Making an Injury Claim Against the Government in Illinois

Chances are you found your way here because you were injured in Illinois by the government, or by a government officer or employee. Maybe you tripped and fell on a city or county sidewalk. Or a state-employed driver carelessly ran a red light and hit you. You're thinking about a claim or a personal injury lawsuit, but you're unsure about Illinois law.

Doesn't the government get special protection from lawsuits? Am I allowed to sue Illinois? Do I need to follow special rules or procedures? If I win, how much can I collect?

We answer those questions and more, after starting with an overview of injury claims against the government. From there, we'll zoom in on Illinois law.

An Overview of Personal Injury Claims Against the Government

Under even the best of circumstances, a lawsuit is likely to be costly, time-consuming, and frustrating. That's especially true when you're suing the government. You'll be up against a mind-numbing array of rules, procedures, and limitations, all seemingly designed to make your task more stressful and unpleasant.

Issues to Watch For

When you file a personal injury claim against the government or its employees, expect to face these issues—and possibly others.

Government immunities. No hurdle is bigger or more difficult to overcome than government immunities. Immunities are an ad hoc collection of rules crafted by courts and legislatures to make sure the government and its employees don't have to answer for harms they cause. There are different kinds of immunities, and each works a bit differently than the others. The details are far less important than what an immunity can mean for your case.

When an immunity applies, it's a stone-cold claim killer. Think of an immunity as an impenetrable shield, protecting the immunized government or employee from liability. No matter how serious your injuries or how blameworthy the defendant (the party you're suing) might be, you're simply out of luck. Try to file a lawsuit and, barring an exception to the immunity, the court will have no choice but to dismiss it.

Deadlines and statutes of limitations. When your claim is against the government, be prepared to act quickly. Special deadlines, including lawsuit-filing deadlines called statutes of limitations, might require that you act within just a few months, even before you have all the necessary facts. Why the need for speed? Much like immunities, these quick deadlines and statutes of limitations are meant to kill injury claims before they become claims.

Special processes and procedures. Immunities and short deadlines are only half the story. When you're suing the government, expect to encounter processes and procedures you won't face in other cases. A few states, for example, have created special courts or tribunals to handle claims against the government. Nearly all states require that before you file a lawsuit in court, you first must send the government written notice of your claim or your intent to sue.

Do these features speed up government injury claims, or move them more efficiently to resolution? Not really. What purpose do they serve? The notice requirement, in particular, often catches injured parties off guard. They don't send the required notice, which far more often than not—no surprise here—ends their claim before it gets started.

Limits on damages you can collect. States commonly put limits, sometimes called "caps," on the damages you're allowed to collect from the government. No matter how serious your injuries or how disabling they might be, you're not allowed to collect more than the cap amount as compensation. Some caps are just a few hundred thousand dollars, an insultingly low figure if your injuries are serious or catastrophic.

Start With Your State Tort Claims Act

When you're analyzing a potential injury claim against the government, start with your state's "tort claims act" or similar law. These laws typically set the ground rules—what you can (and can't) sue for, special deadlines and procedures, and damage caps—for injury claims against the state.

Sometimes, the same law details the rules for claims against local governments, too. Other states deal with local government claims in separate statutes.

Illinois Government Injury Claims—The Statutory Scheme

Injury claims against the government in Illinois—state or local—are regulated by statute. Claims against Illinois are controlled by the Illinois Court of Claims Act, Illinois' version of a tort claims act. The Court of Claims Act describes, in general terms, the kinds of claims that can be brought against Illinois. It also sets claim and lawsuit deadlines, explains when a notice of claim must be filed, and caps damages against the state.

A different law controls claims against Illinois' local governments. The Local Governmental and Governmental Employees Tort Immunities Act (the Tort Immunities Act) takes a different approach from that of the Court of Claims Act. Instead of describing claims that are permitted, the Tort Immunities Act details the kinds of claims that are prohibited.

Injury Claims Against Illinois—The Illinois Court of Claims Act

The Illinois State Lawsuit Immunity Act, at 745 Ill. Comp. Stat. § 5/1 (2024), says that except as provided in (among other laws) the Court of Claims Act, "the State of Illinois shall not be made a defendant or party in any court." What does this mean? It means that Illinois is immune from suit unless the Court of Claims Act (or one of several other state laws) says otherwise.

The Court of Claims Act applies not only to claims against Illinois, but to claims against a wide range of state agencies, commissions, departments, and public universities. Suppose, for instance, that you were injured on property belonging to the University of Illinois. The Court of Claims Act governs your case.

The court clerk has compiled the Court of Claims statutes and court rules (including the rules of practice and procedure) into a helpful electronic booklet.

Personal Injury Claims Are Allowed

The Court of Claims Act lists several kinds of claims that can be brought against Illinois. 705 Ill. Comp. Stat. § 505/8(d) (2024) allows tort claims—which includes personal injury claims—"if a like [claim] would [be allowed] against a private person or corporation in a civil suit... ." The Court of Claims is the only Illinois court authorized to hear personal injury cases brought against Illinois.

What are some of the most common injury claims? Here are a few examples.

