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90_HB0374
745 ILCS 10/1-101.1 from Ch. 85, par. 1-101.1
745 ILCS 10/1-210 from Ch. 85, par. 1-210
745 ILCS 10/1-211 formerly 10/3-101
from Ch. 85, par. 3-101
745 ILCS 10/2-201 from Ch. 85, par. 2-201
745 ILCS 10/2-202 from Ch. 85, par. 2-202
745 ILCS 10/3-102 from Ch. 85, par. 3-102
745 ILCS 10/3-103 from Ch. 85, par. 3-103
745 ILCS 10/3-105 from Ch. 85, par. 3-105
745 ILCS 10/3-106 from Ch. 85, par. 3-106
745 ILCS 10/3-108 from Ch. 85, par. 3-108
745 ILCS 10/4-108 new
745 ILCS 10/9-103 from Ch. 85, par. 9-103
745 ILCS 10/9-107 from Ch. 85, par. 9-107
745 ILCS 10/3-109 rep.
Amends the Local Governmental and Governmental Employees
Tort Immunity Act. Makes numerous changes regarding the
scope and nature of immunities and liability under the Act.
Also makes changes in language authorizing Local public
entities to obtain insurance or self insurance and
authorizing a tax levy to pay for insurance and other
expenses. Effective immediately.
LRB9000487WHmgA
LRB9000487WHmgA
1 AN ACT TO amend the Local Governmental and Governmental
2 Employees Tort Immunity Act by changing, adding, and
3 repealing various Sections.
4 Be it enacted by the People of the State of Illinois,
5 Section 5. The Local Governmental and Governmental
6 Employees Tort Immunity Act is amended by changing Sections
7 1-101.1, 1-210, 2-201, 2-202, 3-102, 3-103, 3-105, 3-106,
8 3-108, 9-103, and 9-107, by adding Section 4-108, and by
9 changing and renumbering Section 3-101 as follows:
10 (745 ILCS 10/1-101.1) (from Ch. 85, par. 1-101.1)
11 Sec. 1-101.1. (a) The purpose of this Act is to protect
12 local public entities and public employees from liability
13 arising from the operation of government and its terms and
14 provisions shall be liberally construed to effectuate this
15 legislative purpose. It grants only immunities and
16 defenses, and does not create any duties on the part of a
17 local public entity or public employee.
18 (b) Any defense or immunity, common law or statutory,
19 available to any private person shall likewise be available
20 to local public entities and public employees.
21 (c) It is and always has been the express intent of the
22 General Assembly by the provisions of this Act to fully
23 immunize local public entities and public employees, subject
24 only to those conditions, limitations, and exceptions
25 expressly provided in this Act. No other conditions,
26 limitations, or exceptions, whether based on other statutes
27 or on the common law, including but not limited to the
28 "special duty doctrine", may be applied so as to limit or
29 negate any of the immunities afforded by this Act.
30 (d) The immunities provided in this Act apply equally to
31 "discretionary" and "ministerial" conduct, acts, or
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1 omissions, and, unless otherwise specifically provided in
2 this Act, apply to any theory of liability whether based on
3 negligence or on willful and wanton conduct or on
4 "nonfeasance" or on "misfeasance".
5 (e) Wherever any provision in this Act conflicts with
6 the terms or provisions of any other law or statute, this Act
7 shall prevail.
8 (f) All amendments to this Act made by this amendatory
9 Act of 1997 shall be applied retroactively when substantively
10 applicable, including all pending actions without regard to
11 when the cause of action accrued.
12 (Source: P.A. 84-1431.)
13 (745 ILCS 10/1-210) (from Ch. 85, par. 1-210)
14 Sec. 1-210. "Willful and wanton conduct" as used in this
15 Act means a course of action which shows a an actual or
16 deliberate intention to cause harm or which, if not
17 intentional, shows an utter indifference to or conscious
18 disregard for the safety of others or their property with
19 actual knowledge of both the danger created and that serious
20 injury is highly probable to follow.
