Hess v. Flores ( 2011 )

FIRST DIVISION
March 31, 2011
No. 1-08-1653
REBECCA HESS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
)
RONALD FLORES, Individually and d/b/a )
Flores Properties Inc., CHARLOTTE K. )
FLORES, a/k/a Charlotte K. Klink, ) No. 04 L 12005
)
Defendants )
)
(The City of Chicago, ) Honorable
) Elizabeth Budzinski,
Defendant-Appellee). ) Judge Presiding.
JUSTICE ROCHFORD delivered the judgment of the court, with opinion.
Presiding Justice Hall and Justice Hoffman concur with the judgment and opinion.
OPINION
Plaintiff, Rebecca Hess, fell from the second-floor, rear staircase of an apartment building
located at 2050-2052 W. Summerdale Avenue, Chicago (the Summerdale building). Plaintiff fell
where a portion of the rear staircase handrail had been removed and marked with yellow caution tape.
Prior to her fall, the rear staircases and porches had been the subject of multiple inspections by the
city of Chicago (the City) and judicial proceedings relating to building code violations.
Plaintiff brought this action seeking damages against defendants, Ronald Flores, individually
and d/b/a Flores Properties Inc., and Charlotte K. Flores, a/k/a Charlotte K. Klink, as owners and/or
managers of the Summerdale building for failing to maintain and repair the rear stairs and porches.
Plaintiff also sued the City for allegedly wilful and wanton conduct on the part of its building
No. 1-08-1653
inspectors. Plaintiff now appeals from an order granting the City's motion for summary judgment,
an order made final and appealable pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26,
2010).
I. BACKGROUND
Plaintiff filed her initial complaint on October 24, 2005. The operative first-amended
complaint was filed in January of 2006.
In the amended complaint, plaintiff generally alleged that the Summerdale building was a
three-story building which defendants Mr. Flores and Ms. Klink leased for residential purposes. The
building included a rear porch and staircase system for use by lessees and invitees of the property.
On a number of occasions in 2002 and 2003, the Summerdale building had been inspected by the City
for violations of the municipal building code (Code), including defects in the construction of the rear
porch and staircase system. A March 15, 2002, inspection report noted that the “outer stringer” was
scabbed at the second-floor deck, a four-inch by four-inch upright was rotting at the second-floor
deck, and there was a pulling railing section from the second to the third floor. After two subsequent
inspections continued to find the porch and staircase system to be in a dangerous condition, the City
filed a formal housing court complaint against Mr. Flores. The complaint alleged 11 violations of the
Code, including a failure to replace a “dilapidated and dangerous porch.”
The City continued to inspect the Summerdale building in 2003 and 2004, and continued to
find the porch and staircase system to be in a “dangerous and hazardous condition.” While Mr. Flores
and Ms. Klink did undertake some repairs of this system, they did so without a building permit, and
at the time of plaintiff’s accident, the porch and staircase system did not have any “side railings and/or
-2-
No. 1-08-1653
hand railings on the rear staircase.” On August 18, 2004, plaintiff fell from the rear porch system
while exiting an apartment on the second floor of the Summerdale building. She suffered severe
injuries, including a spinal cord injury resulting in paralysis.
Plaintiff’s amended complaint contains allegations of negligence and willful and wanton
conduct against both Mr. Flores and Ms. Klink. The complaint also contains a single count of “willful
and wanton” conduct against the City. Specifically, plaintiff alleged that the City owed her a duty "to
refrain from or engage in, both directly and indirectly, acts and/or omissions exhibiting reckless
disregard and utter indifference in the inspection of buildings and execution and enforcement of the
law." Plaintiff alleged that the City, through it's department of buildings, breached this duty when it
acted with utter indifference or conscious disregard for the safety of others by: (1) failing to
adequately and properly inspect the porch and staircase system for Code violations; (2) failing to train
the building inspectors to identify Code violations; (3) engaging in a practice of hiring unqualified
building inspectors; (4) failing to block access to or remove the rear staircase's hazardous conditions;
(5) allowing the Summerdale building to remain in a hazardous condition; (6) failing to fully inform
the housing court judge of the hazardous condition of the rear staircases; and (7) requiring Mr. Flores
to place yellow caution tape on the porch in place of the handrails or side rails.
In deposition testimony, Vladimir Tkach, a building inspector for the City's department of
buildings, bureau of conservation, confirmed that he inspected the Summerdale building on March
15, 2002. He discovered 17 violations of the Code throughout the Summerdale building, including
certain problems with the rear porches and stairs. Although the department of buildings referred the
Code violations to administrative hearing, the rear porches and stairs remained in disrepair when Mr.
-3-
No. 1-08-1653
Tkach inspected the Summerdale building on October 9, 2002, and July 17, 2003. After his July 17,
2003, inspection, Mr. Tkach concluded that the rear staircases were "dangerous and hazardous." The
department of buildings recommended that suit be brought in housing court against the owners for
violations of the Code.
For purposes of reporting to the housing court judge on the status of any repairs, Mr. Tkach
also inspected the Summerdale building on October 24, 2003, January 6, 2004, and February 18,
2004. Although repairs had begun, he concluded on each of these dates that the rear staircases were
still in a dangerous and hazardous condition. Mr. Tkach believed that the rear staircases and porches
needed to be replaced or assessed by an engineer. Mr. Tkach denied that he ever ordered the porch
repairs to stop or told anyone to take down the handrails and put up yellow caution tape.
