Northern District of Illinois
    • March 25, 1991
    ... ... Public Official Immunity ...         Finally, DuPage invokes the common law doctrine of public official immunity. See, e.g., Ten Eicken v. Johnson, 1 Ill.App.3d 165, 273 N.E.2d 633, 636 (1st Dist.1971); Lusietto v. Kingan, 107 Ill. App.2d 239, 246 N.E.2d 24, 27 (3d Dist. 1969) ... ...
  • Horton v. City of Ottawa
    • United States
    • United States Appellate Court of Illinois
    • July 21, 1976
    ... ... Ten Eicken v. Johnson (1st Dist. 1971), 1 Ill.App.3d 165, 273 N.E.2d 633; Lusietto v. Kingan (3d Dist. 1969), 107 Ill.App.2d 239, 246 N.E.2d 24. Contra: Kitto ... ...
  • Hintz v. Jamison
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • September 10, 1984
    ...not immune after Molitor ) and Kitto v. Wattleworth, 24 Ill.App.2d 484, 164 N.E.2d 817 (1960) (same) with Ten Eicken v. Johnson, 1 Ill.App.3d 165, 273 N.E.2d 633 (1971) (Molitor did not destroy public official immunity) and Lusietto v. Kingan, 107 Ill.App.2d 239, 246 N.E.2d 24 (1969) (same)......
  • Request a trial to view additional results

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