During its May term, the Illinois Supreme Court decided Harris v. Thompson, which posed the question of whether a public entity or employee could be held liable for negligent operation of an ambulance. At the close of its September term, the Court allowed a petition for review in Wilkins v. Williams. Wilkins poses the inevitable follow-up question to Harris: but what if the ambulance is operated by a private company’s employee?
Since Harris may give us clues to the Court’s initial thoughts on Wilkins, let’s start there. (For our preview of Harris, click here, and for our report on the opinion, here.) Harris reached the Court as a perceived conflict between two statutes. On the one hand, the Local Governmental and Governmental Employees Tort Immunity Act provided that public entities and employees could not be “liable for an injury caused by the negligent operation of a motor vehicle or firefighting or rescue equipment, when responding to an emergency call, including transportation of a person to a medical facility.” On the other hand, the Vehicle Code says that although the driver of an emergency vehicle has certain privileges, he or she still has “the duty of driving with due regard for the safety of all persons.” The Appellate Court had held that the Vehicle Code trumped the Tort Immunity Act, making the driver and employer potentially liable.
But the Supreme Court held that there was no conflict. According to the six-Justice majority, the Vehicle Code extended certain privileges and imposed certain duties. The Tort Immunity Act addressed a different question: whether or not there was a duty involved, was the suit barred? The Court held that it was. Chief Justice Thomas L. Kilbride dissented, arguing that there was an “obvious and undeniable conflict” between the statutes, and the Vehicle Code should have prevailed.
Wilkins involves virtually identical facts: an ambulance transporting a patient on a non-emergency run strikes another vehicle, injuring the driver. Is the driver of the ambulance and her employer liable? But in Wilkins, the ambulance was privately owned. So rather than the Tort Immunity Act, we have the Emergency Medical Services (EMS) Act to deal with.
Nonetheless, the two statutes seem similar in scope. According to the EMS Act, no “person, agency or governmental body certified, licensed or authorized pursuant to this Act” who “provides emergency or non-emergency medical services” can be “civilly liable as a result of their acts or omissions in providing such services unless such acts or omissions . . . constitute willful and wanton misconduct.” 210 ILCS 50/3.150(a).
So, two questions: (1) Does the EMS Act extend to non-emergency transport of patients? (2) Does the statute extend to injuries sustained by third parties not directly treated by EMS workers?
The first issue may not detain the Supreme Court long. Although the Legislature removed a reference to “transporting a patient” from the EMS Act in an earlier amendment, as the Appellate Court pointed out, the Supreme Court held in Abruzzo v. City of Park Ridge that the statute still impliedly covered transportation of patients. It seems unlikely that the Court will disturb Abruzzo only four years after it was decided.
The second issue is likely to be the focus of the Court’s attention. The Appellate Court concluded that the EMS Act was ambiguous with respect to whether it negated any duty to third party motorists. The Court then turned to Section 11-205 of the Vehicle Code – exactly the same provision that led the Appellate Court astray in Harris – and held that in order to give effect to both provisions, the EMS Act had to be construed as not negating the independent duty to third party motorists imposed on ambulance drivers and every other motorist. The defendants in Wilkins cited the Court to the Tort Immunity Act, but the Court held that the Tort Immunity Act “evidences the legislature clear intent to immunize public entities and employees” – an intent missing in the EMS Act.
Wilkins should be interesting to watch play out at the Supreme Court. Can the plaintiffs persuade at least four members of the Court – necessarily including at least three members of the six-Justice Harris majority -- that there is a meaningful difference between the Tort Immunity Act and the EMS Act? We should find out in between four and eight months.