After Mr. Tkach was transferred to another position, Donald Lesley had responsibility for
inspecting the Summerdale property for the housing court case. Mr. Lesley testified in his deposition
that he inspected the building on June 9, 2004, and found that the rear porches and stairs were still
in a dangerous and hazardous condition. Mr. Lesley observed that the repair work to the staircases
was creating unsafe conditions and was not in compliance with the Code. On June 9, 2004, Mr.
Lesley asked the worker to tell the owners that the repairs were not being done in a workmanlike
manner and "to get it together." Mr. Lesley also denied that he ever ordered the porch repairs to stop
and denied telling anyone to take down the handrails and put up yellow caution tape.
John Price, a former supervisor for the bureau of conservation, retired in March 2004. In his
deposition, Mr. Price explained that bureau of conservation inspectors may ask owners to stop work
but are not authorized to issue stop-work orders. Mr. Price agreed that open stair railings with
-4-
No. 1-08-1653
yellow caution tape would be in violation of the Code and a dangerous condition.
Mr. Flores testified that he hired Russell Roe, a tenant in the Summerdale building, to
complete the repairs on the rear porches. Mr. Flores also testified that while those repairs were
taking place, a City inspector told either himself or Mr. Roe to stop the repair work on the porches
and stairs because no permit had been obtained for that work. Mr. Flores told Mr. Roe to put up
yellow caution tape if he was working on the porches. At the time work was stopped by the City,
a portion of the handrails had been removed.
Mr. Roe testified that, before beginning work in June or July of 2004, he met with an
unnamed building inspector to discuss the Code violations and the necessary repairs of the rear
staircases. Mr. Roe began to remove sections of the handrails at the end of July or beginning of
August. Mr. Roe testified that, after some of the handrails were removed, the same building inspector
who met with him prior to the repairs ordered that the work on the rear staircases stop because no
permit had been issued. Mr. Roe stated that the City inspector threatened him with arrest should the
work continue, and also told him to put up yellow caution tape to warn the tenants to stay off.
On the day he was told to stop work on the staircases, Mr. Roe put yellow caution tape across
the rear doors of the apartments and other points of access and through the handrails and other places
on the staircases. He also gave written warnings to the tenants that the staircases should not be used.
Mr. Roe testified that two female City inspectors later came to the Summerdale building and
reiterated that no work should be done on the rear staircases. One of these inspectors remarked to
Mr. Roe: "Oh, good. I see you guys got the tape up." Mr. Roe said these inspectors saw that
handrails were missing and that the stairs were marked with yellow caution tape.
-5-
No. 1-08-1653
In moving for summary judgment, the City argued that, under the common law public duty
rule, it did not owe plaintiff a duty. Moreover, even if a duty existed, the City was protected from
liability under certain provisions of the Local Governmental and Governmental Employees Tort
Immunity Act (Tort Immunity Act) (745 ILCS 10/1–101 et seq. (West 2008)), including sections
2–105 and 2–207, which specifically relate to inspections of private property (745 ILCS 10/2–105,
2–207 (West 2008)). Plaintiff responded by arguing that a duty existed. Additionally, plaintiff
asserted that any immunity provisions were not applicable because the City had contributed to the
dangerous condition of the rear staircase by ordering the repair work to stop at a time when there
were missing handrails, directing that yellow caution tape be placed along the openings, and
threatening Mr. Roe with arrest if he continued to work on the rear staircases. The trial court granted
the City’s motion for summary judgment, and subsequently made that order final and appealable
pursuant to Illinois Supreme Court Rule 304(a) (eff. Jan. 1, 2006).
II. ANALYSIS
On appeal, plaintiff asserts that the City’s motion for summary judgment was improperly
granted because the City did in fact owe her a duty and the Tort Immunity Act did not provide
immunity for the City’s breach of that duty. Because the issues of governmental duty and immunity
have been the source of a great deal of prior litigation, we begin with a review of both legal concepts
before addressing plaintiff’s specific arguments.
A. Standard of Review
"Summary judgment is proper if, when viewed in the light most favorable to the nonmoving
party, the pleadings, depositions, admissions, and affidavits on file demonstrate that there is no
-6-
No. 1-08-1653
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of
law." Lazenby v. Mark's Construction, Inc., 236 Ill. 2d 83, 93 (2010); 735 ILCS 5/2–1005(c) (West
2008). The propriety of an order granting summary judgment is a question that we review de novo.
Jones v. Country Mutual Insurance Co., 371 Ill. App. 3d 1096, 1098 (2007). “Furthermore, we may
affirm the trial court's grant of summary judgment for any reason that is supported by the record,
regardless of whether that reason formed the basis for the trial court's judgment.” Bovan v. American
Family Life Insurance Co., 386 Ill. App. 3d 933, 938 (2008).
As noted above, the issues raised in this appeal include the existence, if any, of a duty on the
part of the City and whether the City is nevertheless immune from suit pursuant to the Tort Immunity
Act. Both of these are questions of law and, therefore, are also subject to our de novo review.
Vancura v. Katris, 238 Ill. 2d 352, 373-74 (2010) (whether a duty exists is a question of law, which
is reviewed de novo); Wilson v. City of Decatur, 389 Ill. App. 3d 555, 558 (2009) (interpretation of
the Tort Immunity Act is a matter of law reviewed de novo).
B. Historical Duties and Immunities
Under the common law, to prevail in a tort action a plaintiff must establish that the defendant
owed a duty of care, that the defendant breached that duty, and that plaintiff incurred injuries
proximately caused by the breach. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004).
