Pouk v. Village of Romeoville ( 2010 )


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  •                          No. 3--09--1008
    _________________________________________________________________
    Filed October 29, 2010
    IN THE
    APPELLATE COURT OF ILLINOIS
    THIRD DISTRICT
    A.D., 2010
    MARIE POUK, Individually and  )    Appeal from the Circuit Court
    as Special Administratrix for )    of the 12th Judicial Circuit
    the Estate of Christine Jane  )    Will County, Illinois
    Jungkans, Deceased,           )
    )
    Plaintiff-Appellant,     )
    )
    v.                       )
    )    No. 08--L--444
    THE VILLAGE OF ROMEOVILLE,    )
    )
    Defendant-Appellee       )
    )
    (Gregory D. Gotches and Sybert)
    Landscaping, Inc.,            )    Honorable
    )    Michael J. Powers
    Defendants).             )    Judge, Presiding
    _________________________________________________________________
    JUSTICE LYTTON delivered the opinion of the court:
    _________________________________________________________________
    Plaintiff, Marie Pouk, filed a complaint against the Village
    of Romeoville, alleging willful and wanton conduct.               The Village
    filed   a   motion   to   dismiss,   arguing   that   it   was    immune   from
    liability pursuant to the Local Governmental and Governmental
    Employees Tort Immunity Act (Act) (745 ILCS 10/1-101 et seq.
    (West 2006)).    The trial court granted the motion.             We affirm.
    On May 9, 2008, plaintiff’s daughter, Christine Jungkans,
    was driving north on Hale Avenue in the Village.                      After stopping
    at a stop sign at the intersection of Hale Avenue and 135th
    Street, Jungkans proceeded to make a left turn onto 135th Street.
    At the same time, Tomasz Maciaszek was driving east on 135th
    Street,     approaching     its   intersection         with    Hale    Avenue.     As
    Jungkans     turned    onto     135th     Street,      Maciaszek’s      vehicle   hit
    Jungkans’ vehicle and killed her.
    In   July    2009,     plaintiff        filed   a   three-count     complaint
    against the Village, Gregory D. Gotches and Sybert Landscaping,
    Inc.    The counts against Gotches and Sybert Landscaping alleged
    negligence.        The count against the Village alleged willful and
    wanton conduct.        The claim against the Village is the only one
    relevant to this appeal.            The following facts are taken from
    plaintiff’s complaint.
    Gregory Gotches owns property at the southwest corner of the
    intersection of Hale Avenue and 135th Street in the Village.
    There are bushes located on the northeast portion of Gotches’
    property.     In the fall of 2007, the Village was notified by a
    resident that the bushes on Gotches’ property obstructed the view
    of drivers turning left from Hale Avenue onto 135th Street.                       On
    November 24, 2007, a Village representative inspected Gotches’
    property     and    determined    that     the     bushes     violated    a   village
    ordinance governing intersection visibility.                   The Village served
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    a notice of code violation on Gotches on November 24, 2007.                              The
    notice required Gotches to take action before December 1, 2007.
    After    receiving      the     notice,      Gotches’     wife     contacted      the
    Village and asked what she needed to do to correct the problem.
    An employee from the Village code enforcement division gave her
    the    name    of    several    landscaping          companies,     including       Sybert
    Landscaping.          Mrs.    Gotches       contacted     Sybert    Landscaping,         and
    Sybert agreed to trim the bushes.                   Sybert trimmed the bushes and
    told   the     Gotches       that    they    no     longer   obstructed      motorists’
    vision.        After    the    trimming       was    complete,     the    Village       sent
    Gotches another letter indicating that the violation had not been
    abated.         Thereafter,         Mrs.     Gotches      informed        Village       code
    enforcement         officer    Cliff    McChesney        that    Sybert    had    already
    trimmed the bushes.           McChesney told Mrs. Gotches that he thought
    that the bushes could be trimmed further.                        However, he said he
    would ask his supervisor and let Mrs. Gotches know if further
    action was necessary.           Neither McChesney nor anyone else from the
    Village ever contacted Gotches or his wife after that.
