Alexander v. Consumers Illinois

9 Citing cases

  1. Desmet v. County of Rock Island

    219 Ill. 2d 497 (Ill. 2006)   Cited 118 times
    Noting that the rule has been applied "in various contexts" (citing Sims-Hearn v. Office of the Medical Examiner , 359 Ill. App. 3d 439, 443-46, 295 Ill.Dec. 924, 834 N.E.2d 505, and Alexander v. Consumers Illinois Water Co. , 358 Ill. App. 3d 774, 298 Ill.Dec. 70, 838 N.E.2d 963 )

    Assuming the continued viability of the public duty rule, defendants in this case assert, inter alia, that they owed no duty to Hays, so the issue of immunity is never reached. While Zimmerman and subsequent cases continue to reference and apply the public duty rule in various contexts (see Sims-Hearn v. Office of the Medical Examiner, 359 Ill. App. 3d 439, 443-46 (2005); Alexander v. Consumers Illinois Water Co., 358 Ill. App. 3d 774 (2005)), in the context of police protection services, this court's comments lend support to plaintiff's contention that the public duty rule has been codified in section 4-102 of the Tort Immunity Act — as an immunity. Indeed, this court apparently acknowledged as much in Aikens v. Morris, 145 Ill. 2d 273 (1991), when it referred to "the common law blanket immunity, codified in section 4-102, which immunizes a municipality and its employees for the failure to provide police protection."

  2. Tzakis v. Berger Excavating Contractors, Inc.

    2019 Ill. App. 170859 (Ill. App. Ct. 2019)   Cited 10 times

    Zimmerman , 183 Ill. 2d at 32, 231 Ill.Dec. 914, 697 N.E.2d 699. Courts have applied this rule to a variety of "governmental services." See DeSmet v. County of Rock Island , 219 Ill. 2d 497, 508, 302 Ill.Dec. 466, 848 N.E.2d 1030 (2006) (noting that the rule has been applied "in various contexts" (citing Sims-Hearn v. Office of the Medical Examiner , 359 Ill. App. 3d 439, 443-46, 295 Ill.Dec. 924, 834 N.E.2d 505 (2005), and Alexander v. Consumers Illinois Water Co. , 358 Ill. App. 3d 774, 298 Ill.Dec. 70, 838 N.E.2d 963 (2005) )). For instance, the public duty rule has been applied to bar liability for "a general duty to the public to prevent * * * sewer back-ups" ( Alexander , 358 Ill. App. 3d at 779, 298 Ill.Dec. 70, 838 N.E.2d 963 ), for performance of autopsies ( Sims-Hearn , 359 Ill. App. 3d at 445, 295 Ill.Dec. 924, 834 N.E.2d 505 ), for administration of a 911 emergency telephone system ( Donovan v. Village of Ohio , 397 Ill. App. 3d 844, 850, 337 Ill.Dec. 100, 921 N.E.2d 1238 (2010) ), for failure to administer a vaccine ( Taylor v. Bi-County Health Department , 2011 IL App (5th) 090475, ¶ 36), 353 Ill.Dec. 857, 956 N.E.2d 985, and for failure to properly inspect a porch that subsequently collapsed ( Ware v. City of Chicago , 375 Ill. App. 3d 574, 581, 314 Ill.Dec. 14, 873 N.E.2d 944 (2007) ).

  3. Donath v. Vill. of Plainfield

    2020 Ill. App. 3d 190762 (Ill. App. Ct. 2020)   Cited 1 times

    However, our court has found, in the context of the Tort Immunity Act, "an affirmative defense is not waived, despite the fact that it was not raised in an answer to a complaint, if the defense is subsequently raised without objection in a motion for summary judgment." Alexander v. Consumers Illinois Water Co., 358 Ill. App. 3d 774, 780 (2005); accord Hanley, 343 Ill. App. 3d at 53-54. This authority applies here since plaintiff has never objected to the Village's decision to raise section 3-106 for the first time in a motion for summary judgment.

  4. Coleman v. E. Joliet Fire Prot. Dist.

    2013 Ill. App. 3d 120583 (Ill. App. Ct. 2014)

    The "special duty" exception is the only recognized exception to the public duty rule. Harinek, 181 Ill. 2d at 345-46; Alexander v. Consumers Illinois Water Co., 358 Ill. App. 3d 774, 779 (2005). The exception applies where a public entity assumes a "special duty to a particular individual" (Harinek, 181 Ill. 2d at 346), such as when the public entity "steps outside its governmental function and acts in a private capacity or develops a relationship with the plaintiff" (Alexander, 358 Ill. App. 3d at 779).

