DeSmet v. County of Rock Island ( 2006 )

Docket No. 100261.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
MARY L. DeSMET, as Personal Representative of the Estate
of Doris F. Hays, Deceased, Appellant, v. THE COUNTY OF
ROCK ISLAND, Illinois, et al., Appellees.
Opinion filed April 20, 2006.
JUSTICE KARMEIER delivered the judgment of the court,
with opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald,
Kilbride and Garman concurred in the judgment and opinion.
Justice McMorrow dissented, with opinion.
OPINION
The plaintiff, Mary L. DeSmet, as personal representative of
the estate of the decedent, Doris F. Hays (Hays), filed a
multicount complaint in the circuit court of Rock Island County
naming several local governmental entities, and their various
employees, parties defendant. Plaintiff=s complaint alleged that
each violated a duty to the plaintiff=s decedent and was liable to
plaintiff pursuant to the provisions of the Survival Act (755 ILCS
5/27B6 (West 2002)) and the Wrongful Death Act (740 ILCS
180/0.01 et seq. (West 2002)). All defendants moved to
dismiss, arguing that they owed no duty to Hays and they
were, in any event, immune under the Local Governmental and
Governmental Employees Tort Immunity Act (Act) (745 ILCS
10/1B101 et seq. (West 2002)). Although the defendants raised
the applicability of several sections of the Act, all specifically
argued they were immune from liability under the provisions of
section 4B102 of the Act (745 ILCS 10/4B102 (West 2002)).
After a hearing, the circuit court dismissed plaintiff=s complaint
with prejudice, ruling that section 4B102 immunity applied.
Plaintiff timely filed notice of appeal, and the appellate court
affirmed. No. 3B03B0964 (unpublished order under Supreme
Court Rule 23). We granted the plaintiff=s petition for leave to
appeal (177 Ill. 2d R. 315), and now affirm the judgment of the
appellate court.
BACKGROUND
The record, for purposes of the motions to dismiss, 1 reflects
that on April 5, 2002, Doris Hays was driving her vehicle on
U.S. Route 150 in rural Rock Island County when it left the
1
For purposes of clarification, we note that the facts set forth herein are
taken from plaintiff=s first amended complaint and a transcript of
interagency calls published in a newspaper article that plaintiff attached as
an exhibit to her response to defendants= motions to dismiss. The article
itself acknowledges that the Atranscript does not precisely reflect the audio-
taped version of the calls.@ One of the defendants, in reply to plaintiff=s
response, refused to concede the accuracy of the transcript, and another
argued that the exhibit should be stricken; however, both stated they were
willing to assume its accuracy for purposes of the motions to dismiss. We
will do so as well.
road and ran into a ditch. A passing motorist witnessed the
vehicle=s departure from the roadway and used her cell phone
to report her observation to Lori Sampson, clerk of the Village
of Orion. After Sampson received that telephone call, she
phoned Christine Wrigley, the dispatcher for Henry County.
Sampson told Wrigley that she had received a call from a
motorist who said she had witnessed a vehicle traveling at a
high rate of speed go off Route 150 in Rock Island County, just
over the Henry County/Rock Island County line. Wrigley asked
Sampson: AOkay, did they wreck?@ Sampson replied that the
caller Asaid she believed they had to of because they were
traveling at such a high rate of speed.@ Sampson noted that the
caller had not stopped to verify that the vehicle had wrecked,
stating, AShe continued on her way.@ Sampson told Wrigley that
she did not have a vehicle description; however, she described
the area that the caller had referred to as just over the Rock
Island County line, Awhere the couple of houses are at in the
ditch where it=s such a mess and they=ve got all that junky
equipment and so on.@ Wrigley then told Sampson she would
contact Rock Island County.
Instead of contacting Rock Island County, however, Wrigley
notified the City of Moline and the City of East Moline via the
Moline-East Moline Dispatch Center (Dispatch Center). Wrigley
informed dispatcher Debra Roman that she had received a
report of a vehicle Adown in the ditch@ on Route 150 Aat the
Rock Island, Henry County line *** on the Rock Island County
side by two houses with a lot of junk in the yard.@ Wrigley
indicated she did not have a vehicle description.
Roman then telephoned Rock Island County at its sheriff=s
department and reported the incident to Myrtle DeWitte, a
dispatcher for Rock Island County. The following conversation
ensued between the Dispatch Center and Rock Island County:
ARock Island County dispatcher Myrtle DeWitte:
Radio, Sergeant DeWitte.
Moline-East Moline dispatcher Debra Roman: Hello,
Myrtle, this is Deb at Moline.
DeWitte: Hi.
Roman: Henry County called.
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DeWitte: Um hum.
Roman: To tell me about a vehicle in the ditch.
DeWitte: Okay.
Roman: On Route 150.
DeWitte: Uh huh.
Roman: And it=s right at the Rock Island County,
Henry County line.
DeWitte: Oh, heaven forbid they would handle it.
Roman: Well, I know.
DeWitte: Okay.
Roman: They call us instead of calling you.
DeWitte: (Laughter) Okay, what kind of vehicle, did
they say?
Roman: Uh, no they didn=t know, this is a third party
call.
DeWitte: Okay.
Roman: By some houses or something that, couple
houses that have a bunch of junk in the yard.
DeWitte: Oh, okay, we=ll check on it.
Roman: Ya, that=ll, that=ll narrow it.
DeWitte: Ya, that=ll get it for us.
Roman: Ya.
DeWitte: Okay, thanks.@
None of the parties contacted responded to the scene on
the day the calls were made. On that day, Doris Hays= family
also notified Rock Island County that she was missing. Three
days later, Hays= body was found lying outside her vehicle at
the scene of the accident.