The requirement that a plaintiff establish the existence of a duty of care applies whether the plaintiff
proceeds under a theory of negligence or willful and wanton conduct. Bialek v. Moraine Valley
Community College School District 524, 267 Ill. App. 3d 857, 862 (1994). Where there is no duty,
there can be no liability. Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 447 (1996).
-7-
No. 1-08-1653
However, historically the common law specifically protected local governmental entities from
tort liability under the doctrine of sovereign immunity and the public duty rule. The sovereign
immunity doctrine traditionally immunized a governmental unit in Illinois from liability and has been
called a “ ‘survival of the medieval idea that the sovereign can do no wrong,’ or that ‘the King can
do no wrong.’ ” Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11, 20 (1959)
(quoting 38 Am. Jur., Municipal Corporations, § 573, at 266). Under the public duty rule, a
municipality is not to be held liable for its failure to provide adequate governmental services, such as
police or fire protection. Huey v. Town of Cicero, 41 Ill. 2d 361, 363 (1968). “The rationale for this
rule was that the duty of a municipality to provide governmental services was owed to the public at
large and therefore took precedence over any duty owed to a particular plaintiff.” Harinek v. 161
North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 345 (1998).
A common law exception to the public duty was recognized, however, where a governmental
unit was operating under a “special duty” to a particular individual such that it could be held liable
in tort. Huey, 41 Ill. 2d at 363. For there to be a special duty, four requirements must be met: (1)
the governmental entity must be uniquely aware of the particular danger or risk to which plaintiff is
exposed; (2) plaintiff must show specific acts or omissions on the part of the entity; (3) those specific
acts or omissions must be affirmative or willful in nature; and (4) the injury must occur while plaintiff
is under the direct and immediate control of employees or agents of the governmental entity. Thames
v. Board of Education, 269 Ill. App. 3d 210, 214 (1994).
However, this common law structure has been significantly altered, beginning in 1959 with
our supreme court’s abolishment of sovereign immunity in Molitor. Molitor, 18 Ill. 2d at 20. In
-8-
No. 1-08-1653
response to the Molitor decision, the legislature passed the Tort Immunity Act in 1965. Ill. Rev. Stat.
1965, ch. 85, par. 1–101 et seq. (now 745 ILCS 10/1-101 et seq. (West 2008)). The Tort Immunity
Act adopted the general principle that local governmental units are liable in tort, but limited this
liability with an extensive list of immunities based on specific government functions. Harinek, 181
Ill. 2d at 344. “By providing immunity, the legislature sought to prevent the diversion of public funds
from their intended purpose to the payment of damage claims.” Bubb v. Springfield School District
186, 167 Ill. 2d 372, 378 (1995).
The next major change occurred in 1970, when:
“The ratification of the Illinois Constitution of 1970 validated both Molitor
and the Tort Immunity Act. Article XIII, section 4, of the Illinois Constitution reads
as follows: ‘Except as the General Assembly may provide by law, sovereign immunity
in this State is abolished.’ [Citation.] This provision embodies the presumptive rule
from Molitor that units of local government are subject to tort liability, but ‘makes the
General Assembly the ultimate authority’ in determining whether such a unit is
nevertheless immune from liability. [Citation.] Therefore, governmental units are
now liable in tort on the same basis as private tortfeasors unless a valid statute dealing
with tort immunity imposes conditions upon that liability. [Citation.] Where such
statutory conditions are found to exist, tort liability is precluded.” Harinek, 181 Ill.
2d at 344-45.
Thus, with the passage of the Tort Immunity Act and the ratification of the 1970 Illinois
Constitution, we may refer to the common law to determine the duties of a local governmental entity.
-9-
No. 1-08-1653
Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 490 (2001). However, “to
determine whether that entity is liable for the breach of a duty, we look to the Tort Immunity Act,
not the common law.” Bloomingdale, 196 Ill. 2d at 490.
C. Open Questions Addressed in the Case Law
Despite these efforts to codify the nature and scope of governmental liability and immunity,
courts have continued to struggle with these concepts for decades. Of particular relevance to this
appeal, much of this litigation has centered around four related issues: (1) did the public duty rule
survive the adoption of the Tort Immunity Act and the ratification of the 1970 Illinois Constitution;
(2) if so, is the special duty exception to the public duty rule still relevant in light of the legislature’s
sole constitutional authority to determine governmental immunity; (3) do the various provisions of
the Tort Immunity Act immunize governmental units for their willful and wanton conduct; and (4)
if a specific Tort Immunity Act provision does provide immunity for willful and wanton conduct in
a specific context, does section 2–202 of the Tort Immunity Act (745 ILCS 10/2–202 (West 2008)),
which explicitly exempts willful and wanton conduct from municipal employee immunity for acts or
omissions in the execution or enforcement of any law, also apply and/or operate as an exception to
any such broader immunity? A review of how the courts have addressed these questions will allow
us to properly resolve this appeal.
We first consider the public duty rule. It might seem an anachronism that this rule should
have survived the adoption of the Tort Immunity Act and the ratification of the 1970 Illinois
Constitution. As our supreme court has repeatedly stated, given the language of the Illinois
Constitution and the Tort Immunity Act, governmental units are to be held liable in tort on the same
-10-
No. 1-08-1653
basis as any private tortfeasor unless a tort immunity statute imposes conditions upon that liability.
Bloomingdale, 196 Ill. 2d at 490; Harinek, 181 Ill. 2d at 345; Barnett v. Zion Park District, 171 Ill.
