Calloway v. Kinkelaar , 168 Ill. 2d 312 ( 1995 )

JUSTICE McMORROW

delivered the opinion of the court:

In this case we determine whether the Domestic Violence Act of 1986 (the Act) permits a cause of action for damages in favor of persons protected by the Act whose injuries are alleged to have been caused by the willful and wanton misconduct of police officers in performing or failing to perform the affirmative obligations imposed on them by the Act.

BACKGROUND

Plaintiff, Helen Calloway, filed a four-count complaint in the circuit court of Effingham County against the sheriff of Effingham County, Arthur Kinkelaar, and the County of Effingham seeking to recover damages for injuries she sustained as a result of defendants’ alleged willful and wanton or negligent failure to comply with certain provisions of the Illinois Domestic Violence Act of 1986 (750 ILCS 60/101 et seq. (West 1992)). The complaint pleads one count of willful and wanton conduct and one count of negligence against each defendant.

The complaint alleges that during plaintiffs marriage to Michael Calloway, he engaged in a physically and mentally abusive course of conduct toward her and her children, including threats to kill her and to kill himself. Based on Calloway’s conduct, plaintiff was granted an emergency order of protection on March 13, 1991, and a plenary order of protection on March 20, 1991. After the court entered these orders, the sheriff personally served them upon Michael Calloway. Plaintiff alleges that the sheriff knew or should have known of the terms of the orders of protection, which prohibited the following conduct: harassment or interference with the liberty of plaintiff or her children, entering plaintiff’s place of employment, telephoning her at her workplace, and entering or remaining at the home of plaintiffs parents.

On April 4, 1991, beginning at approximately 5:30 a.m., Michael Calloway violated the order of protection by making threatening telephone calls to plaintiff at her workplace, including a threat to kill himself in front of plaintiff and their five-year-old daughter if she did not come to the marital home to pick up the daughter. Plaintiff called her father to ask him to pick up the child. Immediately thereafter, Michael Calloway telephoned plaintiff at work again. During this conversation plaintiff informed him that her father was going to pick up their daughter. Calloway threatened to kill plaintiffs father if he entered the marital residence. Plaintiff then telephoned the Effingham County sheriffs department to report the threatening calls. Plaintiff told the dispatcher that her husband was armed with a gun and that their child was with him. She gave the dispatcher the location of the home, and also told the dispatcher she was going there herself to ensure the safety of her daughter.

At approximately 6 a.m., the sheriff was notified by his office of the threats reported by plaintiff. In response, the sheriff travelled to the marital residence. He briefly observed the house and then drove off, without further investigation.

Plaintiff returned to work after determining that her daughter and father were not at the marital home. Shortly thereafter she received additional threatening calls from Michael Calloway. He told plaintiff he had seen the sheriff’s car in front of the house.

At approximately 7:30 a.m., the dispatcher from the sheriff’s department telephoned plaintiff and asked whether she had gone to the marital home. Plaintiff responded that she had and that her daughter was safe, but that defendant was continuing to make threatening telephone calls to her at work. Plaintiff also emphasized to the dispatcher that Michael Calloway was in violation of the orders of protection. The dispatcher acknowledged her awareness of the order, saying that she had a copy of it in front of her.

At approximately 7:50 a.m., the sheriff department’s dispatcher again called plaintiff and told her that officers within the department were advising plaintiff to call her attorney and ask him what should be done. Approximately 10 minutes later, Michael Calloway, armed with a gun, entered the restaurant in which his wife was working and went to the kitchen, where he found plaintiff. He grabbed her by the hair and forced her to leave with him, at gunpoint. She was forced to drive his pickup truck.

At 8:39 a.m., a law enforcement officer saw the pickup truck and followed it. Within minutes, State troopers, acting in accordance with orders, blocked the road in front of Michael Calloway’s pickup truck. As the truck stopped, plaintiff jumped out and concealed herself behind one of the parked squad cars. Michael Calloway stayed inside the truck, where troopers at the scene found him with a self-inflicted gunshot wound to the chest.