21 (Source: P.A. 84-1431.)
22 (745 ILCS 10/1-211, formerly 10/3-101) (from Ch. 85, par.
23 3-101)
24 Sec. 1-211 3-101. Property of a local public entity;
25 public property. As used in this Article unless the context
26 otherwise requires "Property of a local public entity" and
27 "public property" mean any real or personal property owned,
28 or leased, possessed, managed, maintained, used, or
29 controlled by a local public entity, but do not include
30 easements, encroachments and other property that are located
31 on its property but that it does not own, possess or lease.
32 (Source: Laws 1965, p. 2983.)
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1 (745 ILCS 10/2-201) (from Ch. 85, par. 2-201)
2 Sec. 2-201. Discretionary immunity for non-ministerial
3 matters.
4 (a) A public employee is not liable for any injury
5 arising out of or resulting from the exercise of discretion
6 or judgment in the performance of or failure to perform any
7 act or omission while acting on behalf of the public entity.
8 (b) A public employee also possesses the discretionary
9 immunity in subsection (a) in determining whether to enact
10 initially, or, when enacted, whether to enforce the public
11 entity's own internal policies guidelines, standards, rules,
12 regulations, and the like. Except as otherwise provided by
13 Statute, a public employee serving in a position involving
14 the determination of policy or the exercise of discretion is
15 not liable for an injury resulting from his act or omission
16 in determining policy when acting in the exercise of such
17 discretion even though abused.
18 (Source: Laws 1965, p. 2983.)
19 (745 ILCS 10/2-202) (from Ch. 85, par. 2-202)
20 Sec. 2-202. (a) No A public employee is not liable for
21 his or her act or omission in the execution or enforcement of
22 any law unless such act or omission constitutes willful and
23 wanton conduct.
24 (b) No public employee of a police department or law
25 enforcement agency is liable for his or her act or omission
26 in the course of his or her employment or in furtherance of
27 his or her official duties unless the act or omission
28 constitutes willful and wanton conduct.
29 (c) Nothing in this Section limits or otherwise modifies
30 the immunities provided in this Act.
31 (Source: P.A. 84-1431.)
32 (745 ILCS 10/3-102) (from Ch. 85, par. 3-102)
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1 Sec. 3-102. Notice of defect in premises.
2 (a) A local public entity is not liable for injury for
3 failure to maintain its property in reasonably safe condition
4 for intended and permitted users unless it is proven that it
5 has actual notice of the existence of the unsafe condition in
6 sufficient time to remedy the condition.
7 (b) A local public entity is not liable for injury to
8 intended and permitted users except for willful and wanton
9 conduct for failure to maintain its property in reasonably
10 safe condition.
11 (c) A local public entity is not liable for injury to a
12 person who is not an intended and permitted user of the
13 property.
14 (d) Without implied limitation, a person using public
15 property in a manner prohibited by law, rule, regulation,
16 ordinance, custom, practice, and the like is not an intended
17 or permitted user. (a) Except as otherwise provided in this
18 Article, a local public entity has the duty to exercise
19 ordinary care to maintain its property in a reasonably safe
20 condition for the use in the exercise of ordinary care of
21 people whom the entity intended and permitted to use the
22 property in a manner in which and at such times as it was
23 reasonably foreseeable that it would be used, and shall not
24 be liable for injury unless it is proven that it has actual
25 or constructive notice of the existence of such a condition
26 that is not reasonably safe in reasonably adequate time prior
27 to an injury to have taken measures to remedy or protect
28 against such condition.
29 (b) A public entity does not have constructive notice of
30 a condition of its property that is not reasonably safe
31 within the meaning of Section 3-102(a) if it establishes
32 either:
33 (1) The existence of the condition and its character of
34 not being reasonably safe would not have been discovered by
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1 an inspection system that was reasonably adequate considering
2 the practicability and cost of inspection weighed against the
3 likelihood and magnitude of the potential danger to which
4 failure to inspect would give rise to inform the public
5 entity whether the property was safe for the use or uses for
6 which the public entity used or intended others to use the
7 public property and for uses that the public entity actually
8 knew others were making of the public property or adjacent
9 property; or
10 (2) The public entity maintained and operated such an
11 inspection system with due care and did not discover the
12 condition.