On March 3, 2003, plaintiff, Mary DeSmet, as personal
representative of the estate of the decedent, Doris F. Hays,
filed a 24-count complaint in the circuit court of Rock Island
County naming as parties defendant: Rock Island County;
Michael Grehan, the sheriff of Rock Island County; Myrtle
DeWitte, a dispatcher for Rock Island County; Henry County;
Gilbert Cady, the sheriff of Henry County; the Village of Orion;
Lori Sampson, clerk of the Village of Orion; the City of Moline;
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the City of East Moline; the Moline-East Moline Dispatch
Center; Debra Roman, dispatcher for the Dispatch Center; and
Steven Etheridge, the police chief of the City of Moline. Plaintiff
was subsequently granted leave to file an amended complaint.
Defendants thereafter filed motions to dismiss plaintiff=s
amended complaint pursuant to section 2B619 of the Code of
Civil Procedure (735 ILCS 5/2B619 (West 2002)), relying
principally on section 4B102 of the Tort Immunity Act (745 ILCS
10/4B102 (West 2002)). Various defendants also relied on the
public duty rule, as well as sections 2B106, 2B109, 2B201,
2B204, 2B210, 2B212, 3B108, and 5B101 of the Tort Immunity
Act (745 ILCS 10/2B106, 2B109, 2B201, 2B204, 2B210, 2B212,
3B108, 5B101 (West 2002)), and section 3.150 of the
Emergency Medical Services (EMS) Systems Act. 210 ILCS
50/3.150 (West 2002).
At the hearing on the motions to dismiss, in response to
certain arguments raised by defendants, the plaintiff suggested
that the complaint Aalleged facts sufficient to show willful and
wanton conduct.@ When the circuit court observed that the
complaint Aspecifically used the word >negligence= @ and that it
Alooks to be pled in negligence,@ counsel for plaintiff
responded, A[T]hat being noted, if this court was inclined to
make a ruling today or in the future based on the words of
negligence in there, we would ask to amend it to just change
those words, even though the facts we think are sufficient.@ The
circuit court agreed that point was Aeasily cured by
amendment.@ However, the court was never presented with a
written motion to amend, and it did not make a ruling on the
plaintiff=s offer to do so. The circuit court ultimately dismissed
plaintiff=s complaint with prejudice, ruling that section 4B102
immunized all defendants.
On appeal, plaintiff contended that the circuit court erred in
granting defendants= motion to dismiss, arguing that (1) the
immunity provided by section 4B102 of the Act was not
available to the defendants; (2) the Apublic duty rule@ does not
apply to this case; and (3) the defendants voluntarily undertook
a duty to help Hays when they each received telephone calls
informing them of the accident and then forwarded this
information to another party. The appellate court held that
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section 4B102 immunity applied to all defendants.
Consequently, the court determined there was no need to
address plaintiff=s other issues. No. 3B03B0964 (unpublished
order under Supreme Court Rule 23).
ANALYSIS
At the outset, we note that immunity under the Tort
Immunity Act is an affirmative matter properly raised in a
section 2B619 motion to dismiss. Governmental entities bear
the burden of proving their immunity under the Act. Van Meter
v. Darien Park District, 207 Ill. 2d 359, 370 (2003). When a
court rules on a section 2B619 motion to dismiss, it must
interpret all pleadings and supporting documents in the light
most favorable to the nonmoving party. Van Meter, 207 Ill. 2d
at 367-68, quoting In re Chicago Flood Litigation, 176 Ill. 2d
179, 189 (1997). Our review of a section 2B619 dismissal is de
novo. Van Meter, 207 Ill. 2d at 368.
Before this court, plaintiff presents three issues for our
consideration, all of which concern the applicability of section
4B102 of the Act. We set forth those issues precisely as plaintiff
has phrased them: (1) whether a municipality that sends no
assistance whatsoever in response to a request for help at an
accident scene can claim the immunity provided by section
4B102 of the Tort Immunity Act for failure to provide adequate
police or service; (2) whether a call placed for help at an
accident scene automatically triggers a police search rather
than a paramedic response, thus triggering the immunity of
section 4B102 for failure to provide adequate police services, or
whether such a call instead simply triggers a duty to send
rescue personnel, whose misconduct is not shielded by section
4B102; and (3) whether Doe v. Calumet City=s recognition of a
willful and wanton exception to the immunity otherwise
provided by section 4B102 for injuries resulting from failure to
provide adequate police service remains good law and applies
in this instance. Additionally, in response to defendants=
argument that they owed no duty to plaintiff=s decedent
because of the Apublic duty rule,@ plaintiff argues, alternatively,
that the rule is Aan anachronism and should be abolished,@ or
the Arule is actually an immunity provision.@
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Under the facts of this case, we hold that section 4B102 of
the Act provides immunity for defendants. Given that
determination, we deem it unnecessary to clarify the nature
and continued viability of the public duty rule in this context.
In Illinois, governmental entities were originally immune
from tort liability under the doctrine of sovereign immunity. This
court abolished sovereign immunity in 1959. See Molitor v.
Kaneland Community Unit District No. 302, 18 Ill. 2d 11 (1959).
In response to this court=s decision in Molitor, the legislature
enacted the Local Governmental and Governmental
Employees Tort Immunity Act in 1965. Zimmerman v. Village of
Skokie, 183 Ill. 2d 30, 43 (1998); Barnett v. Zion Park District,
171 Ill. 2d 378, 386 (1996). As we noted in Village of
Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 490
(2001), the purpose of the Act is to protect local public entities
and public employees from liability arising from the operation of
government. A >By providing immunity, the legislature sought to
prevent the diversion of public funds from their intended
purpose to the payment of damage claims.= @ Village of
Bloomingdale, 196 Ill. 2d at 490, quoting Bubb v. Springfield
School District 186, 167 Ill. 2d 372, 378 (1995).
The ratification of the Illinois Constitution of 1970 validated
both Molitor and the Tort Immunity Act. Harinek v. 161 North
Clark Street Ltd. Partnership, 181 Ill. 2d 335, 344 (1998). As
we observed in Harinek, article XIII, section 4, of the Illinois
Constitution now makes the General Assembly the ultimate
authority in determining whether local units of government are
immune from liability. Harinek, 181 Ill. 2d at 344-45.