As a result of defendants’ alleged breaches of duty, plaintiff claims that she has sustained extreme emotional distress and trauma, requiring her to undergo psychological counseling and causing her to sustain significant financial losses.

The above allegations form the factual basis for all four counts of the complaint. Counts I and II are directed against the sheriff individually and counts III and IV are directed against the county under a theory of respondeat superior. The legal basis for counts I and III is the alleged willful and wanton violation of statutory duties found in the Domestic Violence Act. Counts II and IV allege negligent violations of the Act.

Defendants filed a motion to dismiss the complaint pursuant to section 2—619 of the Code of Civil Procedure (735 ILCS 5/2—619 (West 1992)), arguing that defendants owed plaintiff no actionable duty and therefore she failed to state a cause of action. In support, defendants invoked the common law public duty doctrine, under which municipalities and officers are immunized from liability for failing to supply police protection to specific individuals, as distinct from the public in general. Defendants further argued that the sole exception to this general rule of no liability is the special duty doctrine, which involves a multiple-factored test to determine whether, under a given set of circumstances, a police officer may be held liable to an injured plaintiff based on the officer’s undertaking of a special duty toward that individual. Defendants argued that the complaint could not withstand the motion to dismiss because plaintiff failed to adequately plead all of the elements of the special duty doctrine, specifically the requirement that the plaintiff was under the immediate and direct control of the officers at the time of her injury.

The trial court dismissed the entire complaint, with prejudice, for failure to state a cause of action. The appellate court affirmed the dismissal of the negligence counts but reversed the dismissal of counts I and III, which were premised on willful and wanton violations of duties imposed by the Domestic Violence Act. (261 Ill. App. 3d 63.) We allowed defendants’ petition for leave to appeal (145 Ill. 2d R. 315).

ANALYSIS

The ultimate issue for this court to determine is whether the well-pleaded allegations of plaintiff’s complaint are actionable under Illinois law. Defendants focus almost exclusively on common law and statutory principles of governmental immunity. According to defendants, plaintiff cannot state a cause of action pursuant to the Domestic Violence Act, even for willful and wanton misconduct, unless she first establishes the elements of the special duty exception to governmental immunity. Defendants also raise a challenge to the constitutionality of the special duty doctrine and request this court to abolish it.

The complaint alleges that "plaintiff was a person entitled to special protection pursuant to the provisions of [the Domestic Violence Act and Code of Criminal Procedure], and had been so found by virtue of the Emergency Order of Protection and Plenary Order of Protection ***.” Defendants, who knew that Michael Calloway was in violation of the orders of protection, had probable cause to arrest him pursuant to the Domestic Violence Act. In light of the information given to defendants regarding Calloway’s abuse, threats, and harassment of plaintiff, defendants had a duty under the statute to "immediately use all reasonable means to prevent further abuse and harassment, including *** [providing or arranging transportation for [pjlaintiff to a place of safety; *** [and] [arresting Michael Calloway.” The complaint further alleges that defendants breached their statutory duties by engaging in conduct that was willful and wanton and/or negligent. These acts or omissions included defendants’ failure to arrest or disarm Calloway in light of their knowledge of his threatening conduct, failure to arrange for plaintiff’s transportation to a safe place, and failure to initiate an investigation upon driving to Calloway’s home after being advised of the threats.

In deciding whether a complaint states a cause of action based on the negligent violation of a statute or ordinance, courts generally inquire whether the legislation in issue was designed to protect human life or property and, if so, whether the plaintiff is a member of the class intended to be protected. (E.g., Kalata v. Anheuser-Busch Cos. (1991), 144 Ill. 2d 425, 434.) This court also has recognized that tort liability may arise, on public policy grounds, for tortious conduct that would defeat the aims and goals of a particular statutory scheme. (See Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172 (penalizing employer’s retaliatory discharge of employee who filed worker’s compensation claim).) If the plaintiff is a member of the protected class and his or her injury is of the type that the statute was intended to protect against, the plaintiff may recover upon establishing that the defendant’s violation of the ordinance or statute proximately caused plaintiff’s injury. (Curtis v. County of Cook (1983), 98 Ill. 2d 158, 162.) A private remedy may be implied from a remedial statute where there is a clear need to effectuate the purpose of such statute (Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill. 2d 379, 389), even though no express remedy has been provided in the legislation (Sawyer, 89 Ill. 2d at 386, citing Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172).

