also specially concurring:
I agree that plaintiff’s allegations of negligence describe discretionary acts of the fire marshal performed in the execution of governmental policy. Therefore, I agree with the majority’s conclusion that the City is presumptively immune pursuant to the Tort Immunity Act. However, I do not agree with the majority’s treatment of the special duty doctrine. I believe that the special duty doctrine should remain viable as a judicial exception to municipal immunity absent some legislative action abrogating the doctrine.
If we were writing upon a clean slate, I would be inclined to agree generally with the analysis presented in the majority opinion relating to the special duty doctrine. The special duty doctrine should have died as a means of evading municipal immunity with the passage of the Tort Immunity Act in 1965. As this court did not even acknowledge the doctrine until 1969 (see Huey v. Town of Cicero, 41 Ill. 2d 361 (1968)), the special duty doctrine should have died before it was born. It did not.
At this point, countless cases have applied the special duty doctrine for a period of over 30 years, and it has become engrafted with the Tort Immunity Act. Unlike the majority, I am also compelled to acknowledge that this court has already considered arguments relating to the questionable validity of the doctrine and pronounced that the legislature is the appropriate body to bring about any abrupt change in such long-standing public policy relating to municipal immunity.
At its heart, the special duty doctrine is a means of establishing a duty where at common law none would exist under the public duty rule. At common law, municipalities in Illinois owed no duty to the public to supply police or fire protection. Santy v. Bresee, 129 Ill. App. 3d 658, 661 (1984). This “public duty” rule prevented a plaintiffs recovery for negligence. Porter v. City of Urbana, 88 Ill. App. 3d 443, 445 (1980). The purpose of the public duty rule is clear: municipalities must not be held as insurers for every crime or fire that may occur in areas under municipal control.
The majority is correct to point out that the special duty doctrine operates as an exception to the public duty rule. The special duty doctrine was a recognition that, under certain circumstances, a municipality may impliedly undertake a duty to protect a specific individual from harm. Courts have created a four-part test to determine whether to apply negligence principles to municipal services: (1) the municipality must be uniquely aware of the particular danger or risk to which plaintiff is exposed; (2) there must be specific acts or omissions on the part of the municipality; (3) the specific acts must be affirmative or willful in nature; and (4) the injury must occur while the plaintiff is under the direct and immediate control of municipal employees or agents. Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 507 (1990). This court has further interpreted the control element to require that “the public employee initiates the circumstances which create the dangerous situation.” Burdinie, 139 Ill. 2d at 525-26.
The special duty doctrine did not merely serve to create a duty. Where shown, the existence of a special duty also constituted an exception to municipal immunity. This court abolished the common law doctrine of sovereign immunity for municipal corporations in Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11 (1959). As the majority points out, the 1970 Constitution confirmed Molitor and expressly left the issue of governmental immunities to the General Assembly. Ill. Const. 1970, art. XIII, § 4. Illinois courts, however, continued to apply the special duty doctrine as an exception to the statutory Tort Immunity Act. Since 1970, scores of cases have applied the special duty doctrine as a viable exception to municipal immunity. See Calloway v. Kinkelaar, 168 Ill. 2d 312, 339 n.1 (1995) (Freeman, J., specially concurring) (collecting cases).
With this history, we do not write upon a clean slate. Unlike the majority, I am reluctant to erase all that has been written without some reasonable impetus for change. I would also note that this court has only recently again acknowledged the continued viability of the special duty doctrine as an exception to the immunities granted in the Tort Immunity Act. In Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 511 (1990), this court stated:
“We further recognize that Illinois courts have discussed the special duty exception to the defenses and immunities provided under the Tort Immunity Act in cases decided both before and after the ratification of the present Illinois Constitution.” (Emphasis added.)
The court in Burdinie went on to examine the four prongs of the special duty doctrine, refusing to relax the requirements for evading the immunities granted by the Tort Immunity Act. The court concluded that:
“the constitutional provision which expressly grants the General Assembly control over municipal immunity convinces us that the legislature is the appropriate body to alter any existing exception to municipal tort immunity as contained in the Tort Immunity Act.” (Emphasis added.) Burdinie, 136 Ill. 2d at 520.
Thus, this court in Burdinie already determined that the consistent application of the special duty doctrine in so many cases over so many years should not be judicially brushed aside. Despite the questionable genesis of the special duty doctrine, I consider the majority’s reversal in this regard to be an affront to principles of stare decisis. In addition, the legislature has apparently acquiesced in the continued application of the special duty doctrine by failing to take up this court’s invitation to address it through the legislative process. See Charles v. Seigfried, 165 Ill. 2d 482, 492 (1995).
In passing, I also question the logic supporting the majority’s conclusion that it was the Constitution of 1970 which constituted the death knell of the special duty exception to municipal immunity. In 1965, the General Assembly enacted the first comprehensive version of the Local Governmental and Governmental Employees Immunity Act. Thus, the legislature acted to immunize municipalities and their agents prior to the ratification of the 1970 Constitution, and its provision abrogating sovereign immunity. Presumably, the special duty doctrine should have died as a means of evading municipal immunity with the passage of the Tort Immunity Act in 1965; the ratification of the 1970 Constitution is irrelevant.
In closing, I question why the majority need reach the issue of the constitutionality of the special duty doctrine in this case at all. It is well settled that a court should avoid constitutional issues where they are not necessary to the disposition and the case can be decided on nonconstitutional grounds. In re S.G., 175 Ill. 2d 471, 479 (1997). Plaintiff cannot establish a special duty as a matter of law because the fire marshal was not uniquely aware of the danger from the design of the door. In fact, even accepting the allegations in plaintiff’s complaint, it would appear that the fire marshal was completely oblivious to the nature of the risk of harm in ordering the plaintiff to stand near the door. I would reject application of the special duty doctrine on this basis alone. For this reason, I concur in the judgment of the majority dismissing plaintiff’s complaint.