    Plaintiff’s complaint alleges that the bushes on Gotches’
    property       violated       two    sections       of   the     Village’s       code     of
    ordinances       that     prohibit       bushes       from      being     located       near
    intersections so as to obstruct motorists’ views.                        See Village of
    Romeoville, Illinois Code of Ordinances app. A, §§ 159.014(G),
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    159.030(D)(4)(q) (adopted February 7, 2007, and February 1, 2006,
    respectively).       The complaint further alleges that the Village
    committed willful and wanton conduct by (1) failing to advise
    Gotches    whether    more     trimming       was   necessary    when   McChesney
    promised to do so, (2) failing to institute court proceedings
    against Gotches to compel enforcement with its ordinance, (3)
    failing to notify Gotches that a volunteer service could remedy
    the obstruction, (4) recommending that the problem be fixed by
    Sybert Landscaping, and (5) failing to advise Gotches that more
    trimming was necessary.
    The   Village     filed    a   motion     to   dismiss     pursuant   to   (1)
    section 2-615 of the Code of Civil Procedure (Code) (735 ILCS
    5/2-615 (West 2006)) for failure to state a claim and (2) section
    2-619 of the Code (735 ILCS 5/2-619 (West 2006)), asserting that
    it was immune from liability under sections 2-103, 2-105 and 2-
    106 of the Act (745 ILCS 10/2-103, 2-105, 2-106 (West 2006)).
    The trial court granted the motion and dismissed the complaint
    with prejudice pursuant to section 2-619 of the Code.
    ANALYSIS
    Plaintiff argues that section 2-202 of the Act, rather than
    sections 2-103, 2-105 and 2-106, applies to the allegations of
    her complaint.       Section 2-202 of the Act, unlike sections 2-103,
    2-105, and 2-106, does not immunize willful and wanton conduct.
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    Because her complaint alleges willful and wanton conduct, she
    contends that the trial court erred in dismissing her action
    against the Village.
    In 1965, the legislature enacted the Local Governmental and
    Governmental Employees Tort Immunity Act to protect local public
    entities and public employees from liability resulting from the
    operation of government.          Anthony v. City of Chicago, 382 Ill.
    App. 3d 983, 987, 
    888 N.E.2d 721
    , 725 (2008).        The purpose of the
    Act is to ensure that public funds are not dissipated by private
    damage awards.     
    Anthony, 382 Ill. App. 3d at 987
    , 888 N.E.2d at
    725.
    When   interpreting   an    immunity   provision,   a   court   must
    ascertain and give effect to the legislature’s intent by relying
    on the language used in the Act, construing each word in its
    context and ensuring that no term is rendered superfluous or
    meaningless.     Ware v. City of Chicago, 
    375 Ill. App. 3d 574
    , 581,
    
    873 N.E.2d 944
    , 951 (2007).          The legislature has the exclusive
    authority to extend the existing immunities; therefore, where the
    language of the immunity is clear and unambiguous, we may not
    read into it exceptions, limitations or conditions not expressly
    described by the plain language of the immunity.           Ware, 375 Ill.
    App. 3d at 
    581-82, 873 N.E.2d at 951
    .
    Section 2-103 of the Act provides that "[a] local public
    5
    entity is not liable for an injury caused by *** failing to
    enforce any law."         745 ILCS 10/2-103 (West 2006).               Section 2-105
    immunizes   a   local      public       entity   for    injuries      caused    by    its
    failure to make an inspection or making an inadequate inspection
    of property.        745 ILCS 10/2-105 (West 2006).                    Section 2-106
    grants    immunity    to       local    public    entities     for    negligent        and
    intentional oral promises or misrepresentations.                      745 ILCS 10/2-
    106 (West 2006).      Those sections do not contain an exception for
    willful and wanton conduct.              Bowler v. City of Chicago, 376 Ill.
    App. 3d 208, 214, 
    876 N.E.2d 140
    , 145 (2007); 745 ILCS 10/2-106
    (West 2006).
    Section      2-202    immunizes       public      employees     for   an   act     or
    omission "in the execution or enforcement of any law unless such
    act or omission constitutes willful and wanton conduct."                               745
    ILCS 10/2-202 (West 2006).               Section 2-202 applies when a public
    employee performs some negligent act while engaged in a course of
    conduct    designed       to    carry    out     or    put   into    effect     a     law.