In the case at bar, plaintiff’s complaint is premised on the provisions of the Domestic Violence Act of 1986, which the General Assembly intended to be "liberally construed and applied to promote its underlying purposes” (750 ILCS 60/102 (West 1992)). Section 102 sets forth the Act’s purposes: to "[r]ecognize domestic violence as a serious crime against the individual and society which *** promotes a pattern of escalating violence which frequently culminates in intra-family homicide” (750 ILCS 60/102(1) (West 1992)) and to "[r]ecognize that the legal system has ineffectively dealt with family violence in the past *** and has not adequately acknowledged the criminal nature of domestic violence; that, although many laws have changed, in practice there is still widespread failure to appropriately protect and assist victims” (750 ILCS 60/102(3) (West 1992)).

Of particular significance to the case at bar are two additional provisions of section 102, which state'the following as express purposes of the Act:

"(4) Support the efforts of victims of domestic violence to avoid further abuse by promptly entering and diligently enforcing court orders which prohibit abuse and, when necessary, reduce the abuser’s access to the victim ***.

(6) Expand the civil and criminal remedies for victims of domestic violence; including, when necessary, the remedies which effect physical separation of the parties to prevent further abuse.” (Emphasis added.) 750 ILCS 60/102(4), (6) (West 1992).

Under section 201, "[p]ersons protected by this Act” include "any person abused by a family or household member” (750 ILCS 60/201(a)(i) (West 1992)). In the case at bar there is no dispute that plaintiff is a person protected under the Act or that she obtained, in accordance with the procedures outlined in article II of the Act, an emergency and a plenary order of protection based on Michael Calloway’s abuse and harassment.

"Abuse” is defined as "physical abuse, harassment, intimidation of a dependent, interference with personal liberty.” (750 ILCS 60/103(1) (West 1992).) "Harassment” includes the following types of conduct, which unless "rebutted by a preponderance of the evidence *** shall be presumed to cause emotional distress”:

"(i) creating a disturbance at petitioner’s place of employment;

(ii) repeatedly telephoning petitioner’s place of employment, home or residence;

* * *

(vi) threatening physical force, confinement or restraint on one or more occasions.” 750 ILCS 60/103(6) (West 1992).

Article III of the Act enumerates the responsibilities of law enforcement officers, which include "mak[ing] an arrest without warrant if the officer has probable cause to believe that the person has committed or is committing any crime, including but not limited to violation of an order of protection, under Section 12—30 of the Criminal Code of 1961, even if the crime was not committed in the presence of the officer.” 750 ILCS 60/301(a) (West 1992).

Section 304 requires law enforcement officers to take specific steps to assist victims of abuse, as follows:

"Assistance by law enforcement officers, (a) Whenever a law enforcement officer has reason to believe that a person has been abused, neglected, or exploited by a family or household member, the officer shall immediately use all reasonable means to prevent further abuse, neglect, or exploitation, including:

(1) Providing or arranging transportation for the victim of abuse *** to a nearby place of shelter or safety, or *** providing or arranging for transportation for the victim to the nearest available circuit court judge or associate judge so the victim may file a petition for an emergency order ***;

(2) Accompanying the victim of abuse *** to his or her place of residence for a reasonable period of time to remove necessary personal belongings and possessions;

* * *

(5) Arresting the abusing, neglecting, or exploiting party where appropriate.” (Emphasis added.) 750 ILCS 60/304 (West 1992).

Section 305 limits law enforcement liability, as follows:

"Limited law enforcement liability. Any act of omission or commission by any law enforcement officer acting in good faith in rendering emergency assistance or otherwise enforcing this Act shall not impose civil liability upon the law enforcement officer or his or her supervisor or employer, unless the act is a result of willful or wanton misconduct.” (Emphasis added.) 750 ILCS 60/305 (West 1992).