Some decisions of this court have indicated that the
Acommon law public duty rule@ survived the abolition of
sovereign immunity and the enactment of the Tort Immunity
Act. See Zimmerman, 183 Ill. 2d at 44-45, citing approvingly
Huey v. Town of Cicero, 41 Ill. 2d 361, 363 (1968)
(AIndependent of statutory or common-law concepts of
sovereign immunity, the general rule is that a municipality or its
employees is not liable for failure to supply general police or
fire protection. [Citations.] This rule has been maintained in the
face of decisions holding municipalities liable for affirmative
negligent or wilful acts by their employees@). In Zimmerman,
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this court explained the rule and its purpose:
AThe public duty rule establishes that >a municipality or
its employees is not liable for failure to supply general
police or fire protection.= Huey v. Town of Cicero, 41 Ill.
2d 361, 363 (1968). The rationale behind the nonliability
principle of the public duty rule is that a municipality=s
duty is to preserve the >well-being of the community= and
that such a duty is >owed to the public at large rather
than to specific members of the community.= Schaffrath
v. Village of Buffalo Grove, 160 Ill. App. 3d 999, 1003
(1987).@ Zimmerman, 183 Ill. 2d at 44.
Schaffrath, cited approvingly in Zimmerman, provides
additional insight into the rationale for the public duty rule as it
pertains to police protection: AThe duty of the police to preserve
the well-being of the community is owed to the public at large
rather than to specific members of the community. [Citation.]
This rule rests upon public policy considerations that a police
department=s negligence, oversights, blunders or omissions are
not the proximate or legal cause of harms committed by others.
A general duty would put the police in the position of
guaranteeing the personal safety of every member of the
community.@ Schaffrath v. Village of Buffalo Grove, 160 Ill. App.
3d 999, 1003 (1987).
As noted, in addition to explaining the rule and its purpose,
this court, in Zimmerman, also affirmed the continuing viability
of the public duty rule:
AIn Huey, this court determined that the public duty rule
remained viable, even after the passage of the Tort
Immunity Act, on the basis that the rule existed
>[i]ndependent[ly] of statutory or common-law concepts
of sovereign immunity.= Huey, 41 Ill. 2d at 363.
***
This court=s holding in Huey that the public duty rule
exists >[i]ndependent[ly] of statutory or common-law
concepts of sovereign immunity= (emphasis added)
(Huey, 41 Ill. 2d at 363) establishes that neither this
court=s decision in Molitor abolishing sovereign
immunity, the General Assembly=s passage of the Tort
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Immunity Act, nor the ratification of the 1970 Illinois
Constitution altered the common law public duty rule
that a governmental entity generally owes no duty to
provide an individual citizen with specific municipal
services.@ Zimmerman, 183 Ill. 2d at 45.
Finally, this court, in Zimmerman, observed that A >the
existence of a duty and the existence of an immunity are
separate issues.= @ Zimmerman, 183 Ill. 2d at 45, quoting
Barnett, 171 Ill. 2d at 388. In Zimmerman, this court stated,
A >[u]nlike immunity, which protects a municipality from liability
for breach of an otherwise enforceable duty to the plaintiff, the
public duty rule asks whether there was any enforceable duty
to the plaintiff in the first place.= @ Zimmerman, 183 Ill. 2d at 46,
quoting 18 McQuillin on Municipal Corporations '53.04.25, at
165 (3d rev. ed. 1993). 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 4B102 of the Tort Immunity ActBas an immunity.
Indeed, this court apparently acknowledged as much in Aikens
v. Morris, 145 Ill. 2d 273 (1991), when it referred to Athe
common law blanket immunity, codified in section 4B102, which
immunizes a municipality and its employees for the failure to
provide police protection.@ Aikens, 145 Ill. 2d at 282 (ASection
4B102 immunity may apply in the context where police officers
are simply >providing [or failing to provide] police services= @);
see also Hernandez v. Kirksey, 306 Ill. App. 3d 912, 915
(1999) (section 4B102 codifies the common law public duty
rule). In Aikens, this court explained:
AWe note, *** in an effort to preserve the clarity of
our jurisprudence, that section 4B102 of the Tort
Immunity Act codifies the separate common law rule
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that municipalities or their employees are not liable for
failure to supply police or fire protection. This
long-standing rule survived Molitor. (See Huey v. Town
of Cicero (1968), 41 Ill. 2d 361, 363.) Under the rule, a
police department=s duty to preserve the well-being of
the community is owed to the public at large, rather than
specific individuals. [Citations.] The duty is so limited
because of strong public policy considerations which
seek to avoid placing police departments in the
untenable position of guaranteeing the personal safety
of each individual in the community.@ Aikens, 145 Ill. 2d
at 278 n.1.
This court=s comments in Aikens suggest, as plaintiff
argues, that the public duty rule, at least in this context, has
been incorporated into the Tort Immunity Act as an Aimmunity.@
However, the current status of the public duty rule is not a
point this court must resolve in this case because, even if these
A >governmental units are liable in tort on the same basis as
private tortfeasors= @ (Village of Bloomingdale, 196 Ill. 2d at
490, quoting In re Chicago Flood Litigation, 176 Ill. 2d at 192),
we find that section 4B102 immunity applies in any event. It is
our prerogative to forgo the determination of issues
unnecessary to the outcome of a case. See Calloway v.