13 (Source: P.A. 84-1431.)
14 (745 ILCS 10/3-103) (from Ch. 85, par. 3-103)
15 Sec. 3-103. (a) A local public entity is not liable under
16 this Article for an injury caused by the adoption of a plan
17 or design of a construction of, or an improvement to public
18 property where the plan or design has been approved in
19 advance of the construction or improvement by the legislative
20 body of such entity or by some other body or employee
21 exercising discretionary authority to give such approval or
22 where such plan or design is prepared in conformity with
23 standards previously so approved. The local public entity is
24 liable, however, if after the execution of such plan or
25 design it appears from its use that it has created a
26 condition that it is not reasonably safe.
27 (b) A public employee is not liable under this Article
28 for an injury caused by the adoption of a plan or design of a
29 construction of, or an improvement to public property.
30 (Source: Laws 1965, p. 2983.)
31 (745 ILCS 10/3-105) (from Ch. 85, par. 3-105)
32 Sec. 3-105. (a) Neither a local public entity nor a
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1 public employee is liable for an injury caused by the effect
2 of weather conditions as such on the use of streets,
3 highways, alleys, sidewalks or other public ways, or places,
4 or the ways adjoining any of the foregoing, or the signals,
5 signs, markings, traffic or pedestrian control devices,
6 equipment or structures on or near any of the foregoing or
7 the ways adjoining any of the foregoing. For the purpose of
8 this section, the effect of weather conditions as such
9 includes but is not limited to the effect of wind, rain,
10 flood, hail, ice or snow but does not include physical damage
11 to or deterioration of streets, highways, alleys, sidewalks,
12 or other public ways or place or the ways adjoining any of
13 the foregoing, or the signals, signs, markings, traffic or
14 pedestrian control devices, equipment or structures on or
15 near any of the foregoing or the ways adjoining any of the
16 foregoing resulting from weather conditions.
17 (b) Without implied limitation, neither a local public
18 entity nor a public employee is liable for any injury caused
19 by the failure of a local public entity or a public employee
20 to upgrade any of its property, or the facilities and
21 improvements on that property, to current standards existing
22 street, highway, alley, sidewalk or other public way or
23 place, or the ways adjoining any of the foregoing, or the
24 signals, signs, markings, traffic or pedestrian control
25 devices, equipment or structures on or near such street,
26 highway, alley, sidewalk or other public way or place, or the
27 ways adjoining any of the foregoing from the standards, if
28 any, which existed at the time of the original dedication to,
29 or acquisition of, the right of way of such street, highway,
30 alley, sidewalk or other public way or place, or the ways
31 adjoining any of the foregoing, by the first local public
32 entity to acquire the property or right of way, to standards
33 which are or may be applicable or are imposed by any
34 government or other person or organization between the time
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1 of such dedication and the time of such injury.
2 (c) (Blank.) Nothing in this Section shall relieve the
3 local public entity of the duty to exercise ordinary care in
4 the maintenance of its property as set forth in Section
5 3-102.
6 (Source: P.A. 84-1431.)
7 (745 ILCS 10/3-106) (from Ch. 85, par. 3-106)
8 Sec. 3-106. Public property intended or permitted to be
9 used for recreational purposes. Neither a local public entity
10 nor a public employee is liable for an injury where the
11 liability is in any way related to based on the existence of
12 a condition, maintenance, repair, control, or use of any
13 public property intended or permitted to be used for
14 recreational purposes, including but not limited to parks,
15 playgrounds, open areas, buildings or other enclosed
16 recreational facilities, unless such local entity or public
17 employee is guilty of willful and wanton conduct proximately
18 causing such injury.
