Defining the Scope of the Public Duty Rule


The Illinois Supreme Court will release two civil opinions tomorrow [pdf]. While we await the opinions, here’s a preview of the first case, Doe v. White [pdf].

Doe arises from a sexual abuse case against a second-grade teacher in Urbana. The victims and their mothers sued not only the Urbana school district and various administrators, but also the McLean County School District – the teacher’s previous employer. According to the operative complaint, administrators in McLean County knew that the teacher had abused students, and nevertheless (1) failed to report him to the state Department of Children and Family Services; (2) created a falsely positive letter of recommendation; (3) entered into a severance agreement with the teacher concealing the abuse; (4) falsified information on the verification-of-teaching experience form McLean sent Urbana; and (5) failed to inform Urbana administrators of the teacher’s conduct. Only the plaintiffs’ claims against McLean are at issue before the Supreme Court: willful and wanton conduct, fraudulent concealment, conspiracy and breach of fiduciary duty.

The case raised a host of issues below – including whether the Abused and Neglected Child Reporting Act (325 ILCS 5/1 et seq.) includes a private right of action – but primarily, the defendants relied on the public duty rule. The public duty rule is a common law principle which essentially says that no individual standing can state a cause of action against a governmental actor for failure to do his or her job appropriately. Originally fashioned to protect police officers, fire fighters and other first responders, the underlying theory is that the governmental actor owes a duty to the public as a whole, not to any individual citizen. Over time, the “special duty exception” to the rule developed, which creates a duty where the governmental actor is uniquely aware of the particular danger to which the plaintiff is exposed, the actor is guilty of specific affirmative acts or omissions, and the injury occurs while the plaintiff is under the direct and immediate control of the governmental entity. The trial court dismissed Doe pursuant to the public duty rule.

The Appellate Court reversed. It was unnecessary to reach the special duty exception, the Court held; the public duty rule never applied in the first place. The plaintiffs’ allegations, according to the Court, were not analogous to a failure to perform a routine governmental duty adequately, harming the general public; rather, the plaintiffs alleged that the defendants had recklessly created the specific danger complained of.

As a general rule, there is no tort duty to protect another from the criminal act of a third party, but the Court held that at least two exceptions to this general principle created a duty in Doe: “voluntary undertaking” under Section 324A of the Restatement (Second) of Torts, and “negligent misrepresentation involving risk of physical harm” pursuant to Section 311.

Even if the Supreme Court stops there, the opinion will shed interesting light on a variety of tort doctrines under Illinois law.  But watch to see whether the Court takes up an invitation issued by the Appellate Court in dicta from the final two paragraphs of its opinion.

The “state-created danger” doctrine is a theory developed almost entirely in the Federal courts.  The doctrine holds that a governmental entity can be liable where it has affirmatively placed a person in a position of danger he or she would not have otherwise faced, and as a result the person is injured by a third party.  The Appellate Court acknowledged that neither the Illinois appellate courts nor the United States Supreme Court had ever adopted the doctrine, but suggested that Doe might provide an appropriate vehicle for the Illinois Supreme Court to do so.

Join us back here later today for a preview of the second upcoming opinion, Santiago v. E. W. Bliss Co. [pdf].


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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