2d 378, 386 (1996). It is therefore reasonable to question the continuing relevance of a common law
rule limiting the liability of governmental units, especially one that seems to be founded in the
abolished doctrine of sovereign immunity. Indeed, at least one supreme court justice has recognized
such concerns, contending that the public duty rule was based upon concepts of sovereign immunity
and, therefore, is no longer viable in this state. Calloway v. Kinkelaar, 168 Ill. 2d 312, 337-43 (1995)
(Freeman, J., concurring). More recently, our supreme court specifically addressed questions about
the continued validity and scope of the common law public duty rule in DeSmet v. County of Rock
Island, 219 Ill. 2d 497, 506-09 (2006). However, the court did not decide the issue of duty in that
case, instead resolving the appeal on the basis of a statutory immunity. DeSmet, 219 Ill. 2d at 509.
Nevertheless, in the absence of a decision from our supreme court to the contrary, it remains
clear that the public duty rule continues to play a role in the determination of governmental tort
liability. Specifically, the court has recognized that “the existence of a duty and the existence of an
immunity are separate issues.” Barnett, 171 Ill. 2d at 388. Furthermore, “ ‘[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 v. Village of Skokie, 183 Ill. 2d 30, 46 (1998) (quoting 18 Eugene McQuillin, The Law
of Municipal Corporations §53.04.25, at 165 (James Perkowitz Solheim, et al. eds. 3d rev. ed.
1993)). Thus, because the Tort Immunity Act codifies immunities and does address preexisting
common law duties, “neither [the supreme court's] decision in Molitor abolishing sovereign immunity,
-11-
No. 1-08-1653
the General Assembly's passage of the Tort 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.” Id. at 45-46.
While the public duty rule’s common law foundation may remain sound, the special duty
exception to that rule has been significantly affected by the passage of the Tort Immunity Act and the
ratification of the 1970 Illinois Constitution. As explained above, the “special duty doctrine arose as
a judicially created exception to the nonliability principles of the public duty rule, and is applicable
in certain limited instances where a governmental entity has assumed a special relationship to an
individual ‘so as to elevate that person's status to something more than just being a member of the
public.’ ” Zimmerman, 183 Ill.2d at 32-33 (citing Schaffrath v. Village of Buffalo Grove, 160 Ill.
App. 3d 999, 1003 (1987)). Thus, the special duty exception is a common law, judicially created rule
which both establishes a duty on the part of a governmental entity and imposes liability for a breach
of that duty. In light of the passage of the Tort Immunity Act and the ratification of the 1970 Illinois
Constitution, however, we now look to the Tort Immunity Act and not the common law to determine
whether a governmental entity is liable for the breach of a duty. Bloomingdale, 196 Ill. 2d at 490.
What then is the role of the special duty exception to the public duty rule, both in terms of
governmental duty and liability, in this altered statutory and constitutional landscape?
Our supreme court has in the past recognized that, despite the language of the 1970 Illinois
Constitution granting the legislature the power to define governmental immunities, the special duty
exception could override both the common law public duty rule and any immunities provided by the
Tort Immunity Act. See Doe v. Calumet City, 161 Ill. 2d 374, 385-86 (1994) (“An exception to both
-12-
No. 1-08-1653
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.”) However, that position has since been reversed.
In Harinek, our supreme court determined that “the special duty doctrine may not operate to
impose liability upon a public entity after a court has found that entity immune from liability under
the Tort Immunity Act.” Harinek, 181 Ill. 2d at 347. The court reasoned that any other conclusion
would violate the Illinois Constitution’s provisions concerning both sovereign immunity and those
regarding the separation of powers. Id. The supreme court subsequently reaffirmed this position in
Zimmerman: “Because 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.” Zimmerman, 183 Ill. 2d at 46. Thus, the
current position of our supreme court is that the “special duty doctrine simply allows courts to impose
liability upon a municipality by making an exception to the public duty rule in cases in which the
legislature has not granted immunity to the municipality.” Harinek, 181 Ill. 2d at 347.
Another question that has been addressed by the courts of this state is whether many of the
numerous individual provisions of the Tort Immunity Act protect a governmental unit from suits
seeking to recover for willful and wanton conduct, or only those alleging negligence. Even a cursory
review of the Tort Immunity Act will reveal numerous provisions providing governmental entities or
their employees with specific immunities but which do not specifically address the issue of whether
those immunities extend to allegations of willful and wanton conduct. This includes two of the
provisions at issue in this case. See 745 ILCS 10/2–105, 2–207 (West 2008). Nevertheless, our
-13-
No. 1-08-1653
supreme court has almost universally held that such provisions also immunize governmental entities
and employees for willful and wanton conduct.
For example, in Barnett a park district claimed immunity from a suit alleging willful and
wanton conduct with regard to the drowning of a child in the district’s swimming pool. Barnett, 171
Ill. 2d at 389. The district specifically claimed it was immune pursuant to section 3–108 of the Tort
Immunity Act, which as the supreme court recognized does not specifically include any language
regarding willful and wanton conduct. Barnett, 171 Ill. 2d at 388 (quoting 745 ILCS 10/3–108 (West
1992)). Nevertheless, the supreme court rejected the argument that section 3–108 did not provide
full immunity, stating:
“The plain language of section 3–108 is unambiguous. That provision does not
contain an immunity exception for willful and wanton misconduct. Where the
legislature has chosen to limit an immunity to cover only negligence, it has
unambiguously done so. [Citation.] Since the legislature omitted such a limitation
from the plain language of section 3–108, then the legislature must have intended to
immunize liability for both negligence and willful and wanton misconduct.