19 As used in this Section, "recreational purposes" include
20 but are not limited to any activity involving amusement,
21 athletics, diversion, entertainment, exercise, fitness,
22 physical education, play, pleasure, relaxation, training, or
23 sport. "Recreational purposes" need only be one of the
24 purposes of the public property for this immunity to apply.
25 (Source: P.A. 84-1431.)
26 (745 ILCS 10/3-108) (from Ch. 85, par. 3-108)
27 Sec. 3-108. (a) Except as otherwise provided by this Act
28 and subject to subdivision (b) Neither a local public entity
29 nor a public employee is liable for an injury caused by the
30 supervision, management, operation, or control, or by a
31 failure to supervise, manage, operate, or control an activity
32 on or the use or misuse of any public property, including,
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1 without limitation, the failure to supervise or oversee any
2 and all construction, repair, and maintenance activities.
3 (b) Where a local public entity or public employee
4 designates a part of public property to be used for purposes
5 of swimming and establishes and designates by notice posted
6 upon the premises the hours of such use, the entity or public
7 employee is liable only for an injury proximately caused by
8 its failure to provide supervision during the said hours
9 posted.
10 (Source: Laws 1965, p. 2983.)
11 (745 ILCS 10/4-108 new)
12 Sec. 4-108. Criminal or intentionally tortious conduct.
13 Neither a local public entity nor a public employee is liable
14 for any injury caused or contributed to by the criminal or
15 intentionally tortious conduct of another person.
16 (745 ILCS 10/9-103) (from Ch. 85, par. 9-103)
17 Sec. 9-103. (a) A local public entity may protect itself
18 against any liability, property damage or loss which may be
19 imposed upon it or one of its employees for a tortious act
20 under Federal or State common or statutory law, or imposed
21 upon it under the Workers' Compensation Act, the Workers'
22 Occupational Diseases Act, or the Unemployment Insurance Act
23 and against any property damage or loss that the local public
24 entity may sustain directly by means including, but not
25 limited to, insurance, individual or joint self-insurance,
26 including all operating and administrative costs and expenses
27 directly associated therewith, claims services and risk
28 management directly attributable to protection against loss,
29 loss prevention and loss reduction, legal services directly
30 attributable to the insurance, self-insurance, or joint
31 self-insurance program, educational, inspectional, and
32 supervisory services directly relating to protection against
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1 loss, loss prevention and loss reduction, or participation in
2 a reciprocal insurer as provided in Sections 72, 76 and 81 of
3 the Illinois Insurance Code. Insurance shall be carried with
4 a company authorized by the Department of Insurance to write
5 such insurance coverage in Illinois.
6 (a-5) A local public entity may individually or jointly
7 self-insure provided it complies with any other statutory
8 requirements specifically related to individual or joint
9 self-insurance by local public entities. Whenever the terms
10 "self-insure" or "self-insurance" are utilized within this
11 Act, such term shall apply to both individual and joint
12 self-insurance. The expenditure of funds of a local public
13 entity to protect itself or its employees against liability
14 or against property damage or loss that the public entity may
15 sustain directly is proper for any local public entity. A
16 local public entity that has individually self-insured may
17 establish reserves for expected losses for any liability or
18 loss for which the local public entity is authorized to
19 purchase insurance under this Act. The decision of the local
20 public entity to establish a reserve and the amount of the
21 reserve shall be based on reasonable actuarial or insurance
22 underwriting evidence. Property taxes shall not be levied or
23 extended if the effect is to increase the reserve beyond 125%
24 of the actuary's or insurance underwriter's estimated
25 ultimate losses at the 95% confidence level. Certification
26 of the amount of the reserve shall be made by the independent
27 auditor, actuary, or insurance underwriter and included in an
28 annual report.
29 (b) A local public entity may contract for or purchase
30 any of the guaranteed fund certificates or shares of
31 guaranteed capital as provided for in Section 56 of the
32 Illinois Insurance Code. The expenditure of funds of the
33 local public entity for said contract or purchase is proper
34 for any local public entity.