Kinkelaar, 168 Ill. 2d 312, 326-27 (1995) (acknowledging Athe
public duty doctrine, a common law immunity based on public
policy,@ but declining to reach the issue of the rule=s
applicability); Lovgren v. Citizens First National Bank of
Princeton, 126 Ill. 2d 411, 417-18 (1989); see also Sundance
Homes, Inc. v. County of Du Page, 195 Ill. 2d 257, 288 (2001)
(Freeman, J., specially concurring, joined by McMorrow, J.). As
we may reject an ineffective assistance of counsel claim in a
criminal case on the basis of lack of prejudice, assuming
counsel=s deficient performance, arguendo, for purposes of
analytical expedience (see People v. Ceja, 204 Ill. 2d 332, 358
(2003)), so may we assume a defendant owes a duty, for the
sake of analysis, in order to expedite the resolution of an
immunity issue.
We now address the central issue presented by plaintiff=s
appeal, i.e., whether the circuit court erred in dismissing
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plaintiff=s complaint with prejudice on the basis of section
4B102 of the Tort Immunity Act. Section 4B102 provides in
pertinent part:
ANeither a local public entity nor a public employee is
liable for failure to establish a police department or
otherwise provide police protection service or, if police
protection service is provided, for failure to provide
adequate police protection or service *** .@ 745 ILCS
10/4B102 (West 2002).
When construing a statute, this court must, if possible, give
effect to each paragraph, sentence, clause, and word. People
v. Maggette, 195 Ill. 2d 336, 350 (2001). A court should
construe a statute, if possible, so that no term is rendered
superfluous or meaningless. Maggette, 195 Ill. 2d at 350. In
interpreting an immunity provision, our primary goal is to
ascertain and give effect to the intention of the legislature. We
seek that intent primarily from the language used in the Tort
Immunity Act. Barnett, 171 Ill. 2d at 388. Where an enactment
is clear and unambiguous, we are not at liberty to depart from
the plain language and meaning of the statute by reading into it
exceptions, limitations or conditions that the legislature did not
express. Village of Bloomingdale, 196 Ill. 2d at 493, quoting
Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990). This court may
not legislate, rewrite or extend legislation. If a statute, as
enacted, seems to operate in certain cases unjustly or
inappropriately, the appeal must be to the General Assembly,
and not to this court. Village of Bloomingdale, 196 Ill. 2d at 494,
quoting Michigan Avenue National Bank v. County of Cook,
191 Ill. 2d 493, 522 (2000).
Section 4B102, the immunity statute at issue, is couched in
the disjunctive. The pertinent portion of the statute contains
three clauses separated in two locations by the term Aor.@ The
statute, by its terms, immunizes local public entities and public
employees from liability for failure to (1) establish a police
department or (2) otherwise provide police protection or (3) if
police protection service is provided, for failure to provide
adequate police protection service. While the wording and
context of other less comprehensive provisions of the Tort
Immunity Act might warrant a different interpretation (see
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American National Bank & Trust Co. v. City of Chicago, 192 Ill.
2d 274, 280-81 (2000) (interpreting section 5B101 of the Act,
which fails to address inadequate governmental protection)), if
we were to interpret section 4B102 in any other way than the
tripartite manner indicated, we would be excising one of the
three aforementioned clauses from the statute as written by the
legislature. We do not possess that authority. Village of
Bloomingdale, 196 Ill. 2d at 494.
We first address plaintiff=s claim that section 4B102 does not
apply because Athere was no particular need for police
assistance.@ Plaintiff notes that the call for assistance did Anot
target any particular type of governmental agency@ and
maintains that Athe nature of the call suggests that at least one
non-police agency would be an appropriate responder.@
Plaintiff=s attempt to circumvent the application of section
4B102 is unavailing.
We again examine the essential facts provided in plaintiff=s
complaint and response. One has to assume that Lori
Sampson accurately conveyed the information given her by the
anonymous caller, because there is nothing in the record to the
contrary. Sampson told Christine Wrigley, the Henry County
dispatcher, that someone had witnessed a vehicle go off Route
150 at a high rate of speed and, because of its speed upon
departure from the road, the witness speculated that the
vehicle must have wrecked. Sampson described the location
with specificity and indicated that it was in Rock Island County.
Wrigley, in turn, contacted Debra Roman at the Dispatch
Center, informing her of the vehicle=s location, but telling her
only that there was a vehicle Adown in the ditch.@ Wrigley did
not mention the speed at which the vehicle was traveling when
it left the roadway, and she did not convey any assumptions
regarding an accident or injuries. It was that information which
Roman passed on to Rock Island County=s dispatcher, Myrtle
DeWitte. Consequently, authorities in Rock Island County, the
county in which accident actually occurred, knew only that
there was Aa vehicle in the ditch.@ Thus, plaintiff=s factual
allegations, stripped of unsupported speculation, conclusions
and characterizations, indicate that the defendants, collectively,
failed to respond to an anonymous report of a possible
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accident or Avehicle in the ditch.@ Nothing in the motorist=s
report confirmed that an accident had in fact occurred or that
anyone was injured. Plaintiff bases her case upon this failure to
respond to an anonymous, unconfirmed report of a possible
accident.
Appellate panels have held that Apolice protection service@
under section 4B102 is implicated where police are called upon
to assist or locate motorists who have driven off the roadway.
See McElmeel v. Village of Hoffman Estates, 359 Ill. App. 3d
824, 827-29 (2005); Kavanaugh v. Midwest Club, Inc., 164 Ill.
App. 3d 213, 221 (1987). We agree with those decisions
insofar as they hold that the assistance required in such
situations falls within the statutory umbrella of Apolice protection
services.@ We therefore reject plaintiff=s argument that the
caller=s report required an immediate emergency medical
response. Until the police had determined that an accident had
in fact occurred, and that there were injuries associated with
the accident, an emergency medical response was not
indicated. Consequently, section 4B102 applies in the first
instance, rather than some other statutory provision of the Tort
Immunity Act.
Plaintiff next contends A[w]here a municipality receives a
call for emergency assistance but fails to respond, and that
failure is the consequence of human error rather than any
exercise of discretion, Section 4B102 of the Tort Immunity Act
is not implicated.@ Plaintiff suggests that the Alegislature did not
intend to shield municipalities from liability caused by a
complete and inexcusable failure to act.@ She argues: A[T]here
was no failure to provide adequate police service, the conduct
that 4B102 addresses. Instead, there was a complete absence
of any police service, and 4B102 does not address that
situation.@ (Emphases in original.)
