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A manufacturer sued the City for negligence, alleging fire destroyed its facility because the City interrupted water service to the building's sprinklers and nearby fire hydrants, and failed to restore service before the fire. The City shut off water to the block on which the facility was located to work on a nearby water main. The City did not notify the manufacturer or the Chicago Fire Department about its work, and did not turn the water back on after it completed the work. The Seventh Circuit held the City was immune from negligence under Section 5-102 of the Tort Immunity Act, which protects a municipality from liability for its failure to suppress or contain a fire.

Municipalities have no duty to enforce building code provisions.
Ware v. City of Chicago, 375 Ill.App.3d 574, 873 N.E.2d 944 (1st Dist. Aug. 1, 2007).

An apartment porch collapsed during a house party in Chicago in 2003, killing and injuring party-goers. The plaintiffs sued the City, alleging the City's inspections of the porch were willful and wanton.The plaintiffs claimed the porch, which was built without a permit in 1988, did not comply with the City building code, and that at least two inspectors visited the building on separate occasions after the porch was built without reporting the violations.The Appellate Court held the City had no duty to the plaintiff to enforce its building code, or otherwise prevent the porch collapse, because the porch was not in the immediate and direct control of the City or its inspectors when it collapsed. Moreover, the plaintiffs did not establish the City acted willfully and wantonly in its inspections of the porch.

After a child fell 40 feet off an apartment roof deck, the child's mother sued the City, alleging it willfully and wantonly issued a construction permit for the roof access, knowing the proposed construction design violated the City's building code.The Appellate Court, following decisions in Ware v. City of Chicago and Desmet v. City of Rock Island, held the City was immune from liability under Sections 2-103 and 2-105 of the Tort Immunity Act (immunity for failure to enforce a law), and 2-104 (immunity for issuance of a permit), finding those specific immunities did not conflict with the more general immunity of Section 2-202.

High-speed police pursuit does not constitute willful and wanton conduct.
Shuttlesworth v. City of Chicago, 2007 WL 3262185 (1st Dist. Nov. 5, 2007).
The plaintiff motorists were injured in a collision with another car that was attempting to elude police. The Appellate Court held the City and the police officers were not liable for the plaintiffs' injuries because there was no evidence of willful and wanton conduct. The court explained that initiating pursuit, failing to activate emergency equipment or failing to notify superiors about the pursuit did not constitute willful and wanton conduct. The officers did not conduct the pursuit in a reckless manner, and the undisputed evidence showed the weather was clear, traffic was light and the roads were dry. The plaintiffs' claim that the police vehicle was approaching her car at a high rate of speed alone did not rise to the level of willful and wanton conduct.

Condemnation

Landowners constitutional rights are not violated by condemnation proceedings.

Stahelin v. Forest Preserve District of DuPage County, 2007 WL 3052853 (2d Dist. Oct. 10, 2007).
The plaintiffs owned a parcel of land bordering the Morton Arboretum which they planned to develop. The Forest Preserve District of DuPage County ("District"), however, wanted to preserve the property for the benefit of the public. The District passed an enabling ordinance which authorized agents of the District to begin good faith negotiations to purchase the land, and later passed another ordinance authorizing acquisition of the property through negotiation or condemnation. When negotiations proved unsuccessful, the District filed a complaint for condemnation, but then voluntarily dismissed the action based on lack of need for the property.The plaintiffs sued the District alleging a due process violation and inverse condemnation.The Appellate Court held the plaintiffs' constitutional rights were not violated because the District had the statutory authority to condemn the property, there was no taking, and Morton was protected by the Noerr-Pennington doctrine of the right to petition.

Employment Discrimination and the First Amendment
Teachers have no right to promote religion in public schools.
Grossman v. South Shore Public School District, 2007 WL 3377167 (7th Cir. Nov. 15, 2007).
The defendant School District decided not to renew the contract of a third year probationary school guidance counselor. The counselor sued, alleging the School District discriminated against her on the basis of her religious beliefs in violation of her First Amendment rights because, during her employment, she refused to distribute literature designed to instruct students on condom use. She also replaced the condom instruction with literature advocating abstinence and occasionally prayed with students. The Seventh Circuit held a teacher has no First Amendment right to promote religion as a part of her job description, and that the School District could refuse the contract renewal as a part of its right to control the school curriculum.

Race-Based School Assignments
School districts may not base school assignments only on race.
Parents Involved in Community Schools v. Seattle School District No. 1 et al, 127 S.Ct. 2738 (June 28, 2007).
School districts in Seattle, Washington and Louisville, Kentucky adopted student assignment plans that used race to determine which public schools students could attend. The Seattle School District classified students as white or nonwhite. The Louisville School District classified students as black or "other." The United States Supreme Court held the School Districts' plans were unconstitutional. The Court explained the plans did not provide for a meaningful individualized review of applicants but instead relied on the racial classification in a non-individualized way. As a result, the plans improperly based assignments solely on a student's race. The plans also applied a very limited notion of race (white or nonwhite; black or "other"). Finally, the Court found the plans were not narrowly tailored to satisfy a compelling state interest.

First Amendment - After Garcetti
Sergeant's complaint about use of "trash rip" not protected by the First Amendment.

A former police sergeant brought a Section 1983 lawsuit against his chief and deputy chief, alleging his First Amendment rights were violated. The sergeant, who supervised the narcotics unit, learned that detectives were searching the garbage of suspects, known as a "trash rip," in an attempt to find probable cause to obtain a search warrant. The sergeant reported the practice to his supervisors, then claimed that a subsequent transfer was retaliation for the complaint. The Seventh Circuit held that because the sergeant was responsible for the narcotics unit, his complaint about misconduct in the unit was pursuant to his official responsibilities and, therefore, unprotected speech under the First Amendment.