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1 (c) Any insurance company that provides insurance
2 coverage to a local public entity shall utilize any
3 immunities or may assert any defenses to which the insured
4 local public entity or its employees are entitled. Public
5 entities which are individually or jointly self-insured shall
6 be entitled to assert all of the immunities provided by this
7 Act or by common law or statute on behalf of themselves or
8 their employees unless the local public entities shall elect
9 by action of their corporate authorities or specifically
10 contract to waive in whole or in part such immunities.
11 (d) Within 30 days after January 1, 1991, and within 30
12 days after each January 1 thereafter, local public entities
13 that are individually or jointly self-insured to protect
14 against liability under the Workers' Compensation Act and the
15 Workers' Occupational Diseases Act shall file with the
16 Industrial Commission a report indicating an election to
17 self-insure.
18 (Source: P.A. 89-150, eff. 7-14-95.)
19 (745 ILCS 10/9-107) (from Ch. 85, par. 9-107)
20 Sec. 9-107. A local public entity may annually levy or
21 have levied on its behalf taxes upon all taxable property
22 within its territory at a rate that will produce a sum that
23 will be sufficient to: (i) pay the cost of insurance,
24 individual or joint self-insurance (including reserves
25 thereon), including all operating and administrative costs
26 and expenses directly associated therewith, claims services
27 and risk management directly attributable to protection
28 against loss, loss prevention and loss reduction, legal
29 services directly attributable to the insurance,
30 self-insurance, or joint self-insurance program, and
31 educational, inspectional, and supervisory services directly
32 relating to protection against loss, loss prevention and loss
33 reduction, participation in a reciprocal insurer as provided
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1 in Sections 72, 76, and 81 of the Illinois Insurance Code, or
2 participation in a reciprocal insurer, all as provided in
3 settlements or judgments under Section 9-102, including all
4 costs and reserves directly attributable to being a member of
5 an insurance pool, under Section 9-103, without regard to
6 whether the liability or loss against which the insurance
7 pool provides protection is sustained directly by the local
8 public entity or by another person or entity, or both; (ii)
9 pay the costs of and principal and interest on bonds issued
10 under Section 9-105; (iii) pay judgments and settlements
11 under Section 9-104; and (iv) discharge obligations under
12 Section 34-18.1 of The School Code, as now or hereafter
13 amended, and to pay the cost of risk management programs.
14 Provided it complies with any other applicable statutory
15 requirements, the local public entity may self-insure and
16 establish reserves for expected losses for any liability or
17 loss for which the local public entity is authorized to levy
18 or have levied on its behalf taxes for the purchase of
19 insurance or the payment of judgments or settlements under
20 this Section. The decision of the board to establish a
21 reserve shall be based on reasonable actuarial or insurance
22 underwriting evidence and subject to the limits and reporting
23 provisions in Section 9-103.
24 Funds raised pursuant to this Section shall only be used
25 for the purposes specified in this Act, including protection
26 against and reduction of any liability imposed upon the
27 local public entity or one of its employees or loss described
28 hereinabove and under Federal or State common or statutory
29 law, the Workers' Compensation Act, the Workers' Occupational
30 Diseases Act and the Unemployment Insurance Act and
31 protection against any loss sustained directly by the local
32 public entity. Funds raised pursuant to this Section may be
33 invested in any manner in which other funds of local public
34 entities may be invested under Section 2 of the Public Funds
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1 Investment Act. Interest on such funds shall be used only
2 for purposes for which the funds can be used or, if surplus,
3 must be used for abatement of property taxes levied by the
4 local taxing entity.
5 A local public entity may enter into intergovernmental
6 contracts with a term of not to exceed 12 years for the
7 provision of joint self-insurance which contracts may include
8 an obligation to pay a proportional share of a general
9 obligation or revenue bond or other debt instrument issued by
10 a local public entity which is a party to the
11 intergovernmental contract and is authorized by the terms of
12 the contract to issue the bond or other debt instrument.
13 Funds due under such contracts shall not be considered debt
14 under any constitutional or statutory limitation and the
15 local public entity may levy or have levied on its behalf
16 taxes to pay for its proportional share under the contract.
