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Ambulance driver not liable for only slowing at a stop sign.
Williams v. City of Evanston, 2007 WL 4591621 (1st Dist. Dec. 28, 2007).

A motorist brought a complaint against the City of Evanston and a City ambulance driver alleging negligence and willful and wanton conduct after the motorist and ambulance driver collided. The appellate court held the driver was immune from liability under Section 5-106 of the Tort Immunity Act, which provides immunity for the negligent operation of firefighting or rescue equipment when responding to an emergency call. The court explained that the ambulance driver's failure to stop at a stop sign before proceeding through the intersection did not constitute willful or wanton conduct. The court further explained that the Illinois Vehicle Code provides that an ambulance driver can proceed past a stop sign after slowing, no witnesses testified to the ambulance speed before the collision, the driver himself testified that he slowed down before entering the intersection, and the driver and two other witnesses heard the ambulance siren before the collision.

The Tort Immunity Act does not override the Domestic Violence Act.
Lacey v. Village of Palatine, 2008 WL 341477 (1st Dist. Feb. 4, 2008).

The failure to prevent domestic violence continues to present increased potential for municipal liability. The family of Mary Lacey and her mother sued the Village of Palatine, the Village of Glenview, and several of their police officers after Lacey and her mother were murdered by Lacey's ex-boyfriend, Steven Zirko. The family alleged that Palatine and Glenview police assured Lacey they would protect her and her family after they learned that Zirko had plotted to kill her. According to the complaint, the officers promised a 24 hour watch, but ended it a few weeks later and one week before the murders Lacey repeatedly called the police asking for protection. The trial court dismissed the complaint based on the absolute immunities of Section 4-102 (failure to provide police protection) and Section 4-107 (failure to make an arrest) of the Tort Immunity Act, but the appellate court reversed, finding that the Domestic Violence Act trumped the Tort Immunity Act. Under Section 305 of the Domestic Violence Act, a law enforcement officer has immunity for rendering emergency assistance or otherwise enforcing the Act, except for willful and wanton conduct. The appellate court also held the plaintiffs sufficiently stated a claim for willful and wanton conduct, and that the Domestic Violence Act applied because the officers' actions in informing Lacey of the plot, meeting with her about it, and promising her protection were efforts to prevent abuse covered under the Act.

Due Process
Violation of a Village ordinance does not equal a due process violation.
Miyler v. Village of East Galesburg, 512 F.3d 896(7th Cir. Jan. 9, 2008).

The police chief of East Galesburg alleged that his termination violated due process. The former chief argued that state law establishing procedures for removal of a municipal officer and a Village ordinance requiring the consent of the Village president, who happened to be the chief's mother, to remove an officer created a protected property interest in his position. The chief alleged that the Village President did not consent to the firing as required under the Village ordinance. The Seventh Circuit held the former chief did not have a due process property interest in his continued employment as police chief because he was an at-will employee and absent a reasonable expectation of continued employment, Illinois public employees do not have property rights in their jobs which trigger due process protection. The court ruled that the state statute and Village ordinance did not create such an expectation.

Roach-infested cell does not automatically invoke the Fourteenth Amendment.
Sain v. Wood , 512 F.3d 886 (7th Cir. Jan. 9, 2008).

The plaintiff, a civilly committed sex offender alleged that conditions of his confinement at a correctional facility, which included a roach-infested cell, peeling paint, foul odors and no air conditioning, violated his 14th Amendment due process rights. The Seventh Circuit held the conditions may have been unpleasant, but did not amount to inhumane treatment sufficient to violate the 14th Amendment. The court also held the failure of the director of the facility to transfer the sex offender to a better facility did not amount to deliberate indifference. The court explained that even assuming the director knew about the poor conditions, and had the authority to transfer the offender, the director's decision was reasonable. The director concluded that a transfer would contravene the offender's treatment objectives because the rooms in the new unit were double occupancy, and the offender had refused to participate in sex offender treatment programs and had a history of sexual aggression with other inmates.

Family Medical Leave Act
FMLA protection for substance abusers only begins when treatment begins.
Darst v. Interstate Brands Corp, 512 F.3d 903 (7th Cir. Jan. 11, 2008).

An employee suffering from alcoholism was terminated for excessive absenteeism after missing three days of work because of a drinking binge. The employee missed work after he called his doctor to arrange for treatment but before his hospitalization. The Seventh Circuit held the employee was not entitled to FMLA protection for the three days and was lawfully terminated. The court explained that FMLA leave for substance abuse is available only when the employee is undergoing "treatment." Under FMLA regulations, "treatment" includes "examinations to determine if a serious health condition exists and evaluation of the condition." In other words, the employee was entitled to FMLA leave only for incapacity caused by treatment, and not for incapacity caused by the addiction itself. The employee's contact with his doctor before he started inpatient care did not qualify as treatment.

Illinois Vehicle Code --- Railroads
Village ordinance regulating grade crossings preempted by federal law.