PREVIOUSLY REPORTED CHANGES/ POSSIBLE CHANGES IN THE LAW THAT MAY AFFECT YOU

Public Act 95-244: School Boards May Levy Taxes to Pay Environmental Settlement or Judgment.
Public Act 95-244, effective August 17, 2007, amended the School Code and the Local Governmental and Governmental Employees Tort Immunity Act to provide that, until December 31, 2010, the school board of any school district may use a tax levy to pay for settlements or judgments under the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 and the Environmental Protection Act.

Public Act 95-243: Petitioner Alleging Unlawful Discrimination May Now Elect to Go to State Court.

Public Act 95-243, effective January 1, 2008, amends the Illinois Human Rights Act to provide that a civil rights petitioner may file a complaint in state court if (1) the Department does not issue a decision on the charge within 365 days of the charge filing date; (2) the Department makes a finding of substantial evidence or (3) the Department makes a finding of no substantial evidence. The petitioner has 90 days to file a claim in state court after any of these things occur.

Public Act 95-123: Court Order Required to Obtain Minor's Law Enforcement Records.
Public Act 95-123, effective August 13, 2007, amended the Juvenile Court Act to specify that in order to obtain the law enforcement records of a juvenile, a person must obtain a court order and not simply issue a civil subpoena. Any records obtained in violation of the provision are not admissible in any criminal or civil proceeding.

Public Act 95-25: Employer Required to Temporarily Transfer Pregnant Police Officer or Firefighter to Less Strenuous or Hazardous Position.
Public Act 95-25, effective January 1, 2008, amends the Illinois Human Rights Act to require an employer to temporarily transfer a pregnant police officer or firefighter to a less strenuous or hazardous position on advice from her doctor for the duration of the pregnancy if the transfer can be reasonably accommodated.

Public Act 95-506: Citizen Participation Act Created to Provide for Expedited Procedures in SLAPP Cases.
Public Act 95-506, effective August 28, 2007, created the Citizen Participation Act to provide expedited civil procedures against SLAPP litigation (Strategic Lawsuits Against Public Participation). This includes the adjudication and dismissal of litigation within 90 days of filing of a motion to dismiss, and suspension of discovery pending a decision on the motion to dismiss.

Public Act 95-541: Gender Discrimination Prohibited Under Illinois Civil Rights Act.
Public Act 95-541, effective January 1, 2008, amends the Illinois Civil Rights Act of 2003 to include gender, in addition to the existing prohibition of discrimination based on race, color and national origin.

Public Act 95-316: Rebuttable Presumption That Certain Ailments Related to Firefighter's Job.
Public Act 95-316, effective January 1, 2008, provides that emergency medical technicians and paramedics who have at least five years of experience will receive a rebuttable presumption that any impairment of health arising from any bloodborne pathogen, lung or respiratory disease or condition, heart or vascular disease or condition, hypertension, tuberculosis, cancer, hernia or hearing loss arises out of and in the course of the employee's employment. The condition would also be rebuttably presumed to be causally connected to the hazards or exposures of employment.

Public Act 95-681: Change in Downstate Firefighter Disability Pension Process.
Public Act 95-681, effective October 11, 2007, amended the downstate (non-Chicago) fire pension statute to provide the three physicians' opinions required for a determination of disability need not agree as to the existence of a disability or the nature and extent of the disability. The law further provides no physical or mental disability that constitutes the basis of an application for disability benefits may be used to discharge a firefighter, emergency medical technician or paramedic. Upon proof that a firefighter has recovered from disability, the board would terminate the disability pension and the municipality would be required to immediately return the firefighter to its payroll.

SB 1475: Definition of Catastrophic Injury Under Public Safety Employees Benefits Act.

SB 1475 would add a definition of catastrophic injury to the Public Safety Employees Benefits Act, defining it as: "a grievous or serious injury or impairment of a nature that is sufficient to permanently preclude the injured employee from performing any gainful work." The bill would also permit an employer to require an employee to submit to examination by up to three licensed physicians. This bill remains in the Senate.

SB 1296: Providing That Apportionment of Fault For Joint Liability Applies Only to Parties Remaining In Case When Liability Imposed.
SB 1296 would change Section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117) to specify that where joint liability is imposed, the apportionment of fault would only apply to the parties still remaining in the case after liability is imposed.Apportionment would not apply to defendants that had been dismissed for any reason, including settlement. This bill was passed by the Senate on March 20, 2007, and remains in the House.

HB 0511: Defining As Public Record Only That Portion of a Settlement Agreement That Shows The Total Amount of Money To Be Paid or Value of Other Agreement.

HB 0511 would amend the Illinois Freedom of Information Act to include in the definition of "public records" only that portion of a settlement agreement entered into by or on behalf of a public body that shows the total amount of money to be paid or financial value of any other agreements in the settlement (if the information is not otherwise exempt under the Act), as well as the amount of money expended by or on behalf of the public body for the prosecution, defense, or settlement of the litigation. This bill was passed by the House on May 3, 2007, and remains in the Senate.

The attorneys who comprise Ancel Glink's defense litigation group are dedicated almost exclusively to defending governmental entities in tort, civil rights, employment, business and other claims and lawsuits. In addition to defending municipalities, school districts, park districts, townships and other entities in lawsuits in state and federal courts, Ancel Glink's litigation group handles appeals, administrative hearings, critical incident crisis management, loss control training and seminars, file audits, and special consultation. Visit our web-site at www.ancelglink.com or email us at e-news@ancelglink.com.

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