17 Funds raised pursuant to intergovernmental contracts for the
18 provision of joint self-insurance may only be used for the
19 payment of any cost, liability or loss against which a local
20 public entity may protect itself or self-insure pursuant to
21 Section 9-103 or for the payment of which such entity may
22 levy a tax pursuant to this Section, including tort judgments
23 or settlements, costs associated with the issuance,
24 retirement or refinancing of the bonds or other debt
25 instruments, the repayment of the principal or interest of
26 the bonds or other debt instruments, the costs of the
27 administration of the joint self-insurance fund, consultant,
28 and risk care management programs or the costs of insurance.
29 Any surplus returned to the local public entity under the
30 terms of the intergovernmental contract shall be used only
31 for purposes set forth in subsection (a) of Section 9-103 and
32 Section 9-107 or for abatement of property taxes levied by
33 the local taxing entity.
34 Any tax levied under this Section shall be levied and
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1 collected in like manner with the general taxes of the entity
2 and shall be exclusive of and in addition to the amount of
3 tax that entity is now or may hereafter be authorized to levy
4 for general purposes under any statute which may limit the
5 amount of tax which that entity may levy for general
6 purposes. The county clerk of the county in which any part of
7 the territory of the local taxing entity is located, in
8 reducing tax levies under the provisions of any Act
9 concerning the levy and extension of taxes, shall not
10 consider any tax provided for by this Section as a part of
11 the general tax levy for the purposes of the entity nor
12 include such tax within any limitation of the percent of the
13 assessed valuation upon which taxes are required to be
14 extended for such entity.
15 With respect to taxes levied under this Section, either
16 before, on, or after the effective date of this amendatory
17 Act of 1994:
18 (1) Those taxes are excepted from and shall not be
19 included within the rate limitation imposed by law on
20 taxes levied for general corporate purposes by the local
21 public entity authorized to levy a tax under this
22 Section.
23 (2) Those taxes that a local public entity has
24 levied in reliance on this Section and that are excepted
25 under paragraph (1) from the rate limitation imposed by
26 law on taxes levied for general corporate purposes by the
27 local public entity are not invalid because of any
28 provision of the law authorizing the local public
29 entity's tax levy for general corporate purposes that may
30 be construed or may have been construed to restrict or
31 limit those taxes levied, and those taxes are hereby
32 validated. This validation of taxes levied applies to all
33 cases pending on or after the effective date of this
34 amendatory Act of 1994.
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1 (3) Paragraphs (1) and (2) do not apply to a
2 hospital organized under Article 170 or 175 of the
3 Township Code, under the Town Hospital Act, or under the
4 Township Non-Sectarian Hospital Act and do not give any
5 authority to levy taxes on behalf of such a hospital in
6 excess of the rate limitation imposed by law on taxes
7 levied for general corporate purposes. A hospital
8 organized under Article 170 or 175 of the Township Code,
9 under the Town Hospital Act, or under the Township
10 Non-Sectarian Hospital Act is not prohibited from levying
11 taxes in support of tort liability bonds if the taxes do
12 not cause the hospital's aggregate tax rate from
13 exceeding the rate limitation imposed by law on taxes
14 levied for general corporate purposes.
15 Revenues derived from such tax shall be paid to the
16 treasurer of the local taxing entity as collected and used
17 for the purposes of this Section and of Section 9-102,
18 9-103, 9-104 or 9-105, as the case may be. If payments on
19 account of such taxes are insufficient during any year to
20 meet such purposes, the entity may issue tax anticipation
21 warrants against the current tax levy in the manner provided
22 by statute.
23 (Source: P.A. 88-545; 88-692, eff. 2-4-95; 89-150, eff.
24 7-14-95.)
25 (745 ILCS 10/3-109 rep.)
26 Section 15. The Local Governmental and Governmental
27 Employees Tort Immunity Act is amended by repealing Section
28 3-109.
29 Section 999. Effective date. This Act takes effect upon
30 becoming law.