dissenting:
The majority’s discussion of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1 — 101 et seq. (West 1994)) is telling in its omission of an important and well-established principle. Because the Act is in derogation of common law, it must be strictly construed against the local public entity or public employee. Aikens v. Morris, 145 Ill. 2d 273, 278 (1991); Snyder v. Curran Township, 167 Ill. 2d 466, 477 (1995). By ignoring this principle, my colleagues are able to invest section 2 — 201 with a meaning so broad as to encompass nearly every official decision made by a municipal employee whose responsibilities include the determination of policy. The General Assembly never intended to confer such blanket immunity, and such immunity is not necessary in order to protect public entities from liability arising from “the operation of government,” which is the purpose of the Tort Immunity Act (745 ILCS 10/1 — 101.1(a) (West 1994)).
Deciding to conduct fire drills, establishing when fire drills should be scheduled, formulating guidelines for how fire drills should be carried out, these can all legitimately be regarded as involving matters of City policy. Simply telling a person to stand in a particular place on a particular day when a drill is being carried out, as the marshal is alleged to have done here, cannot. The marshal’s instructions to plaintiff, and his attendant failure to give warnings or provide adequate alternate routes, involved nothing more than the exercise of discretion in implementing the City’s fire drill policy. That is not enough to invoke section 2 — 201’s immunity. As the majority itself correctly recognizes, there must be both an exercise of discretion and a determination of policy. 181 Ill. 2d at 341.
Because plaintiff’s injury cannot be said to have resulted from the fire marshal’s act or omission in determining policy, the appellate court was correct in concluding that section 2 — 201 does not immunize the City from liability for the fire marshal’s actions. I would therefore affirm the appellate court’s judgment reversing the dismissal of count II.
The absence of section 2 — 201 immunity also means that we should review the sufficiency of count III of plaintiffs complaint, which seeks recovery based on willful and wanton conduct. Contrary to the appellate court, I believe that the facts alleged in plaintiffs complaint would, if true, establish that the fire marshal’s actions exhibited a reckless disregard for the safety of others. The appellate court’s judgment affirming the dismissal of count III should therefore be reversed.
Without section 2 — 201 immunity, there is no need to address the special duty doctrine. Because the majority has discussed it at some length, however, I feel that some comment is necessary.
Those who have followed this court’s recent pronouncements on the doctrine will quickly see that the majority’s discussion today presents a break with how the special duty question has been viewed. Although it gives no attribution, the majority’s analysis appears to be derived from Justice Bilandic’s dissenting opinion in Leone v. City of Chicago, 156 Ill. 2d 33 (1993). In that dissent, Justice Bilandic postulated that the special duty doctrine was not, in fact, an exception to the statutory immunities set forth in the Tort Immunity Act. Leone, 156 Ill. 2d at 47-48 (Bilandic, J., dissenting). Until today, however, the law in Illinois was to the contrary. The rule was that where the special duty doctrine applied, it enabled a plaintiff to escape the statutory immunities granted by the General Assembly to municipalities and their employees. Doe v. Calumet City, 161 Ill. 2d 374, 390 (1994).
In Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 507 (1990), this court held that “the tort liability of a municipality *** is expressly controlled by constitutional provision and legislative prerogative as embodied in the Tort Immunity Act.” I continue to adhere to that view. Accordingly, I am in complete agreement with the proposition that under section 4 of article XIII of our state’s constitution, it is the function of the General Assembly and not the courts to define when and under what circumstances sovereign immunity applies.
This construction of the law does not, however, command the conclusion that the special duty exception has been supplanted by statute. To the contrary, I believe that the General Assembly has recognized the continued viability of the doctrine and understands it as having been incorporated into the statutory scheme contained in the Tort Immunity Act.
The special duty exception to sovereign immunity is a well-established doctrine that has been consistently recognized by our court and by the appellate court in the decades following promulgation of the Tort Immunity Act and the subsequent ratification of the Illinois Constitution of 1970. Most of the decisions of our court discussing the exception have been cited earlier in this disposition or by the majority. The appellate court cases invoking the doctrine are too numerous to cite.
The General Assembly is presumed to know the construction the courts have placed upon a statute (In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 388 (1992)) and is therefore presumed to know of the courts’ continued recognition of the special duty doctrine as an exception to the immunities set forth in the Tort Immunity Act. If the General Assembly believed that the special duty exception was inconsistent with the Act and constituted an improper encroachment upon its authority for defining the terms of sovereign immunity, it could have revised the statute to abolish the doctrine. It has not done so. The Tort Immunity Act has been amended on several occasions since it was originally enacted (see, e.g., 745 ILCS 10/2 — 202, Historical & Statutory Notes, at 806 (Smith-Hurd 1993); 745 ILCS 10/2 — 210, Historical & Statutory Notes, at 199 (SmithHurd Supp. 1997); 745 ILCS 10/4 — 105, Historical & Statutory Notes, at 868 (Smith-Hurd 1993)), but none of those amendments have limited or altered the special duty exception in any way.
Under these circumstances, I believe that the General Assembly has acquiesced in the view that the statutory immunities set forth in the Tort Immunity Act remain subject to the special duty exception. See Charles v. Seigfried, 165 Ill. 2d 482, 492 (1995). The courts’ explication of the law has, in effect, become part of the statute. People v. Drakeford, 139 Ill. 2d 206, 215 (1990). For us to depart from that position is tantamount to amending the statute. The power to make such amendments, however, lies with the legislature, not the courts. Independent Voters v. Illinois Commerce Comm’n, 117 Ill. 2d 90, 100 (1987). The majority is therefore wrong to abruptly overrule the decades of precedent on the subject. As Justice Nickels aptly observes in his special concurrence, the majority’s actions are an affront to principles of stare decisis. But then, what is new? People v. Burgess, 176 Ill. 2d 289, 324-26 (1997) (Harrison, J., dissenting).
Finally, I note that there is some unintentional irony in the majority’s decision. In treating the fire marshal’s bad judgment as a matter of municipal policy, the majority no doubt hopes to farther its agenda of protecting the government from liability. Its decision may, however, have just the opposite effect. By adopting an expansive definition of what constitutes municipal policy, the majority’s opinion may inadvertently have just made it easier for plaintiffs to proceed against municipalities under 42 U.S.C. § 1983 (1982), to which state immunity statutes, including the Tort Immunity Act, provide no defense (see Weiss v. Village of Downers Grove, 225 Ill. App. 3d 466, 469 (1992); Anderson v. Village of Forest Park, 238 Ill. App. 3d 83, 92 (1992)).
Under 42 U.S.C. § 1983 (1982), municipal liability for constitutional violations is conditioned on a showing that the violations were caused by an official policy, custom or usage of the municipality. Doe v. Calumet City, 161 Ill. 2d at 401-02. Establishing that a constitutional violation resulted from official policy has historically been one of the most serious obstacles confronting plaintiffs seeking to recover from municipalities under the statute. With today’s broadened definition of what constitutes official policy, that hurdle has been lowered substantially. While that will not aid the plaintiff in this case, who has claimed no constitutional violation, I can see that it may be of considerable usefulness to others in cases to come.