Is a Fire Marshal Entitled to Discretionary Immunity During the Course of a Fire Drill ?

In Harineck v. 161 N. Clark Street Ltd P'ship, 181 Ill. 2d 335, 341, 692 N.E.2d 1177, 230 Ill. Dec. 11 (1998), the plaintiff alleged that she suffered injuries resulting from the fire marshal's negligent conduct during the course of a fire drill. 181 Ill. 2d at 338. During the fire drill, the marshal directed an entire floor of people, including the plaintiff, to stand in the vicinity of a heavy, windowless door in a crowded elevator area, where more people were placed than the area could hold. Harineck, 161 Ill. 2d at 338. When the door was suddenly pushed opened, it struck and injured the plaintiff's head causing serious injury. Harineck, 161 Ill. 2d at 338. The supreme court affirmed the trial court's dismissal of the plaintiff's complaint on the grounds that the fire marshal was entitled to discretionary immunity under section 2-201 of the Act. Harineck, 161 Ill. 2d at 343. the court reasoned that the fire marshal was in a position involving the determination of policy because he "bears sole and final responsibility for planning and executing fire drills in buildings throughout Chicago" and that he both determined policy and exercised discretion in the course of the fire drill at issue in the complaint. Harineck, 161 Ill. 2d at 343. Justice Garman proposed the following framework for explaining the court's reasoning in Harineck: "First, we should ask: Where does the official whose action is challenged stand in the relevant hierarchy of decisionmakers? Did he bear the sole and final responsibility for the decision in question, or was his decision to act as he did subject to review and approval by others? the higher the official stood in the relevant chain of command, the more likely it is that he acted with discretion for the purposes of section 2-201." Van Meter v. Darien Park District, 207 Ill. 2d 359, 392, 799 N.E.2d 273, 278 Ill. Dec. 555 (2003) (Garman, J., dissenting).