In passing, we note that plaintiff=s reference to Ahuman
error@ suggests an assertion of negligence (see Jolley v.
Consolidated R. Corp., 167 Ill. App. 3d 1002, 1008 (1988)
(equating Ahuman error@ with Anegligence@)), as opposed to the
Autter indifference to or conscious disregard for the welfare@ of
another that are the hallmarks of willful and wanton conduct.
See Doe v. Chicago Board of Education, 213 Ill. 2d 19, 28
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(2004). Plaintiff=s attribution of defendants= failure to respond to
Ahuman error@ is consistent with the allegations of Anegligence@
in her complaint. Notwithstanding this characterization, for
purposes of analysis, we will treat the complaint as if it alleged
either negligence or willful and wanton conduct. As we will
explain hereafter, it was properly dismissed in either event.
First, we reject plaintiff=s attempt to equate the failure to
Arespond@ to the report in this case with a failure to provide
Aany police service@ for purposes of section 4B102. Although
section 4B102 of the Act does immunize a local public entity for
its Afailure to establish a police department or otherwise provide
police protection service@ (745 ILCS 10/4B102 (West 2002)),
that portion of the statute is not at issue here because the
record in this case clearly shows that these governmental
defendants rendered police protection service to the general
public via their dispatch centers. The dispatch services simply
proved inadequate in this instance insofar as they failed to
deliver personalized police services to the scene in a timely
manner. The allegations of plaintiff=s complaint bear this out.
Plaintiff alleges that the defendants A[f]ailed to train and
supervise *** employees@ and Afailed to have in force
procedures which would ensure that all emergency calls for
assistance are responded to in a timely fashion.@ Those
allegations implicate the structural adequacy of police
protection services that defendants provided to the general
public. In essence, plaintiff alleges that those inadequacies
resulted in a failure Ato obtain sufficient information concerning
decedent=s motor vehicle accident,@ a failure Ato timely dispatch
appropriate law enforcement personnel,@ and a failure Ato
timely dispatch emergency medical personnel.@ Thus, plaintiff=s
allegations implicate the adequacy of services provided to the
general publicBservices that are intended to determine whether
and when police officers will be dispatched into the community
in response to specific calls for assistance. As we will explain
hereafter, when officers do respond to the scene of a call for
assistance, different rules of immunity may apply; however,
section 4B102 governs in the circumstances before us.
Moreover, since section 4B102 contains no exception for
willful and wanton misconduct, that section would immunize
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defendants even if we were to accept plaintiff=s argument that
the facts alleged in her complaint support that characterization.
As we noted in Village of Bloomingdale, and our prior decisions
discussed therein, when the legislature intends to limit an
immunity provision to cover only negligence and not willful and
wanton misconduct, it has A >unambiguously done so.= @ Village
of Bloomingdale, 196 Ill. 2d at 491, quoting Barnett, 171 Ill. 2d
at 391. When the plain language of an immunity provision in
the Tort Immunity Act contains no exception for willful and
wanton misconduct, we have reasoned that the legislature
A >intended to immunize liability for both negligence and willful
and wanton misconduct.= @ Village of Bloomingdale, 196 Ill. 2d
at 491, quoting Barnett, 171 Ill. 2d at 391-92. This court applied
that reasoning in Harinek and Chicago Flood Litigation to hold
that section 2B201 of the Tort Immunity Act immunized
defendants against allegations of willful and wanton
misconduct. Harinek, 181 Ill. 2d at 347; In re Chicago Flood
Litigation, 176 Ill. 2d at 196. Identical reasoning was utilized in
Henrich v. Libertyville High School, 186 Ill. 2d 381, 395 (1998),
and Barnett, 171 Ill. 2d at 391-92, en route to holdings that the
version of section 3B108 then in effect afforded Afull immunity.@
Barnett, 171 Ill. 2d at 393. The analysis employed in those
decisions compels the same conclusion in this case.
Section 4B102 of the Act is comprehensive in the breadth of
its reach, addressing situations where no police protection is
provided to the general public and those in which inadequate
protection is provided. Moreover, section 4B102 contains no
exception for willful and wanton misconduct. We hold, given the
facts of this case, that section 4B102 immunizes defendants
against both negligence and willful and wanton misconduct.
Plaintiff, however, submits that this court, in Doe v. Calumet
City, 161 Ill. 2d 374 (1994), recognized a willful and wanton
exception to the immunity otherwise provided by section
4B102, and she suggests that the exception applies to the facts
of this case. To the extent that Doe still represents good law,
we hold it is inapplicable under these circumstances, where the
police failed to respond to the scene of a possible accident.
Since this court=s decision in Doe cannot be properly
understood without reference to the outrageous conduct
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alleged of the supervising police officer in that case, we set
forth the facts at some length.
Jane Doe and her two children, Betty and John, were the
victims of a home invasion accompanied by violent assaults.
The intruder, Valentine, first sexually assaulted Jane and
threatened to kill her. Jane subsequently escaped from her
apartment and struggled with Valentine on the stairwell of her
building. During the course of that struggle, Valentine beat
Jane and again threatened to kill her. Valentine eventually left
Jane on the stairwell, reentered her apartmentBwhere Jane=s
children were still locatedBand locked the door behind him.
Jane, clothed only in undergarments, then left the building
screaming. Several neighbors heard the screams and dialed
911. Officer Horka was one of several officers to arrive at the
scene, and he assumed a supervisory role.
