The Illinois Tort Immunity Act shields local governments and employees of government agencies from liability for ordinary negligence committed in the course of their duties. But the shield is not a blank check for wrongdoing. Government agencies and their employees can be held liable for any act or omission that constitutes willful and wanton misconduct. The death of 5-year-old Michael Langford, Jr., in May raises the issue of willful and wanton misconduct in a very compelling way.
On Mother’s Day 2010, Kathie LaFond worked a double shift, getting off of work at approximately 11:45. After leaving work, she went home and went to bed. Sometime thereafter, she received a call from friends of her boyfriend Cecil Conner. Those friends asked that Ms. LaFond come to pick Cecil Conner up because he was heavily intoxicated and needed to be taken home. Ms. LaFond got dressed and drove to pick up Mr. Conner. She placed her five year old son, Michael Langford Jr., in his car seat and drove to pick Mr. Conner up from the party.
After picking up Mr. Conner from the party, Ms. LaFond was in the process of driving to Mr. Conner’s house when a Chicago Heights’ Police Officer pulled her over for failing to use a turn signal. That officer then asked for her license, which she was unable to produce. The officer called his dispatcher and discovered that Ms. LaFond’s driver’s license was suspended. The officer then came back to the car and placed Ms. LaFond under arrest.
Instantly, Ms. LaFond pleaded with the office to allow her to take her baby home, as he was still sleeping in the back seat. She also told the officer that she was the designated driver and that Mr. Conner was intoxicated. The Chicago Police officer refused her request and told her that her baby would be fine. He then placed Ms. LaFond in his squad car and gave custody and control of the vehicle she was driving to Mr. Conner.
Approximately 35 minutes later, Mr. Conner crashed the car containing Michael Langford, Jr. into a tree. The impact broke Michael’s neck, which killed him. This accident occurred in Steger, Illinois, which is adjacent to Chicago Heights. Immediately, the police in Steger noticed that Mr. Conner had slurred speech and an odor of alcohol on his person.
A blood-alcohol test showed Conner’s level to be .208 – more than twice the legal limit – and he may also have been using marijuana. Authorities have charged him with multiple counts of driving under the influence of alcohol or drugs.
A lawsuit brought by the Horwitz Law Group on behalf of Kathie LaFond alleges that Chicago Heights police failed to take proper steps to protect Michael Langford. Instead of impounding the car and taking the helpless 5-year-old boy into protective custody, the police officer allegedly ordered a drunken passenger to drive the boy home. Chicago Heights claims that Kathie LaFond gave verbal permission for police to leave the child with Cecil Conner. But whether such permission was actually given is very much in dispute.
Chicago Heights has filed a motion to dismiss LaFond’s lawsuit, based on the Illinois Local Government and Governmental Employees Tort Immunity Act. The Tort Immunity Act protects government agencies and their employees from liability for actions taken in their official capacity, as long as those actions were not corrupt or malicious, or showed willful and wanton disregard for human life.
In the Langford case, the police officer made a decision with fatal consequences. He decided to not take Michael Langford into protective custody or provide an escort home after his mother’s arrest, but instead to give the car keys to a passenger who may have been visibly intoxicated. The city argues that this was a valid exercise of official discretion, because police officers need to make quick decisions on the spot. They have to be available to respond to the numerous public safety concerns that arise in a large urban area. More specifically, the city argues that the passenger to whom its police officer entrusted the car was not visibly intoxicated.
Willful and Wanton Misconduct
The counterargument is clear. If the person to whom the officer entrusted the car was visibly intoxicated, it was not a valid exercise of discretion to order that person to drive the car home with a sleeping 5-year-old child strapped in the back seat. Such conduct, LaFond’s lawsuit argues, amounts to willful and wanton disregard for human life. This provides an exception to the protections law enforcement officers and agencies normally receive under the Tort Immunity Act.
The courts have made clear that the immunity protection given to government agencies and employees is not unlimited. Indeed, the courts have said that the Tort Immunity Act must be strictly construed, because it is an exception to the broad protections that the common law generally provides for injured people to hold wrongdoers accountable.
In the Langford case, the burden of proof is therefore on Chicago Heights to show that its police officer exercised proper discretion in letting a passenger drive a child home after his mother’s arrest. In legal terms, this is called an affirmative defense.
“Willful and wanton” misconduct is not merely a good-faith mistake. It involves a reckless disregard for the rights of another – in this case, arguably, disregard by the police officer for the safety of Michael Langford, Jr., the 5-year-old in the back seat. The court will rule soon on whether the wrongful death case brought by his mother against Chicago Heights may go forward.