The language of section 305 plainly intends that officers are not to be held civilly liable for mere negligence in the good-faith performance of their duties under the Act. However, the express limitation on liability does not apply if the act or omission in question is a result of "willful or wanton misconduct.” We believe that this partial immunity of law enforcement agents is a direct expression of legislative intent to reconcile the strongly worded purposes of the Act — primarily the protection of and assistance to victims of abuse — with the recognition that officers performing their legal duties should not be held civilly liable when their efforts to enforce the Act fall short, unless the conduct in question can be viewed as willful or wanton. Although the line between willful and wanton misconduct and simple negligence may be difficult to draw in some circumstances, it is hardly a new issue to the courts of this State. See Ziarko v. Soo Line R.R. Co. (1994), 161 Ill. 2d 267, 275 (observing that willful and wanton conduct is a hybrid between negligence and intentionally tortious behavior); cf. Burke v. 12 Rothschild’s Liquor Mart, Inc. (1992), 148 Ill. 2d 429 (noting qualitative distinction between willful and wanton acts committed intentionally and acts of simple negligence); see also Illinois Pattern Jury Instructions, Civil, No. 14.01 (3d ed. 1993) (defining willful and wanton conduct as meaning a course of action "which, if not intentional, shows an utter indifference to or conscious disregard” for the safety of oneself or others).

In Doe v. Calumet City (1994), 161 Ill. 2d 374, we considered allegations of negligent and willful and wanton police misconduct. According to the complaint, police officers refused to break down a door to rescue two young children who were locked in their apartment with a man who had broken in, threatened to rape and kill their mother, and then locked the mother out of the apartment while he brutalized the children. The supervising officer on the scene explained that he did not wish to take responsibility for the property damage that might occur in breaking down the door. This officer 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. We held that the allegations of willful and wanton acts were sufficient to create a jury question with respect to the liability of the municipality and the supervising officer at the scene.

In the case at bar, potential governmental liability derives from the statutory scheme created by the Domestic Violence Act, which identifies a specially protected class of individuals to whom statutorily mandated duties are owed. These duties are expressed in section 304, which states that law enforcement officers having reason to know of the abuse "shall immediately use all reasonable means to prevent further abuse,” including the arrest of the abuser and physically transporting the victim to safety. (Emphasis added.) (750 ILCS 60/304 (West 1992).) Furthermore, the Act expressly contemplates the expansion of civil and criminal remedies for abuse victims (750 ILCS 60/102(6) (West 1992)), subject to the limitation of liability expressed in section 305 of the Act. These provisions reveal the General Assembly’s intent to encourage active intervention on the part of law enforcement officials in cases of intrafamily abuse. The Act explicitly acknowledges the escalating nature of domestic violence and decries the failure of prior laws and enforcement efforts to effectively deal with family violence and to assist or protect victims of abuse. See 750 ILCS 60/102(1), (3) (West 1992).

To give effect to the legislature’s purposes and intent in enacting the Domestic Violence Act, we believe judicial recognition of a right of action for civil damages is necessary, provided that the injured party can establish that he or she is a person in need of protection under the Act, the statutory law enforcement duties owed to him or her were breached by the willful and wanton acts or omissions of law enforcement officers, and such conduct proximately caused plaintiff’s injuries. Courts in other jurisdictions have recognized causes of action arising out of violations of their statutory domestic violence laws. See Baker v. City of New York (1966), 25 A.D.2d 770, 269 N.Y.S.2d 515 (special duty owed to holder of order of protection); Jensen v. South Carolina Department of Social Services (S.C. App. 1988), 377 S.E.2d 102 (duty arising under abuse statutes); see also Coffman v. Wilson Police Department (E.D. Pa. 1990), 739 F. Supp. 257 (inferring that Pennsylvania law would recognize a special relationship between law enforcement officers and injured holder of order of protection under State abuse laws).