[Citations.]” Barnett, 171 Ill. 2d at 391-92.
Our supreme court has used similar reasoning in other cases, finding that the Tort Immunity
Act provides blanket immunity despite the lack of any specific reference to willful and wanton
conduct. See In re Chicago Flood Litigation, 176 Ill. 2d 179, 196 (1997) (section 2–201); Harinek,
181 Ill. 2d at 347 (section 2–201); Henrich v. Libertyville High School, 186 Ill. 2d 381, 394-95
(1998) (section 3–108). This court has in turn relied upon these decisions to determine that at least
-14-
No. 1-08-1653
two of the immunity provisions at issue here, sections 2–105 and 2–207 of the Tort Immunity Act,
also provide blanket immunity to governmental units. Ware v. City of Chicago, 375 Ill. App. 3d 574,
583 (2007).
There is, however, at least one instance where our supreme court has not been consistent in
its treatment of the Tort Immunity Act immunities. In Doe, the court addressed the final issue
highlighted above, i.e., does section 2–202 of the Tort Immunity Act operate as an exception to the
blanket immunities provided in other sections? Doe, 161 Ill. 2d at 388. The court considered this
question in the context of allegations of negligence and willful and wanton conduct asserted against
Calumet City and several of its police officers with respect to a response to an emergency 911 call.
Doe, 161 Ill. 2d at 381-84. Defendants asserted that they were immune from suit pursuant to sections
4–102 and 4–107 of the Tort Immunity Act, which respectively immunize governmental entities and
their employees for actions in the provision of police services and failures to arrest or maintain
custody over an individual. Doe, 161 Ill. 2d at 385 (citing Ill. Rev. Stat.1987, ch. 85, pars. 4–102,
4–107. However, the court noted that the Tort Immunity Act also contained a provision, section
2–202, which provided that 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.’ ”
(Emphasis in original.) Doe, 161 Ill. 2d at 388 (quoting Ill. Rev. Stat. 1987, ch. 85, par. 2–202).
In light of these various provisions, the court determined that it must consider whether section
2–202 operated as an exception to the blanket immunity provided by sections 4–102 and 4–107 of
the Tort Immunity Act. Doe, 161 Ill. 2d at 388-89. The court noted that prior decisions of the
appellate court had come to differing conclusions, with some finding that sections 4–102 and 4–107
-15-
No. 1-08-1653
prevailed over section 2–202 and thus provided complete immunity, while others found that section
2–202 provided an exception to this immunity and allowed recovery against governmental entities
for willful and wanton conduct. Id. at 389. Ultimately, the court sided with the latter line of
authority and held that plaintiffs could evade the statutory immunities provided to governmental
entities and their employees by establishing willful and wanton conduct. Id. at 390.
Not surprisingly, Doe generated a great deal of litigation and resulted in a host of decisions
wrestling with exactly how to apply this holding. For example, some cases found that the Doe
decision not only limited statutory immunities, but prevailed over the public duty rule to create a duty
on the part of a governmental entity not to engage in willful and wanton conduct. See, e.g., Ozik v.
Gramins, 345 Ill. App. 3d 502, 515 (2003); Fatigato v. Village of Olympia Fields, 281 Ill. App. 3d
347, 356-57 (1996). Our supreme court attempted to address some of these issues by interpreting
the Doe decision as a very fact-specific application of section 2–202 to section 4–102 in DeSmet.
DeSmet, 219 Ill. 2d at 519-20. Nevertheless, subsequent appellate court decisions have continued
to grapple with exactly how the Doe decision should either be applied or distinguished. See Anthony
v. City of Chicago, 382 Ill. App. 3d 983 (2008); Bowler v. City of Chicago, 376 Ill. App. 3d 208(2007); Ware, 375 Ill. App. 3d at 574.
Indeed, but for a very recent decision of our supreme court, we would be forced to undertake
a similar analysis in this case. However, our supreme court has recently brought significant and
much-needed clarity to these issues in Ries v. City of Chicago, No. 109541 (Ill. Feb. 25, 2011), pet.
for reh’g pending.
In Ries, a city of Chicago police officer placed Demario Lowe in the backseat of a squad
-16-
No. 1-08-1653
car–leaving him unsupervised–after Lowe had reportedly fled the scene of an accident. Ries, slip op.
at 2. Lowe soon managed to gain control of the police car and drove off. Other police officers
initiated a pursuit of Lowe, and Lowe ultimately collided with a vehicle occupied by the plaintiffs and
injured them. Id. The plaintiffs sued the City alleging willful and wanton conduct and obtained a
judgment against the City, and the City‘s motion for judgment notwithstanding the verdict was
subsequently denied. The City appealed, and both this court and our supreme court agreed that the
City’s posttrial motion should have been granted pursuant to section 4–106(b) of the Tort Immunity
Act. Id. at 1-2.