    Fitzpatrick v. City of Chicago, 
    112 Ill. 2d 211
    , 221, 
    492 N.E.2d 1292
    , 1296 (1986).         The required elements that a plaintiff must
    establish   for    the     application      of    section     2-202    are:     (1)    the
    municipality was aware of the particular danger or risk to which
    the plaintiff is exposed; (2) specific acts or omissions by a
    municipal employee occurred; (3) the specific acts were willful
    6
    in nature; and (4) the injury occurred while the plaintiff was
    under the direct and immediate control of municipal employees.
    
    Ware, 375 Ill. App. 3d at 584
    , 873 N.E.2d at 953.
    Ordinarily, the determination of whether a public employee
    is enforcing a law is a question of fact that must be determined
    by the trier of fact in light of the circumstances in each case.
    Lacey v. Village of Palatine, 
    232 Ill. 2d 349
    , 367, 
    904 N.E.2d 18
    , 28     (2009).     However,    a   court   may,   as   a    matter   of   law,
    determine whether a public employee is enforcing a law when the
    facts alleged support only one conclusion.             
    Lacey, 232 Ill. 2d at 367
    , 904 N.E.2d at 28.
    Several courts have considered whether section 2-202, rather
    than   sections      2-103   and   2-105,   apply     to   public    employees’
    conduct.     See Anthony, 
    382 Ill. App. 3d 983
    , 
    888 N.E.2d 721
    ;
    Ware, 
    375 Ill. App. 3d 574
    , 
    873 N.E.2d 944
    ; Bowler, 
    376 Ill. App. 3d
    208, 
    876 N.E.2d 140
    .        Those cases make clear that in order to
    fall within the ambit of section 2-202, a complaint must allege
    that the plaintiff’s injury occurred while public employees were
    in the course of putting into effect a law.                    See 
    Anthony, 382 Ill. App. 3d at 993
    , 888 N.E.2d at 730; 
    Ware, 375 Ill. App. 3d at 583-84
    , 873 N.E.2d at 952-53; Bowler, 
    376 Ill. App. 3d
    at 
    216-17, 876 N.E.2d at 146-47
    .
    When a complaint alleges that public employees were doing
    7
    nothing at the time of an injury, sections 2-103 and 2-105,
    rather than section 2-202, apply.                  Bowler, 
    376 Ill. App. 3d
    at
    
    216-17, 876 N.E.2d at 146-47
    .                  Furthermore, where a plaintiff
    alleges that a public employee took some action to enforce a law
    but then stopped and an injury occurred thereafter, section 2-202
    is inapplicable.        
    Anthony, 382 Ill. App. 3d at 993
    , 888 N.E.2d at
    730.
    Here,    plaintiff’s       complaint       alleges     that      the    Village,
    through its employees, failed to instruct Gotches to trim his
    bushes further and failed to enforce its intersection visibility
    ordinance.      Such allegations suggest that the Village failed to
    act and fall squarely within sections 2-103 and 2-105.                              See
    Bowler, 
    376 Ill. App. 3d
    at 
    216-17, 876 N.E.2d at 146-47
    .                          While
    the     complaint      alleges      that        Village      employees        undertook
    enforcement of the Village ordinance in November and December of
    2007,    Village      employees    were        doing    nothing    to    enforce    the
    ordinance      five    months     later    when        Jungkans’   death      occurred.
    Because Village employees were not in the course of putting into
    effect any law at the time of plaintiff’s injury, section 2-202
    does not apply.        See 
    Anthony, 382 Ill. App. 3d at 993
    , 888 N.E.2d
    at 730; 
    Ware, 375 Ill. App. 3d at 583-84
    , 873 N.E.2d at 952-53;
    Bowler, 
    376 Ill. App. 3d
    at 
    216-17, 876 N.E.2d at 146-47
    .
    The trial court properly found that sections 2-103 and 2-105
    8
    of   the   Act    apply       based    on       the   allegations      contained   in
    plaintiff’s      complaint.           Those      sections   do   not     contain   an
    exception for willful and wanton conduct.                   See Bowler, 376 Ill.
    App. 3d    at    
    214, 876 N.E.2d at 145
    .    Thus,   the    trial   court
    properly dismissed plaintiff’s action against the Village.
    CONCLUSION
    The order of the circuit court of Will County is affirmed.
    Affirmed.
    CARTER and SCHMIDT, JJ., concur.
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