There is a favorable provision in Illinois in the Tort Immunity Act, and that is 745 ILCS 10/2-204. Generally, public employees are immune under the Tort Immunity Act for conduct within the scope of their employment, “unless such act or omission constitutes willful or wanton conduct."
Section 2-204 states, “Except as otherwise provided by statute, a public employee, as such and acting within the scope of his employment, is not liable for an injury caused by the act or omission of another person.”
This provision stands for the proposition that a public employee is not liable for the acts or omissions of a third party. The legislature established a common-sense approach to support public employees against liability by third-party actors.
This provision provides immunity to a public employee from vicarious liability claims. Doe-3 v. McLean Cnty. Unit Dist. No. 5 Bd. Of Dirs., 973 N.E. 2d 880, 893, 362 Ill. Dec. 484, 489 (Ill. 2012). In Payne for Hicks v. Churchich, (1998) the 7th Circuit held that a sheriff could not be vicariously liable for the conduct of a deputy under section 2-204. In Clark v. Chicago (1984), the trial court in the Northern District of Illinois held that supervisors named only on respondeat superior grounds were immunized from liability under section 2-204.
So while this immunity may appear broad, it can be construed narrowly. It may still apply when a plaintiff pursues a respondeat superior claim against a public employee. However, the statute protects public employees in their personal capacity as to vicarious liability. This does not abrogate respondeat superior liability for a public entity for the conduct of one of its employees who is subject to liability. Awalt v. Marketti, 74 F. Supp. 3d 909, 943 (N.D. Ill.), supplemented, 75 F. Supp. 3d 777 (N.D. Ill. 2014). In Awalt, plaintiff asserted claims against all defendants, which included correctional officers and the sheriff’s office itself, directly. Therefore, 2-204 did not provide immunity.
Courts should be applying Section 2-204 immunity when a plaintiff fails to assert allegations directly against a public employee. Section 2-204 immunity is a narrow immunity; however, it may be appropriate when a plaintiff claims that a public employee’s conduct occurred in the course and scope of his employment and under the theory of respondeat superior.
It should be noted that just because a public employee is not immune from third-party acts or omissions, this does not necessarily mean they are liable. In a willful and wanton claim, a plaintiff must prove duty, breach, proximate cause and injury. If a third party causes an injury, then the plaintiff may not be able to satisfy the proximate cause burden (there are exceptions of course).
About Xander M. Landy
f9f21d731dff6ddbb37cff0000940c19.tmb-thumb200.jpg?sfvrsn=1 "Xander Landy Tressler LLP")
Xander is an associate attorney and member of Tressler’s Litigation Practice Group in Chicago. Xander focuses his practice on a wide range of complex civil litigation matters and has a depth of experience in the areas of general liability, including product defense and premise liability defense. He frequently handles trucking and transportation litigation, taking cases from inception to resolution. Xander also has experience defending against civil rights claims in Federal Court. Read Xander's full bio here.