In reaching this decision, our supreme court first held that Lowe was an escaping prisoner
and, therefore, the case properly implicated section 4–106(b) of the Tort Immunity Act. Id. at 8-10
(providing that neither a local public entity nor a public employee is liable for an injury inflicted by
an escaped or escaping prisoner (citing 745 ILCS 10/4–106(b) (West 2008))). The court then noted
that section 4–106(b) provides absolute immunity, and then rejected any argument that section 2–202,
and its limit on immunity for willful and wanton conduct, prevailed over the blanket immunity
provided by section 4–106(b). Id. The court found that “both section 2–202 and section 4–106(b)
potentially apply to the facts of this case. However, section 4–106(b), the more specifically applicable
immunity, controls.” Id. at 12. The court reasoned:
“Here, section 4–106(b) deals specifically with immunity for injuries inflicted
by escaping prisoners, while section 2–202 is a general section applying to immunity
for acts or omissions in the execution or enforcement of any law. Thus, even if we
were to conclude that section 2–202 applies here, it could not prevail over section 4–
-17-
No. 1-08-1653
106(b), which applies more specifically and contains no exception for willful and
wanton misconduct.” Id. at 13.
However, not only did the supreme court specifically find that section 2–202 did not prevail
over section 4–106(b), it also explicitly overruled its prior decision in Doe and found that section
2–202 does not provide a willful and wanton exception to any of the other sections of the Tort
Immunity Act. Id at 13-18. The court noted that the Doe decision had been consistently called into
question by subsequent decisions finding that statutory immunities extend to willful and wanton
conduct unless the legislature specifically states otherwise. Id. In the end, the court stated that “[i]t
is time for this court to acknowledge the obvious. Given that Doe's legal underpinning has been
consistently repudiated by this court, there is simply no longer any reason to try to either apply or
distinguish that case. *** Because Doe's holding that section 2–202 provides a general willful and
wanton exception to the immunities otherwise provided by the Tort Immunity Act is no longer good
law, we will not read a willful and wanton exception into section 4–106(b).” Id. at 18.
To summarize, the above review reveals a number of important principles relevant to this
appeal. First, this state continues to recognize the common law public duty rule that a governmental
entity generally owes no duty to provide an individual citizen with specific municipal services. We
also continue to recognize a special duty exception to the public duty rule, but this exception applies
only in cases where the legislature has not provided a specific governmental immunity. Furthermore,
statutory immunities provided by the Tort Immunity Act extend to allegations of willful and wanton
conduct unless the legislature has specifically indicated otherwise. Finally, section 2–202 does not
provide an exception to the immunities provided in other sections of the Tort Immunity Act and will
-18-
No. 1-08-1653
not prevail where other, more specific, immunities apply.
D. The City’s Motion for Summary Judgment Was Properly Granted
With the foregoing principles in mind, we can now properly address plaintiff’s specific
arguments. On appeal, plaintiff’s brief presents several reasons why the trial court’s award of
summary judgment in favor of the City was improper. It must be noted, however, that the initial
briefing in this case concluded before our supreme court’s decision in Ries, and plaintiff therefore did
not have the benefit of that decision in framing the issues on appeal. A simple comparison of the
issues raised in plaintiff’s brief and the Ries decision is enough to determine that many of the
arguments are no longer viable. See Aleckson v. Village of Round Lake Park, 176 Ill. 2d 82, 86
(1997) (when a court issues an opinion, the decision is generally presumed to apply both retroactively
and prospectively).
Nevertheless, the City was granted leave to cite Ries as additional authority before this court,
and the plaintiff has now had an opportunity to respond to Ries both in writing and at oral argument.
While we therefore briefly summarize those arguments plaintiff has presented in the interest of clarity,
we need only fully address those issues which, in light of Ries and the other case law cited above, are
dispositive.
1. Duty
To begin with, plaintiff’s brief asserts a number of reasons why the City did in fact owe her
a duty. First, she asserts that the public duty rule is not applicable here because her assertions are not
predicated on the City’s failure to protect her generally, but on “its own affirmative actions in creating
and exacerbating the dangerous condition” that caused her injuries. She also argues that, in any case,
-19-
No. 1-08-1653
the recognized exception to the public duty rule applies here because she adequately established the
“control” element of the special duty doctrine. Plaintiff further contends that the Doe decision and
its progeny specifically provide a cause of action against a governmental unit for actions that are, as
alleged here, willful and wanton. Lastly, she argues that the City took control over the repairs at the
Summerdale building and, therefore, it voluntarily assumed a duty to her to ensure that those repairs
were properly completed.
To the extent that plaintiff asserts that the City had a duty to refrain from willful and wanton
conduct, a duty that prevailed over the public duty rule and any statutory immunities, that argument
cannot survive Ries. Our supreme court has now specifically overruled Doe, as well as those cases
which interpreted Doe as supporting such a position. Ries, slip op. at 18 (overruling, for example,
Ozik). Similarly, any assertion that the special duty exception would allow her to overcome both the
public duty rule and any immunities provided by the Tort Immunity Act is unpersuasive in light of
the decisions in Harinek and Zimmerman. Harinek, 181 Ill. 2d at 346-47; Zimmerman, 183 Ill. 2d
at 46. Furthermore, we note that the public duty rule remains a viable and significant hurdle to any
attempt to establish that the City owed plaintiff a duty here.
Plaintiff is therefore now limited to contending that the City owed her a duty because: (1) the
public duty rule is somehow inapplicable to the alleged conduct here and the City was otherwise liable
on the same basis as any private tortfeasor; (2) she has established the elements of the special duty
exception to the public duty rule and no statutory immunity applies; or (3) the City voluntarily
assumed a duty. Ultimately, we need not further consider these arguments.