In the instant case, plaintiff alleges that defendants knew she was a person in need of protection under the Act and were aware that an order of protection had been entered based on the acts of Michael Calloway, and that on the morning of the incident, defendants were advised and informed of all facts necessary to take immediate action against Michael Calloway, including his arrest. Calloway’s violations of the order of protection continued over approximately 2¹h hours before he abducted his wife at gunpoint. During the hours before the kidnapping, Calloway telephoned plaintiff at her place of employment and threatened harmful and violent conduct, which potentially endangered her, the minor child, and plaintiff’s father. Although the sheriff’s dispatcher conveyed plaintiff’s pleas for help and the sheriff actually drove to Calloway’s home, the sheriff allegedly did nothing except briefly observe the house before driving off. Documents in the record indicate that the sheriff saw Calloway’s vehicle in the driveway but decided "not to wake up anyone” in the home at that hour. The sheriff did not attempt to speak to Calloway, investigate the situation further, arrest Calloway for violating the order of protection, or otherwise take reasonable steps to prevent further abuse and harassment. Instead, plaintiff was advised by the sheriff’s office to call her lawyer. Michael Calloway’s abusive and harassing conduct escalated when he freely entered plaintiff’s place of employment, a public restaurant, and kidnapped her, forcing her at gunpoint to drive away with him. Only after plaintiff’s abduction did law enforcement officials pursue Calloway’s vehicle and erect a road block.

Under the law, the well-pleaded allegations of a complaint are considered true for purposes of a motion to dismiss and all reasonable inferences from those facts must be drawn in favor of the plaintiff. (E.g., Doe, 161 Ill. 2d at 384.) In the case at bar, defendants were informed that Calloway had a gun and was making threats to plaintiff, but did nothing to enforce the order of protection or to intervene after being informed of Calloway’s continuing abuse. The Act imposed a duty upon defendants to promptly undertake all reasonable steps to assist plaintiff, a "person protected” by the Act, when they learned of Calloway’s threatening conduct and ongoing violation of the order of protection. Whether defendants breached this legal duty by willful and wanton misconduct that proximately caused plaintiffs injury is a question of fact for the jury to determine at trial. Although each situation will differ, we believe that plaintiff has sufficiently pleaded a claim under the Act. Accordingly, we affirm the appellate court’s reinstatement of those counts in plaintiffs complaint sounding in willful and wanton misconduct.

We also affirm dismissal of the two counts of the complaint sounding in negligence. Because the standard by which the breach of the statutory duty is to be judged is whether the officer’s conduct is willful or wanton, rather than merely negligent, the counts of plaintiffs complaint alleging negligent violations of the Act are necessarily precluded. The foregoing analysis of the statutory language and intent of section 305 of the Act supports the conclusion that the legislature unambiguously intended to limit the liability of law enforcement personnel to willful and wanton acts or omissions in enforcing the Act;

We acknowledge that defendants based their motion to dismiss the entire complaint on the ground that defendants were insulated from liability by the public duty doctrine, a common law immunity based on public policy. This doctrine of immunity applies to municipalities and police officers whose negligent performance of law enforcement duties may cause personal injuries. (See, e.g., Leone v. City of Chicago (1993), 156 Ill. 2d 33; Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501.) Defendants argued that plaintiffs cause of action was barred because her complaint did not satisfy the requisites of the special duty doctrine, which functions as an exception to the common law immunity (e.g., Huey v. Town of Cicero (1968), 41 Ill. 2d 361). We do not reach defendants’ arguments concerning general principles of governmental tort immunity because the Domestic Violence Act itself provides an express limitation of liability on the part of law enforcement officers and municipalities. Accordingly, we need look no further than the language and intent of the Act to ascertain whether and to what extent law enforcement officers in the performance of their statutory duties under the Act are immune from liability to plaintiffs injured by acts or omissions of such officers. Moreover, to the extent that defendants are asking this court to make the special duty doctrine part of plaintiffs burden of pleading a cause of action under the Domestic Violence Act, we note that nothing in the statutory language supports the implication of such a pleading requirement. The Domestic Violence Act confers a statutory duty upon municipalities and law enforcement officers, and such duty is owed to plaintiff as a person in need of protection under the Act. To recover damages arising out of breach of the duty, however, the plaintiff must establish that the conduct in issue was willful and wanton. In the instant case, plaintiff has pleaded viable causes of action in willful and wanton misconduct, but the negligence counts based on the violation of the same statutory duty are barred. Because plaintiff never pleaded or relied on the special duty doctrine as her basis for recovery, and because the complaint is premised on the provisions of the Domestic Violence Act, defendants’ contention that plaintiff failed to come within the special duty exception to the public duty immunity is legally irrelevant. We hold that the Act itself bars recognition of a cause of action sounding in ordinary negligence.