• Car accidents. Whether caused by a dangerous condition on a poorly maintained road or a negligent government employee driver, car wrecks are a frequent source of government injury claims.
• Premises liability. When a dangerous condition on government property causes slip-and-fall or similar injuries, and those in charge of the property were on proper notice of the problem, premises liability claims often result.
• Medical malpractice. When a government doctor's negligence injures you, the Court of Claims Act lets you sue Illinois.
• Other negligence claims. The Court of Claims Act allows other claims grounded in negligence—a failure to act with reasonable care under the circumstances.

When a Notice of Claim Is Required

Within one year from the date you were injured, you must file a written notice of claim with both the Illinois Attorney General and the Clerk of the Court of Claims. The notice must include:

• the name of the person who has the claim
• the name of the injured person
• the date and approximate time of the injury
• the place where it happened
• a brief description of how you were injured, and
• the name and address of your treating physician.

The court provides a claim form you can use.

A similar notice is required in wrongful death cases. But no notice is required if you file your lawsuit (the Court of Claims Act calls it a "claim") within one year from the date of injury or death.

(705 Ill. Comp. Stat. § 505/22-1 (2024).)

Note, importantly, that filing a notice of claim isn't the same as filing a lawsuit. That is, filing a notice of claim doesn't mean your case will be heard by the Court of Claims. For that to happen, you must timely file (see discussion below) your lawsuit.

Consequences of Failing to Provide Notice

Under 705 Ill. Comp. Stat. § 505/22-2 (2024), failing to provide a required written notice likely means the end of your claim. If you sue Illinois without having provided notice:

• the court must dismiss your case, and
• in most cases, you'll be "forever barred from further action in the Court of Claims for such personal injury... ."

Lawsuit Filing Deadlines

The Court of Claims Act sets lawsuit filing deadlines—called statutes of limitations—for cases filed against Illinois. As a general rule, personal injury claims must be filed in the Court of Claims within two years, usually from the date you were hurt. Minors (younger than 18 years old) and legally disabled persons get more time. (705 Ill. Comp. Stat. § 505/22(h) (2024).)

As with other Court of Claims Act requirements, missing the statute of limitations is likely to be a costly mistake. Once the statute of limitations runs out, your claim is legally dead. File a lawsuit after the deadline and the court will dismiss it as untimely. The government won't negotiate a settlement with you either because as far as Illinois is concerned, you don't have a claim to settle.

Personal Injury Damages Are Capped

Finally, the Court of Claims Act caps the personal injury damages you can be awarded in a claim against Illinois. Total damages are limited to $2 million per claimant. This cap doesn't apply when your injuries are caused by an employee negligently driving a vehicle owned, controlled, or leased by Illinois.

By state damage limit standards, Illinois' $2 million cap is fairly generous. It should cover damages in all but the most severe or catastrophic injury cases.

Filing a Claim Against a Local Government in Illinois

As mentioned above, claims against local Illinois governments and their employees are regulated by the Tort Immunities Act. This law is concerned, for the most part, with government and government employee immunities—claims that are prohibited. For example, here are lists of prohibited claims directed at government entities and their employees:

• 745 Ill. Comp. Stat. 10, art. II, pt. 1 (2024), captioned "Immunity of Local Public Entities," and
• 745 Ill. Comp. Stat. 10, art. II, pt. 2 (2024), captioned "Immunity of Local Public Employees."

Other immunized claims are detailed elsewhere in the Tort Immunities Act.

There's no special court like the Court of Claims for local government claims. When you're ready, you can file your lawsuit in the appropriate Illinois Circuit Court. (Learn more about Illinois' personal injury laws.)

Allowed Claims and the Standard of Proof

So, what claims does the Tort Immunities Act allow? Generally speaking, the same kinds of claims that are frequently brought against Illinois—car accidents, dangerous premises, and malpractice claims—top the list for local Illinois governments, too.

Here's another sticking point for local government claims. While some claims require only a showing of negligence, or carelessness, others demand a higher level of blameworthiness called "willful and wanton misconduct." The Tort Immunities Act defines this as "a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others... ." (745 Ill. Comp. Stat. § 10/1-210 (2024).)

Statutes of Limitations for Local Government Claims

With one important exception, the statute of limitations on most local government injury claims is one year, typically from the date you were injured. (745 Ill. Comp. Stat. § 10/8-101(a) (2024).)

The exception? Medical malpractice claims. You must file your medical malpractice claim within:

• two years from the date you knew or should have known you were injured, but
• not later than four years from the date of the malpractice.

(745 Ill. Comp. Stat. § 10/8-101(b) (2024).)

Different Laws Might Apply to Other Kinds of Claims

The laws we've covered aren't all the Illinois rules concerning claims against the government. For example, if you were injured by a dangerous road or highway under the control of a local government and you're considering a claim against the county engineer, you'll need to be familiar with the County Engineer and Highway Superintendent Liability Act. When your claim is against a public school, spend some time getting acquainted with the Tort Liability of Schools Act.

Get Help With Your Illinois Government Injury Claim

Illinois' government injury claim rules are exceptionally complex, detailed, and at times, difficult to understand. If you're not familiar with those rules, don't make the mistake of trying to handle your government injury claim alone. The lawyers representing the government are experts who spend much of their time defending claims like yours. They know the law. More importantly, they know how to use the law against you.

You need to have an expert government claims lawyer in your corner. Without that help, you stand little chance of a successful outcome. When you're ready to move ahead with your claim, here's how to find an attorney near you.