Chavez v. Village of Kirkland, 2023 IL App (2d) 230009-U

Tort Immunity Act Protects Discretionary Decisions Made by Village TASER Instructor That Concurrently Involve Policy-Making Acts.

 When faced with certain legal claims, units of local government and its employees can assert a myriad of affirmative defensives arising under the Local Government and Governmental Employees Tort Immunity Act (“Tort Immunity Act”). 745 ILCS 10/2, et. seq. The Tort Immunity Act is exactly what the Village of Kirkland (“Village”) and its employee, Andrew Holmes (“Holmes”) raised in response to a complaint filed by Joseph Chavez (“Chavez” or “Plaintiff”).

TASER Training Gone Wrong

In this case, Chavez took part in a TASER training led by Holmes, the only certified TASER instructor in the Village, when a spotter was inadvertently exposed to the TASER charge and Chavez was dropped to a solid surface. An amended complaint alleged negligence in the following ways:

• Failure to conduct TASER training in a reasonably safe manner and in compliance with normative safety rules that considers participant health and well-being;
• Failure to supervise, monitor, and catch Plaintiff after being shot with the TASER;
• Failure to place mats or other surfaces to provide soft, padded surface rather than a solid surface to fall on;
• Failure to conduct TASER training in reasonably safe manner in consideration for participant safety.

Chavez v. Village of Kirkland, 2023 IL App (2d) 230009-U, ¶ 4.

Trial Court Rulings

At trial, both parties moved for a directed verdict. While the Village asserted that the Tort Immunity Act shielded the Village from liability because of discretionary immunity, the trial court disagreed and ruled in favor of Chavez.

The trial court found that Holmes did not use discretion in his role because he heavily utilized the TASER guidelines rather than making independent decisions using judgment and deliberation. Additionally, the trial court reasoned that the Chavez’s injuries did not result from Holmes’ discretionary or policy-making authority, which is required to assert discretionary immunity.

Village’s Tort Immunity Act Defenses

On appeal, the Village and Holmes re-asserted discretionary immunity under Sections 2-109 and 2-201 of the Tort Immunity Act. 745 ILCS 10/2-109, 2-201. Together, these sections “immunize public entities for the discretionary policymaking decisions of their employees.” Chavez, 2023 IL App (2d) 230009-U, at ¶ 20 (citing Monson v. City of Danville, 2018 IL 122486, ¶ 16).

Section 2-109 immunizes the public entity, or the Village, from injuries resulting from a situation where the employee is not liable. 745 ILCS 10/2-109.

Section 2-201 immunizes public employees from liability for injuries stemming from any acts or omissions in determining policy or exercising discretion.745 ILCS 10/2-201. This applies to both negligent and willful and wanton conduct. Strauss v. City of Chicago, 2022 IL 127149, ¶ 59 (citing Monson, 2018 IL 122486, ¶ 29).

Appellate Analysis: Does Holme’s Role Involve Discretionary Decisions or Policy Determinations?

To warrant Section 2-201 protection, the Village must meet two requirements. The first requirement is to demonstrate that the employee either determines policy or exercises discretion in the performance of their duties.

Employees engage in policy determination when they balance competing interests and decide which course of action serves those interests. Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill.2d 335, 342-43 (1998).

Discretionary acts are found with “the exercise of deliberation and judgment in deciding whether to perform a particular act or how and in what manner that act should be performed.” Richter v. College of Du Page, 2013 IL App (2d) 130095, ¶ 43. While discretionary acts are immunized, ministerial acts are not. Van Meter, 207 Ill.2d at 562 (stating ministerial acts are those performed in a prescribed manner, pursuant to a mandate of legal authority, and without reference to the official’s discretion as to the propriety of the act).

Here, Holmes serves as a certified TASER instructor and works part-time as a police officer for the Village. Chavez, 2023 IL App (2d) 230009-U, at ¶ 9. In this role, he reviews the Village’s TASER policies and conducts the TASER training sessions. For the training at issue, Holmes testified he chose the training location, decided to use alligator clips during the training, and used discretion to deviate from TASER guidelines.

The Village Chief of Police (“Chief”) also indicated he deferred to Holmes to determine where, and how to conduct the training. However, the Chief stated Holmes did not formulate police department policies or procedures.

Contrary to the trial court, the Appellate Court did not view Holmes’ use of the TASER guidelines as evidence of ministerial acts. Notably, the TASER guidelines do not have the mandate of legal authority, nor have they been adopted by any applicable statute or regulation.

During the actual classes, Holmes decides how many exposures to give, the equipment to use, where to place the exposures, and if the exposures would occur kneeling or standing. Id. at ¶ 23. Overall, these decisions culminated in discretionary decisions that Holmes, as the only TASER instructor in the Village, would make.

Was the Underlying Act a Use of Policy Determination and an Exercise of Discretion?

Now that the Appellate Court found that Holmes serves in a discretionary role, the second prong of Section 2-201 requires a determination of whether the act that resulted in Chavez’s injuries used both a determination of policy and an exercise of discretion. Id. at ¶ 25.

Here, Holmes’ discretionary decisions as the sole TASER instructor doubled as policy determinations. The decisions, including the location, placement of alligator clips, and other training-related matters, all involve weighing competing interests of safety, convenience, and learning objectives.

In rebuttal, Chavez argued these acts were not policy-related and relied on the Chief’s testimony that Holmes did not aid in crafting police department policies. However, the Appellate Court relied on the “very specific definition of policy making” in the Tort Immunity Act, rather than the Chief’s testimony. Id. at ¶ 27. Using the legal definition, Holmes engages in policy determination when he organizes, implements, and runs the TASER classes.

Additionally, the Appellate Court found that judgment calls were used in the decisions allegedly linked to Chavez’s injuries. Specifically, Holmes decided where to place the alligator clips that led to the inadvertent exposure of the spotter. Id. at ¶ 28. Holmes also had to weigh competing interests and exercise discretion in choosing whether to use mats during the training. Id. at ¶ 29.

Chavez also argued that Holmes was not protected by Section 2-201 because he was not in a “position of power,” but the Appellate Court declined to limit immunity to employees in “positions of power.” Id. at ¶ 30. This rationale was supported by the plain language of the Tort Immunity Act, which applies to public employees with nothing to distinguish between the amount of power held. 745 ILCS 10/2-201.

Conclusion

Overall, the Appellate Court determined that the trial court erred in ruling in favor of Plaintiff. Holmes, and thus the Village, were entitled to discretionary immunity as a matter of law. The jury verdict was reversed and the judgment entered in favor of the Village and Holmes.

Key Takeaways

This is a case that involves looking closely at the role of the employee. Here, discretionary acts doubled as policy determinations and ultimately led to protection for both the Village and employee. Some takeaways include:

• Employees, by virtue of their duties, may be engaged in policy making or discretionary acts, regardless of their job title.
• Decisions that weigh competing interests may also be policy determinations.
• Policy making is not limited to the prescribed rules and procedures of a local government unit.
• For discretionary immunity to apply, the employee must engage in both policy determination and discretionary decisions at the time the alleged injuries occur.

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