Officer Horka asked Jane what had happened. Jane told
him that there was a man in her apartment, and that the man
had tried to rape her and had threatened to kill her and her
children. Jane also told Horka that her children were still in the
apartment and she feared for their safety. Jane pleaded with
Horka to break down the door and rescue her children. Several
neighbors also pleaded with the officers to break down the
door. However, Officer Horka declined to break down the door,
stating that he did not want to be responsible for the property
damage. Jane repeatedly stated that she would pay for any
damage and screamed that she herself would save her
children. When Jane attempted to rescue her children, several
defendant police officers ordered her to stay put and then
physically restrained her. The complaint subsequently filed by
Jane and her children alleged that the defendant police officers
also prevented neighbors from breaking down the door.
The complaint further alleged that Horka delayed outside
the apartment, questioning Jane in an accusatory and rude
manner, attempting to obtain a key from the landlord, and
attempting to gain entry to the front door of the apartment by
ringing the doorbell. The complaint alleged that Horka and
another officer walked around the apartment building, checking
Jane=s windows and rear door, but they did not gain entry at
those locations. Plaintiffs= complaint claimed the rear balcony
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sliding glass doors, 12 feet above ground level, were unlocked
and ajar, and that the rear door of the building and the back
door to Jane=s apartment were also unlocked.
According to the complaint, Officer Horka spoke by radio to
his supervisor, Sergeant Targonski, who directed Horka to
break down the door. Several paramedics arrived and told the
officers that a Alock pick,@ a locksmith, and a ladder were
available for gaining entry into the apartment. However, Officer
Horka, and other officers at the scene, still did not attempt to
gain entry into Jane=s apartment. Finally, Investigator Miller of
the Calumet City police department arrived at the scene,
interviewed Jane, and, accompanied by several officers,
entered the apartment through the rear door of the building and
the back door of the apartment, which were unlocked. When
the officers entered the apartment, they found Valentine raping
Betty. From the time the officers arrived until Investigator Miller
interceded, Valentine had repeatedly raped Betty and forced
her to perform deviate sexual acts. Also during this time,
Valentine had choked and threatened John. See Doe, 161 Ill.
2d at 381-83.
As this court noted in Doe, from those facts, Aplaintiffs=
complaint framed three theories for transferring the cost of their
injuries to the defendant police officers and their respective
municipalities. Betty and John brought a negligence count
alleging the special duty exception to defendants= statutory
immunity. In addition, the negligence count also alleged willful
and wanton misconduct. Jane brought a count alleging
intentional infliction of emotional distress.@ Doe, 161 Ill. 2d at
383-84. Pertinent to our present inquiry, the circuit court
granted defendants= motion to dismiss the negligence and
willful and wanton misconduct counts for failure to state a claim
upon which relief could be granted. Doe, 161 Ill. 2d at 380.
This court agreed that the negligence count was properly
dismissed because plaintiffs had not established all of the
necessary elements for application of the special duty doctrine.
Doe, 161 Ill. 2d at 387. In the course of that portion of the
court=s analysis, this court engaged in a cursory discussion of
sections 4B102 and 4B107 of the Tort Immunity Act (Ill. Rev.
Stat. 1987, ch. 85, pars. 4B102, 4B107), and thereafter
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concluded that A[a]n exception to both the common law public
duty rule and the statutory immunities has evolved where the
actions of the municipality=s agent showed a special
relationship with the plaintiff that created a duty different from
the duty owed to the general public.@ Doe, 161 Ill. 2d at 385-86.
This court, in Doe, thus held that the Aspecial duty doctrine,@ a
judicially created exception to the judicially created public duty
rule, could be used to override both the public duty rule and
any applicable statutory immunities.
To the extent that Doe held the special duty doctrine could
override statutory immunities, that portion of the decision was
overruled by this court, sub silentio, in Zimmerman.
Zimmerman, 183 Ill. 2d at 46-50 (ABecause the special duty
doctrine is a judicially created exception to the public duty rule,
the special duty doctrine cannot, and was not intended to,
contravene the immunities provided to governmental entities
under the Tort Immunity Act. Such operation constitutes a
violation of the Illinois Constitution=s provisions governing
sovereign immunity (Ill. Const. 1970, art. XIII, '4) as well as the
separation of powers (Ill. Const. 1970, art. II, '1)@).
This court in Doe also held that the allegations of willful and
wanton misconduct in plaintiffs= complaint stated a cognizable
claim against one of the police officers involved, Officer Horka,
pursuant to section 2B202 of the Tort Immunity Act. Doe, 161
Ill. 2d at 388-90. Section 2B202 of the Act provides that A[a]
public employee is not liable for his act or omission in the
execution or enforcement of any law unless such act or
omission constitutes willful and wanton conduct.@ 745 ILCS
10/2B202 (West 2002). This court=s decision in Doe
suggestsBwithout ever statingBthat Officer Horka, the
supervising officer in control of the crime scene, was engaged
in the Aexecution or enforcement@ of the law for purposes of
section 2B202. In concluding that Aplaintiffs= complaint
presented a jury question as to whether Officer Horka=s
conduct was willful and wanton,@ this court emphasized the
following:
AThe complaint repeatedly states that Officer Horka was
the officer in control at the scene. Plaintiffs= complaint
alleges that Officer Horka was aware of the facts
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surrounding the intrusion into plaintiffs= home, including
the assault of Jane and the presence of the intruder in
the plaintiffs= home with Betty and John. *** A rational
trier of fact could find that Officer Horka=s conduct
showed an >utter indifference or conscious disregard for
the safety of= Betty and John.@ Doe, 161 Ill. 2d at 390-
91.
However, this court held that A[t]he allegations in the complaint
[were] insufficient to create a jury question regarding the willful
and wanton nature of the conduct of@ other officers named in
the complaint, who had also responded to scene and were also
aware of the facts surrounding the ongoing criminal action.
Doe, 161 Ill. 2d at 391. This court found the distinguishing
factor to be the control that Horka exercised over the crime
scene and over other officers who responded to the scene.