Moreover, in Doe v. Calumet City (1994), 161 Ill. 2d 374, we expressly noted that in cases involving allegations of willful and wanton misconduct, the special duty doctrine has no application. Like the willful and wanton provision of the Illinois Domestic Violence Act, the Tort Immunity Act by its own terms excludes willful and wanton conduct from its scope of immunity. Under the precedent of this court, plaintiff is not required to plead and prove the special duty exception to either the statutory immunities found in the Tort Immunity Act or the common law immunity known as the public duty doctrine. (See Leone, 156 Ill. 2d at 39; Doe, 161 Ill. 2d at 389 (observing that the "judicially created special duty exception and the statutory willful and wanton exception [are] separate and distinct exceptions to municipal and officer liability”).) Our precedent has therefore established that an actionable theory against municipalities for conduct of law enforcement agents can be stated (1) where the elements of the special duty doctrine are satisfied and the negligent breach of this special duty proximately caused plaintiff’s injuries; or (2) where the alleged conduct of the officers is willful and wanton and proximately caused plaintiff’s injury and the applicable statute allows recovery in those instances. See Doe, 161 Ill. 2d at 389.

Defendants also contend, for the first time on appeal, that the special duty doctrine is an unconstitutional infringement on the power of the legislature to define the scope of governmental immunity. Defendants reason that imposition of a special duty on municipalities and their employees contravenes the provisions of the Tort Immunity Act by permitting plaintiffs to sue governmental officials in simple negligence, whereas the Tort Immunity Act contemplates governmental liability only for willful and wanton conduct. Because the Illinois Constitution of 1970 conferred sole authority on the legislature to determine whether and to what extent a municipality and its agents will be deemed immune from liability, defendants argue that continued judicial recognition of the special duty doctrine violates our constitution.

Plaintiff does not address this argument in her brief because she contends that defendants waived the issue. She notes that defendants raise the constitutional issue for the first time in their appeal before this court. In the circuit court defendants relied on the immunity conferred by the common law public duty doctrine and argued that plaintiff’s failure to establish that she came within the special duty exception rendered her complaint fatally defective. In the appellate court defendants reiterated their legal arguments raised in the motion to dismiss, but did not challenge the constitutionality of the special duty doctrine.

We do not consider it an appropriate use of our supervisory authority to decide defendants’ constitutional challenge, an issue which is unnecessary to our disposition of the instant case. Moreover, as the constitutional argument was not raised in or decided by the circuit or appellate courts, we lack the benefit of a thoroughly researched and analyzed presentation of both sides of the issue. As this court held in Doe, when willful and wanton conduct is the measure of police officers’ liability, the special duty doctrine has no application. In the case at bar, plaintiff did not assert a common law theory of negligence, plead the elements of the special duty doctrine, or request this court to apply such exception to the common law doctrine of governmental immunity. Therefore, defendants’ attempt to persuade this court to declare the special duty doctrine unconstitutional is not a proper subject for our review in this case. Were we to use the instant appeal as a vehicle for holding the special duty doctrine unconstitutional we would be overruling a long line of precedent without a clear rationale or present need for such action. The specific factual circumstances of each case will determine whether a plaintiff is owed a duty by law enforcement officials, the standard of care by which the officers’ conduct is to be measured, and whether and to what extent immunities are available.

We hold that plaintiff has adequately pleaded a cause of action in willful and wanton misconduct against both defendants pursuant to the Domestic Violence Act. We further hold that the limitation of liability found in the Act renders the counts of the complaint alleging negligent violations of the Act unactionable, and, therefore, the negligence counts of the complaint were properly dismissed.

The judgment of the appellate court is affirmed.

Affirmed.

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