also dissenting:
This case deals with the claim of an injured female motorist whose legs were crushed between the bumpers of her car and the police car which had stopped her for a license plate violation. She seeks recovery from the policeman’s employer, the City of Chicago. The facts are that upon being pulled over and advised by the officer that her plates had expired, she expressed disbelief. The officer then suggested that if she did not believe it, she could get out and look for herself. In the process of doing just that, the police car was rear-ended by an errant motorist which pinned the unfortunate woman’s legs between the rear bumper of her car and the front bumper of the police car.
Following a jury trial against the City, the jury awarded the plaintiff $422,000, which was reduced by 25% for plaintiff’s contributory negligence. The net jury award and judgment amounted to $316,500. Neither the amount of the award nor the allocation of negligence is at issue in this appeal. What is at issue is the law applicable to the case. That is to say, does the doctrine of sovereign immunity shield the City from liability? And, does the special duty exception to sovereign immunity carve out an exception which will save the plaintiff’s verdict?
SOVEREIGN IMMUNITY
Our Illinois Constitution has abolished sovereign immunity “[ejxcept as the General Assembly may provide by law.” (Ill. Const. 1970, art. XIII, §4.) The Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) provides that municipalities are not liable for injury resulting from an act or omission in the execution or enforcement of any law “unless such act or omission constitutes willful and wanton conduct.” 745 ILCS 10/2-109, 2-202 (West 1992).
SPECIAL DUTY EXCEPTION
In derogation of the Tort Immunity Act, the courts have carved out a common law exception which is styled the special duty exception. The effect of this exception is to render municipalities liable for ordinary negligence where four elements are present, namely: (1) the municipality is uniquely aware of the particular danger or risk to which plaintiff is exposed; (2) there are specific negligent acts or omissions on the part of the municipality; (3) the specific acts or omissions 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 (1990), 139 Ill. 2d 501, 508.
THE MAJORITY OPINION
The majority opinion, in affirming the judgment against the City, declines to consider the City’s argument that the special duty exception is a usurpation of the Illinois Constitution and the Tort Immunity Act which was passed in pursuance thereof because the constitutional argument v/as first raised on appeal. Next, the majority concludes that the four elements of the special duty exception were met.
ANALYSIS
Contrary to the assertion of the majority, this court is not bound to disregard a constitutional issue simply because it was not raised at the trial level. When the interests of justice require it, we can and should consider any issue that is germane to the case whether or not it was argued below or presented at all. This is, after all, the Supreme Court of Illinois. As such, we are the ultimate and final arbiters of the law of this State. We are not obliged to overlook the Illinois Constitution, which is the supreme law in this State, merely because a litigant may have failed to assert it below. This case presents an appropriate opportunity to scrutinize and settle an issue of constitutional dimension that affects every municipal government in Illinois.
Several additional observations áre in order. First, any caring person must feel some degree of sympathy for the injured plaintiff and hope that there would be some mechanism to give her compensation. Second, there is no legal liability on the part of the policeman or the City of Chicago.
There is no liability because sovereign immunity bars it; because the courts cannot, by expounding a so-called special duty exception, legitimately override the Illinois Constitution and Acts passed in pursuance thereof; and finally, because even if the special duty exception were to be applied, it does not fit the facts of this case.
The first element of the special duty exception was not met since there was no unique awareness of the particular danger of standing between two stopped cars along the shoulder of a busy highway. Such awareness should be expected of any person using the highway. The fourth element of immediate control was not met since the police officer did not order the woman to place herself between the two cars. He simply told her she could check the license plate herself if she wanted to. She had no obligation to do so.
While the majority opinion does not expressly acknowledge it, its decision represents an attempt to do equity to an injured plaintiff in the face of law which clearly bars recovery. Although the individual plaintiff in the instant case is benefitted by this decision, that benefit is imposed at the defendant’s cost. And more ominously, the general law applicable to future cases has been rendered incoherent. Moreover, the holding has exceeded this court’s legitimate authority by overturning sub silentio a constitutionally authorized legislative act mandating the doctrine of sovereign immunity as applied to Illinois municipalities.
The current trend in tort law seems to be developing into a two-step process. The first step is to determine whether someone has been injured. The second step is to determine who should pay for the injury. The second step, as in the case at hand, often requires credulity as to the facts and a careless regard for the application of the law. The majority opinion here is consistent with that process.
In fairness, it must be noted that this trend did not begin with the instant case. There is ample precedent for it. In fact, the entire special use doctrine is a judicial effort to evade a law that judges do not like. That is to say, it represents a judicial attempt to whittle away at and, in a broader sense, to overthrow the doctrine of sovereign immunity.
If I may inject a personal note, I do not like the doctrine of sovereign immunity. It was unfair and antisocial dogma in its inception and it remains so today. Citizens should have recourse against government units for acts of ordinary negligence. Private corporations may be sued for ordinary negligence. Private citizens may likewise be sued. Municipal corporations should be subject to the same liabilities. Municipalities can either carry insurance or decide to bear the risk of being self-insurers. In either case they are in a superior position to bear the risk of negligent acts than is the hapless plaintiff who may be injured, maimed or killed by those negligent acts. My dissent in the case at hand is not because I lack sympathy for the injured plaintiff nor because I like the doctrine of sovereign immunity. Rather, I dissent because I believe that this court has a duty to follow the law and to apply it in a coherent and consistent manner. Failure to do so is productive of anarchy and chaos. There is a mechanism to change the law. In the case at hand, the Illinois General Assembly has the constitutional authority to do so. I would prefer that it would. Until that day, however, I regard it as an evil for this or any other court to disregard the law and to misinterpret the facts in an effort to reach what may be regarded as a fair or equitable result in a particular case.
For the reasons given, I respectfully dissent.