As we explain below, we find that the Tort Immunity Act fully immunizes the City from
-20-
No. 1-08-1653
plaintiff’s allegations. Any further discussion of the special duty exception is irrelevant, therefore,
in light of our supreme court’s determination that the exception simply does not apply when the
legislature has granted an immunity. Harinek, 181 Ill. 2d at 347. Furthermore, any number of prior
decisions have declined to fully address the issue of duty in this context, where the issue of immunity
proves dispositive. See DeSmet, 219 Ill. 2d at 509; Anthony, 382 Ill. App. 3d at 988; Bowler, 376
Ill. App. 3d at 218. Because immunity is similarly dispositive here, we turn to the analysis of that
issue.
2. Immunity
With respect to the issue of immunity, plaintiff’s brief first asserts that neither of the specific
Tort Immunity Act sections relied upon by the City (sections 2–105 and 2–207) extend to the
affirmative willful and wanton conduct that forms the basis of her claim. Furthermore, she argues that
the Doe decision establishes that section 2–202 must be read in connection with these other Tort
Immunity Act sections, and section 2–202 specifically allows her to recover for the willful and wanton
conduct alleged here. Finally, plaintiff contends that, under any circumstances, sections 2–105 and
2–207 are inapplicable here because the allegedly wrongful conduct was not part of the “inspection”
process immunized therein. As above, a number of these arguments are no longer viable.
The purpose of the Tort Immunity Act is "to protect local public entities and public employees
from liability resulting from the operation of government." Ware, 375 Ill. App. 3d at 577-78. When
interpreting a provision of the Tort Immunity Act, "our primary goal is to ascertain and give effect
to the intention of the legislature. We must seek the legislative intent primarily from the language
used in the Tort Immunity Act." Barnett, 171 Ill. 2d at 388. When an immunity provision "is clear
-21-
No. 1-08-1653
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." DeSmet,
219 Ill. 2d at 510.
Section 2–105 of the Tort Immunity Act provides:
"A local public entity is not liable for injury caused by its failure to make an
inspection, or by reason of making an inadequate or negligent inspection, of any
property, other than its own, to determine whether the property complies with or
violates any enactment or contains or constitutes a hazard to health or safety." 745
ILCS 10/2–105 (West 2008).
Section 2–207 provides the same protections for employees of public entities, stating:
"A public employee is not liable for an injury caused by his failure to make an
inspection, or by reason of making an inadequate or negligent inspection, of any
property, other than that of the local public entity employing him, for the purpose of
determining whether the property complies with or violates any enactment or contains
or constitutes a hazard to health or safety.” 745 ILCS 10/2–207 (West 2008).
Obviously, neither of these sections contain language specifically addressing willful and
wanton conduct. However, our supreme court has repeatedly held that where a statutory immunity
provision unambiguously does not contain an exception for willful and wanton conduct, the courts
should not read such an exception into the provision. Ries, slip op. at 8-10; Barnett, 171 Ill. 2d at
391-92; In re Chicago Flood Litigation, 176 Ill. 2d at 196; Harinek, 181 Ill. 2d at 347; Henrich, 186
Ill. 2d at 394-95. While our supreme court has not specifically addressed this question with respect
-22-
No. 1-08-1653
to the sections 2–105 and 2–207 of the Tort Immunity Act, this court has previously relied upon this
reasoning to find that these sections also provide blanket immunity. Ware, 275 Ill. App. 3d at 583.
In Ries, the supreme court cited Ware approvingly for this reasoning. Ries, slip op. at 12-13. We
therefore see no reason to abandon Ware, and find that section 2–105 and 2–207 grant the City
immunity for allegations of willful and wanton conduct.
Furthermore, plaintiff’s argument that section 2–202 of the Tort Immunity Act limits this
immunity is clearly no longer tenable. As Ries has now made clear, Doe has been overruled, section
2–202 does not provide an exception to other, broader statutory immunities, and section 2–202 is not
relevant where more specific statutory immunities apply. Id. at 18. Again, we note that the supreme
court cited Ware’s conclusion that 2–202 did not prevail over sections 2–105 and 2–207 in its
analysis. Id. at 12-13. Thus, sections 2–105 and 2–207 of the Tort Immunity Act, and not section
2–202, apply in this case.
Thus, the only issue that remains to be addressed is plaintiff’s contention that the immunities
provided by sections 2–105 and 2–207 are inapplicable here because the City’s allegedly wrongful
conduct was not part of the “inspection” process. Specifically, plaintiff contends that the allegations
of the City’s wrongful conduct instead involved: (1) affirmatively directing Roe to undertake specific
work regarding the handrails; (2) ordering a work stoppage and threatening arrest if further work was
undertaken when the City’s inspectors lacked lawful authority and at a time when the staircase lacked
hand or side rails; and (3) ordering Roe to place yellow caution tape on the stairway. In total, these
actions created an even more dangerous situation and were therefore outside the scope of the section
2–105 and section 2–207 immunities for improper inspections.
-23-
No. 1-08-1653
Courts have previously rejected similar contentions. For example, in Ries the court rejected
the argument that the immunity provided by section 4–106(b) of the Tort Immunity Act did not cover
the conduct of the police officers involved in the accident causing the plaintiffs’ injuries. Id. at 10-11.
The court held that this argument was “mere semantics designed to avoid a clearly applicable
immunity” and accepting such a position could render section 4–106(b) a nullity. Id. at 11. The
court reasoned as follows:
“We also assume that the legislature realized that any escaping-prisoner situation
would involve pursuit by law enforcement officers. The legislature chose not to focus
on the conduct of law enforcement officials in enacting this section, but rather worded
it broadly to provide immunity for all injuries inflicted by escaping prisoners.