Village of Mundelein v. Wisconsin Central Railroad, 2008 WL 217171 (Ill. Jan. 25, 2008). A railroad company was issued a citation for violating the Village of Mundelein's ordinance prohibiting obstruction of a railroad-highway grade crossing. The railroad company blocked the highway grade crossing in the Village for 157 minutes. The Village ordinance adopted by reference Section 18c-7402 of the Illinois Motor Vehicle Code, which provides a 10 minute time limit on blocking highway crossings by a train, unless the railroad can show the blockage is not within its reasonable control. The Illinois Supreme Court held the Village's ordinance was preempted by the Federal Railroad Safety Authorization Act, which was enacted to promote safety in every area of railroad operations. The court explained the regulation the ordinance sought to achieve was subsumed within federal regulations on train speed, air brake testing, and grade crossing safety, which work together to govern the movement of trains at grade crossings.

New Illinois Legislation
HB 5578: Subpoenaing Public School Teachers During School Hours.

HB 5578 would amend the Illinois Code of Civil Procedure to change how public school employees can be subpoenaed to testify during school hours. The amendment requires (1) the issuing party to first obtain a court order for the subpoena, (2) consultation with the school district to schedule the appearance to minimize disruption in the classroom and (3) reimbursement to the school district for the cost of a substitute teacher or other temporary staff, as well as the witness and mileage fee. Any conflict about the fees will be determined by the court. This bill remains in the House.

HB 4270: Expanding Requirements for Responses to Public Records Act Requests.

HB 4270 would amend the Freedom of Information Act to require that a public body responding to a request for inspection and copying of public records provide the records in any form or format requested if the records are readily reproducible in that form or format. It would further require that a public body make reasonable efforts to maintain its records in reproducible formats. Finally, it would require that a public body make a reasonable effort to search for records in electronic format unless the search would significantly interfere with the operations of the automated information system. This bill remains in the House.

HB 4219: Creating Identity Protection Act Limiting Use of Social Security Numbers.

HB 4219 would create the Identity Protection Act. The Act would prohibit State and local government agencies from using an individual's social security number in certain ways, including, for example, publicly displaying the number, printing the number on a card required to access products or services, requiring an individual to transmit his or her social security number over an non-secure internet, and printing social security numbers on mailed materials unless federal law requires that the number be on the document. The restrictions would be subject to enumerated limitations, including, among others, disclosure pursuant to court order, and collection of social security numbers to prevent fraud. The Act would require local government agencies to create an identity protection policy, and violation of the Act would be a Class A misdemeanor. Finally, a home rule municipality could not regulate social security numbers in a way inconsistent with the Act. This bill remains in the House.

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.

Employees Alleging Unlawful Discrimination May Now File a Complaint in State Court.

Beginning January 1, 2008, employees bringing discrimination or harassment claims under the Illinois Human Rights Act will have access to the Illinois state circuit courts. This is a major change for employment disputes in Illinois, and will affect both employees and employers. For the first time, employers will be defending employment cases in state circuit court jury trials. This process affects private employers, and all units of local government and school districts.

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. Significantly, this law codifies the appellate court's decision in Lynch v. City of Waukegan, 363 Ill.App.3d 1078, 845 N.E.2d 911 (2d Dist. 2006). In Lynch, a 20 year veteran firefighter suffered from psychological problems which were endangering his crew's safety. He was hospitalized and placed on leave because he was unfit to perform his duties. The firefighter did not return to work after he exhausted his leave without giving any notice to his employer about his condition. As a result, he was discharged for his failure to return to work. However, after his discharge, he was granted a duty-related disability pension based on his psychological problems and panic disorder. The appellate court held that because the firefighter was granted a duty-related disability pension based on his psychological problems and panic disorder, it was improper to discharge the plaintiff for the same reasons. Therefore, under the amended Section 4-112 and Lynch, if a firefighter develops a disability as a result of his employment, he may not be discharged for that disability.

We are pleased to report two recent successful verdicts in cases handled by Ancel Glink's defense litigation group. Our firm represented the defendant municipalities and police officers in both lawsuits.

In Scandura v. Village of Lansing, Tom DiCianni and Jody Knight successfully defended a case before a Cook County jury. The plaintiffs in this case alleged the defendant police officer illegally entered their home after responding to a domestic disturbance, unreasonably deployed his taser against one of the occupants of the home, then arrested two of the occupants without lawful justification. The plaintiffs alleged battery, willful and wanton conduct, false arrest and malicious prosecution. After a ten-day trial, the jury returned a verdict in favor of the defendants on all claims.

In Adams v. Sczerbinski, Ellen Emery and Lucy Bednarek successfully defended a federal lawsuit before the Northern District of Illinois. In this case, the plaintiff alleged excessive force and false arrest after he was pulled over because he was parked in a closed car dealership at night. The plaintiff alleged the officers used excessive force against him after he was pulled over and while he was at the police station. After a five-day trial, the jury returned a verdict in favor of the defendants on all claims.

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.

This newsletter is provided as a service to our public sector clients and friends. It is intended to provide timely general information of interest, but should not be considered a substitute for legal advice. Be sure to consult with an attorney before taking action based on the contents. We welcome comments and questions. Permission to reproduce is granted provided credit is given to Ancel Glink Defense E-News and a link is provided to www.ancelglink.com. This may constitute advertising material as defined under the Illinois Rules of Professional Conduct.