Doe, 161 Ill. 2d at 390-91. See also Calloway v. Kinkelaar, 168
Ill. 2d 312, 323 (1995) (acknowledging the significance of the
element of control in Doe: AThis officer [Horka] physically
restrained the mother and neighbors from trying to break in to
save the minor girl, who was being repeatedly raped by the
assailant, and the young boy, who was being choked and
threatened@).
What emerges from this court=s decision in Doe is a fact-
specific application of section 2B202 that bears some striking
similarities to an application of the special duty exception to the
public duty rule. The special duty exception to the public duty
rule requires that (1) the municipality must be uniquely aware
of the particular danger or risk to which plaintiff is exposed; (2)
there must be specific acts or omissions on the part of the
municipality; (3) the specific acts must be affirmative or willful
in nature; and (4) the injury must occur while the plaintiff is
under the direct and immediate control of municipal employees
or agents. Doe, 161 Ill. 2d at 386. Although this court found
that Athe police did not owe plaintiffs a special duty different
from the duty owed the general public@ because plaintiffs=
complaint did Anot allege sufficient facts to show that Betty and
John were under the direct and immediate control of
defendants@ (Doe, 161 Ill. 2d at 387), the court held that Officer
Horka=s control of the crime scene was sufficient, considering
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all the attendant circumstances, to allege a cause of action
based upon willful and wanton misconduct under section
2B202. We note that Horka not only exercised control over the
crime scene, but also, according to the complaint, stopped
others from entering the apartment to rescue the children.
Our review of Doe=s application of section 2B202 reveals
three elements of importance which distinguish Doe from the
case now before us.. First, and most obvious, in Doe, Officer
Horka actually responded to the scene and, second, he was, at
least ostensibly, engaged in Athe execution or enforcement@ of
the law when he assumed a supervisory role over the
investigation and law enforcement activities at the scene. As
plaintiff acknowledges, the police in this case did not respond
at all. Even if they had, they would have been providing service
in the nature of a community caretaking function, not Aenforcing
or executing@ the law, as this court has heretofore interpreted
that phrase. As we stated in Aikens, ASection 4B102 immunity
may apply in the context where police officers are simply
>providing [or failing to provide] police services,= but section
2B202 immunity requires more particular circumstances for its
application, i.e., an act or a course of conduct >in the execution
or enforcement= of law.@ Aikens, 145 Ill. 2d at 282. The policy
considerations that support the Acommon law blanket immunity,
codified in section 4B102,@ are Adifferent policy considerations@
from those underlying section 2B202 of the Act. Aikens, 145 Ill.
2d at 282-83. The third element of importance in DoeBthe
assertion of control at the sceneBmay help to explain why there
are different policy considerations underlying the two immunity
provisions. When an officer does respond to a call, be it a
report of a crime in progress, as in Doe, or a multivehicle traffic
accident requiring Aenforcement of the traffic laws,@ as in
Fitzpatrick v. City of Chicago, 112 Ill. 2d 211 (1986), he or she
exercises a degree of control over the situation and may well
alter the circumstances at the scene for betterBor worse. The
legislature obviously intended to immunize an officer from his
negligence in that circumstance, but section 2B202 expresses
a policy determination that the officer should not be afforded
immunity for acts of willful and wanton misconduct. Where no
officers respond to the sceneBwhether it is because no police
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protection services are provided or because the services
provided prove to be inadequateBthe status quo ante is at least
not altered to the detriment of those present. We believe that to
be the reasoning behind the legislature=s enactment of section
4B102 of the Tort Immunity Act.
In sum, we hold that the plain language of section 4B102 of
the Tort Immunity Act immunizes defendants under the facts of
this case. Section 2B202 does not apply in this instance as an
exception to section 4B102 immunity because defendants were
not executing or enforcing the law and they did not exercise
control over Hays. Although we recognize that there may be
additional exceptions to the application of section 4B102 where
a legislative enactment identifies a specially protected class of
individuals to whom statutorily mandated duties are owed (see
Moore v. Green, No. 100029, slip op. at 29-35 (April 20, 2006);
Calloway, 168 Ill. 2d at 323-24 (discussing the statutorily
mandated duties owed to the class of individuals protected by
the Illinois Domestic Violence Act of 1986 (750 ILCS 60/101 et
seq. (West 2002))), we do not encounter such a scenario here.
Although we firmly believe that citizens have a right to expect
the police to respond in a situation like this, the issue here is
whether section 4B102 of the Tort Immunity Act immunizes the
defendants from liability and the consequent payment of public
funds in satisfaction of an individual=s damage claims. See
Village of Bloomingdale, 196 Ill. 2d at 490 (A >By providing
immunity, the legislature sought to prevent the diversion of
public funds from their intended purpose to the payment of
damage claims.= @), quoting Bubb, 167 Ill. 2d at 378. Section
4B102 immunity applies in this case.
For the foregoing reasons, we affirm the judgment of the
appellate court.
Affirmed.
JUSTICE McMORROW, dissenting:
At issue in this appeal is whether defendants in this
actionBvarious counties and municipalities, as well as their
agents and employeesBunder the facts presented, are
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absolutely immune from liability based upon section 4B102 of
the Local Governmental and Governmental Employees Tort
Immunity Act (Tort Immunity Act) (745 ILCS 10/4B102 (West
2002)). The majority answers this question in the affirmative,
holding that a complaint alleging either negligence or willful and
wanton misconduct on the part of defendants is properly
dismissed pursuant to this statutory provision.
Pertinent to the instant cause, section 4B102 of the Tort
Immunity Act provides:
ANeither a local public entity nor a public employee is
liable for failure to establish a police department or
otherwise provide police protection service or, if police
protection service is provided, for failure to provide
adequate police protection or service ***.@ 745 ILCS
10/4B102 (West 2002).