Plaintiffs' injuries were inflicted by an escaping prisoner, and they cannot avoid section
4-106(b) by arguing that their case was really about something else.” Id.
Appellate courts in this state have adopted similar reasoning with respect to the Tort
Immunity Act provisions at issue here. In Pouk v. Village of Romeoville, 405 Ill. App. 3d 194, 196
(2010), the court was faced with allegations that the village improperly failed to advise a landowner
that further actions would be necessary to resolve certain code violations and failed to institute court
proceedings to compel enforcement with the village’s ordinances. Nevertheless, the court found that
the immunity provided by section 2–105 protected the village from liability for these allegations. Id.
at 198.
In Ware, this court addressed an attempt to hold the city of Chicago liable for injuries
sustained in a porch collapse. Ware, 375 Ill. App. 3d at 575. Among the allegations against the City,
-24-
No. 1-08-1653
the plaintiffs asserted that the City improperly failed to train or employ qualified inspectors, failed to
ensure that its building code standards were followed, and failed to “end personal relationships with
building owners that permitted custom and practice of passing noncompliant buildings as compliant.”
(Internal quotation marks omitted.) Id. at 576. The court found that all of the plaintiffs’ allegations
were subject to the immunities provided in the Tort Immunity Act, including sections 2–105 and
2–207. Id. at 582.
Finally, in Rascher v. City of Champaign, 262 Ill. App. 3d 592, 593 (1994), a fire caused the
death of a resident of a Champaign Housing Authority property. The decedent’s executor brought
suit against the city of Champaign, asserting that prior to the fire the city had inspected the property,
found certain hazards, but had negligently failed to advise the housing authority of those hazards.
Id. at 596. The city claimed it was immune from this allegation pursuant to section 2–105, and the
plaintiff countered by asserting that section 2–105 “provides no immunity for negligent failure to warn
of hazards once discovered.” Id. The court agreed with the city, reasoning:
“The inspection process consists of examining the property, determining whether
hazards exist, and determining what notice should be given to the appropriate
authorities. The determination whether a condition is a hazard cannot be separated
from the determination whether a condition is a hazard sufficient to justify a warning.
It would be impossible to delineate in the statute each conceivable act of negligence
and to specifically immunize each one.” Id.
We agree with the reasoning expressed in the above decisions and find that the City is immune
under sections 2–105 and 2–207. By their very terms, sections 2–105 and 2–207 apply to
-25-
No. 1-08-1653
“inadequate or negligent” inspections. As explained above, they also extend to willful and wanton
conduct associated with that activity. Prior decisions have explicitly applied these sections to acts
or omissions beyond plaintiff’s proposed narrow definition of an “inspection,” and we see no reason
why sections 2–105 and 2–207 should not apply to the conduct alleged here. It must be remembered
that all of plaintiff’s assertions of wrongdoing were allegedly committed by City inspectors while at
the Summerdale building for the purposes of conducting inspections. Just as in Rascher, we do not
believe that the legislature was required to delineate every conceivable act that is a part of the
inspection process and specifically immunize each one. Id. at 596. Moreover, we will not allow
plaintiff to avoid the immunities provided by sections 2–105 and 2–207 by arguing that her case “was
really about something else.” Ries, slip op. at 11.
III. CONCLUSION
For the foregoing reasons, we hold that, under sections 2–105 and 2–207 of the Tort
Immunity Act, the City is immune from liability in this case. While plaintiff’s brief also addresses the
potential impact of sections 2–103 and 2–205 of the Tort Immunity Act, the City has indicated its
belief that those immunities are no longer relevant because plaintiff has not continued to rely upon
the specific allegations to which those sections would apply. Because we have found that sections
2–105 and 2–207 provide the City with complete immunity to plaintiff’s allegations, we need not
further address these issues. See DeSmet, 219 Ill. 2d at 509; Anthony, 382 Ill. App. 3d at 988. The
circuit court's award of summary judgment in favor of the City is therefore affirmed.
Affirmed.
-26-
No. 1-08-1653
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
REBECCA HESS,
Plaintiff-Appellant,
v.
RONALD FLORES, Individually and d/b/a Flores Properties Inc., CHARLOTTE K. FLORES, a/k/a Charlotte K.
Klink,
Defendants
(The City of Chicago,
Defendant-Appellee).
-27-
No. 1-08-1653
Appellate Court of Illinois
First District, FIRST DIVISION
March 31, 2011
JUSTICE ROCHFORD delivered the opinion of the court:
HALL, P.J., and HOFFMAN, J., concur with the judgment and the opinion.
Appeal from the
Circuit Court of Cook County
Elizabeth Budzinski,
Judge Presiding
Counsel for Plaintiff-Appellant:
Law Offices of Jeffrey Neslund
150 N. Wacker Drive, Ste. 2450
Chicago, Illinois 60606
Jeffrey Neslund
OF COUNSEL
Delgado Adams Robertson & Tiernan, P.C.
53 West Jackson Boulevard
Chicago, Illinois 60604
Robert Robertson
OF COUNSEL
Counsel for Defendant-Appellee:
Corporation Counsel of the City
30 North LaSalle Street, Ste. 800
Chicago, Illinois 60602
Chief Asst. Corporation Counsel
Myriam Zreczny Kasper
OF COUNSEL
Masterslaw
7115 West North Avenue, #296
Oak Park, Illinois 60302
Ruth F. Masters
OF COUNSEL