  5. Tzakis v. Me. Twp.

    2020 IL 125017 (Ill. 2020)   Cited 5 times

    To the extent that plaintiffs allege that defendants failed to provide adequate public services in the design, maintenance, improvement, and/or operation of the stormwater system here, that duty ran to the public at large and not to individual members of the public such as plaintiffs. See Alexander v. Consumer Illinois Water Co., 358 Ill. App. 3d 774, 779 (2005) (holding that summary judgment for the defendant village was proper on the plaintiffs' claims for sewer backup damages because even if the village owed a general duty to the public to prevent sewer backups, the public duty rule barred legal liability to individual members of the public); Town of Cicero v. Metropolitan Water Reclamation District of Greater Chicago, 2012 IL App (1st) 112164, ¶ 41 n.4. (affirming the dismissal of the complaint on other grounds but noting that the public duty rule would appear to bar claims against the District based on flooding and sewer backup damage because a public entity may not be held liable for its failure to provide adequate governmental services); Remet Corp. v. City of Chicago, 509 F.3d 816, 820 (7th Cir. 2007) (holding that, under the public duty rule, the city had no duty to provide uninterrupted water service for fire protection). For these reasons, we find the trial court properly held that the public duty rule applied to the allegations

  6. Huntsville v. Stove House 5

    3 So. 3d 186 (Ala. 2008)   Cited 6 times
    Holding that the judgment of the trial court could not be reversed on the ground that a case relied upon by the trial court was distinguishable because the appellant had not argued in the trial court that the case was distinguishable

    The purpose of Rule 8(c) of the Federal Rules of Civil Procedure is to give the opposing party notice of the affirmative defense and a chance to respond." (internal citation omitted)); Alexander v. Consumers Illinois Water Co., 358 Ill.App.3d 774, 780, 838 N.E.2d 963, 968, 298 Ill.Dec. 70, 76 (2005) ("an affirmative defense is not waived, despite the fact that it was not raised in an answer to a complaint, if the defense is subsequently raised without objection in a motion for summary judgment"). As an alternative basis for summary judgment, Stove House contended that Huntsville had agreed in 1956 to provide city services to the tax islands and that that agreement still exists.

  7. Deutsche Bank Nat'l Tr. Co. v. Ravitz

    2019 Ill. App. 181030 (Ill. App. Ct. 2019)

    However, an affirmative 8 defense is not forfeited, even though it was not raised in an answer to a complaint, "if the defense is subsequently raised without objection in a motion for summary judgment." Id. at 376 (citing Alexander v. Consumers Illinois Water Co., 358 Ill. App. 3d 774, 780 (2005)). Here, Deutsche objected to Ravitz's argument both in its reply to Ravitz's response to its motion for summary judgment as well as during the hearing on the motion.

  8. Arezina v. City of Elmhurst

    2013 Ill. App. 2d 120572 (Ill. App. Ct. 2013)

    Nonetheless, since that case, courts have continued to recognize that under the public duty rule a governmental entity generally owes no duty to provide an individual citizen with specific municipal services. See Green v. Chicago Board of Education, 407 Ill. App. 3d 721, 726 (2011); Hess v. Flores, 408 Ill. App. 3d 631, 644 (2011); Taylor v. Bi-County Health Dept., 2011 IL App (5th) 090475, ¶ 36 (under the public duty rule, a county health department did not owe any individual duty to require that a child be provided with a specific vaccine); Ware v. City of Chicago, 375 Ill. App. 3d 574, 581 (2007) (the City of Chicago did not owe the plaintiffs an individual duty to protect them from a porch collapse); Sims-Hearn v. Office of the Medical Examiner, 359 Ill. App. 3d 439, 444 (2005) (office of the medical examiner did not owe a duty of care to individual citizens to perform customary duties such as autopsies). ¶ 20 In Alexander v. Consumers Illinois Water Co., 358 Ill. App. 3d 774, 777 (2005), the plaintiff homeowners filed claims against the Village of University Park (Village) and Consumers Illinois Water Co. (Consumers) seeking damages for sewer backups into their homes. Consumers, who owned and operated the sewer lines in the Village, filed a counterclaim against the Village for contribution.

  9. Cordeck Sales v. Construction Systems

    382 Ill. App. 3d 334 (Ill. App. Ct. 2008)   Cited 68 times
    Finding that an overstatement in a mechanic's lien claim did not constitute constructive fraud because aside from the lien claim itself there was no other evidence from which fraudulent intent could be inferred

    However, "an affirmative defense is not waived, despite the fact that it was not raised in an answer to a complaint, if the defense is subsequently raised without objection in a motion for summary judgment." Alexander v. Consumers Illinois Water Co., 358 Ill. App. 3d 774, 780 (2005). In this case, Inland objected to First Midwest's lien waiver defense, filing a response to Inland's motion to amend its answer to include that defense.