The majority affirms the circuit court=s dismissal of plaintiff=s
complaint on the basis that defendants are completely
immunized from plaintiff=s claims pursuant to section 4B102 of
the Tort Immunity Act (745 ILCS 10/4B102 (West 2002)). The
majority arrives at this conclusion based on a rationale first
employed by this court in Barnett v. Zion Park District, 171 Ill.
2d 378 (1996). In Barnett, this court held that section 3B108(a)
of the Tort Immunity Act (745 ILCS 10/3B108(a) (West 1992))
cloaked the defendant park district with absolute immunity
against allegations that lifeguards at the defendant=s swimming
pool knowingly and willfully ignored pleas to save a drowning
minor, thereby causing the minor=s death. The Barnett majority
reasoned that the absence of an explicit exception for willful
and wanton misconduct in section 3B108(a) of the Act meant
that Athe legislature must have intended to immunize liability for
both negligence and willful and wanton misconduct.@ Barnett,
171 Ill. 2d at 391-92. In the course of my dissent from the
majority=s holding in Barnett, I observed that there Aare strong
reasons why the policies underlying grants of immunity for
simple negligence should not be impliedly expanded to reach
willful and wanton or intentional misconduct.@ Barnett, 171 Ill.
2d at 403 (McMorrow, J., dissenting).
More specifically, I explained in Barnett that Athe general
rationale for granting public entities the protection of immunities
-22-
not enjoyed by private entities is the significant expense and
burdens placed upon the government@ when negligence on the
part of local public entities or officials carrying out their
government duties results in injuries to the public and such
negligence lawsuits Aare permitted to flourish unchecked.@
Barnett, 171 Ill. 2d at 403-04 (McMorrow, J., dissenting). It was
my view, however, that the Arationale underlying a grant of
immunity for simple negligence is different in kind from any
justification for immunizing tortious conduct that is intentionally
harmful or willful and wanton,@ and if the legislature actually
intended to bestow absolute immunity for willful and wanton
misconduct, the immunity statute should positively and
unequivocally state such an intention. Barnett, 171 Ill. 2d at
404 (McMorrow, J., dissenting).
Since Barnett, I have adhered to my belief that the policies
underlying grants of immunity for simple negligence are
distinguishable from any justification for blanketing deliberate
governmental misconduct with immunity. See In re Chicago
Flood Litigation, 176 Ill. 2d 179, 213-14 (1997) (McMorrow, J.,
concurring in part and dissenting in part); Harinek v. 161 North
Clark Street Ltd. Partnership, 181 Ill. 2d 335, 354 (1998)
(McMorrow, J., concurring in part and dissenting in part);
Henrich v. Libertyville High School, 186 Ill. 2d 381, 401-02
(1998) (McMorrow, J., dissenting); Village of Bloomingdale v.
CDG Enterprises, Inc., 196 Ill. 2d 484, 501-10 (2001)
(McMorrow, J., concurring in part and dissenting in part);
Arteman v. Clinton Community Unit School District No. 15, 198
Ill. 2d 475, 488-90 (2002) (McMorrow, J., concurring in part and
dissenting in part); Moore v. Green, No. 100029, slip op. at 15-
20 (April 20, 2006) (McMorrow, J., specially concurring). I note
that my conclusion in Barnett that the legislature did not intend
to immunize willful and wanton misconduct in the immunity
provisions of section 3B108 was validated when the General
Assembly passed Public Act 90B805 (Pub. Act 90B805, eff.
December 2, 1998), which amended section 3B108 to exclude
willful and wanton conduct from the immunity granted by the
statute. My conviction remains unwaivering that deliberate acts
of governmental misconduct are not protected under the Tort
Immunity Act by provisions which remain silent with respect to
-23-
an express exemption for such intentional harmful acts.
In the matter at bar, the majority, based upon the Barnett
rationale, interprets section 4B102 of the Tort Immunity Act
(745 ILCS 10/4B102 (West 2002)) as affording a local
governmental entity and its employees absolute immunity
against liability for any injury caused to a citizen as a result of
the entity=s Afailure to establish a police department or
otherwise provide police protection service or if police
protection service is provided, for failure to provide adequate
police protection or service,@ even if such injury results from
intentional and knowing misconduct on the part of defendants.
The majority arrives at this result on the basis that section
4B102 does not contain an express exemption for willful and
wanton misconduct. The majority, however, does recognize
that there may be limited exceptions to the application of the
blanket immunity it finds exists in section 4B102 in those
instances Awhere a legislative enactment identifies a specially
protected class of individuals to whom statutorily mandated
duties are owed.@ Slip op. at 19. This limited exception,
however, does not ameliorate the harshness of the majority=s
holding which will, in most instances, insulate government
entities and employees from liability for intentional misconduct.
The majority states that although it Afirmly believe[s] that
citizens have a right to expect the police to respond in a
situation like this, the issue here is whether section 4B102 of
the Tort Immunity Act immunizes the defendants from liability
and the consequent payment of public funds in satisfaction of
an individual=s damage claims.@ Slip op. at 19. It is my view that
blanket immunity should not be afforded to acts performed by
local governmental entities or government officials in bad faith,
especially where the provision of life-and-death police
protection services are at issue. It is evident to me that the
blanket, unlimited immunity bestowed upon defendants in this
case is unnecessary to protect public entities from liability
arising from Athe operation of government,@ which is the stated
purpose of the Tort Immunity Act (745 ILCS 10/1B101.1 (West
2002)). Construing section 4B102 of the Act to immunize only
negligent conduct would completely fulfill this legislative
objective.
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Accordingly, I respectfully dissent from the majority=s
conclusion that intentional misconduct by a local public entity or
employee is shielded by the provisions contained within section
4B102 of the Tort Immunity Act (745 ILCS 10/4B102 (West
2002)). I continue to adhere to the view that where the Tort
Immunity Act is silent on the question of whether intentional
government misconduct is exempt from immunity, it should not
be concluded that such silence translates into a positive intent
on the part of the General Assembly to cloak local
governmental entities and their employees with unconditional
immunity.
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