Leone v. City of Chicago , 156 Ill. 2d 33 ( 1993 )

JUSTICE HARRISON

delivered the opinion of the court:

Cynthia Leone brought an action against the City of Chicago to recover damages for personal injuries she sustained when struck by an automobile during the course of a traffic stop by Chicago police. A jury concluded that Leone’s injuries were caused by the negligence of the police officer involved and, based on that negligence, found the City liable to her under the common law “special duty” exception to municipal immunity for injuries negligently caused by police officers while performing their official duties. Damages of $316,000 were awarded. The circuit court entered judgment on the jury’s verdict and denied the City’s post-trial motion. After the appellate court affirmed (235 Ill. App. 3d 595), we granted the City’s petition for leave to appeal (134 Ill. 2d R. 315). We now affirm.

The facts are these. While returning home from work on the afternoon of October 19, 1983, Cynthia Leone was stopped by Chicago police officer William M. Coffey for driving with an expired license plate. The stop occurred on a two-lane street. It had been raining and the pavement was wet. Although traffic was fairly heavy, Coffey directed Leone to halt in one of the active traffic lanes. He made no attempt to have her move to a less travelled area. Coffey then parked his police vehicle two or three feet behind her car. According to Leone, the distance between the two vehicles was only “enough room to just walk through.” This was contrary to recommended police department procedure, which called for officers to leave between 8 and 15 feet between their cars and the cars they stop. In addition, Coffey failed to activate the emergency lights on top of his vehicle or to provide any other type of visual or audible warning signals as a caution to oncoming traffic.

When Coffey advised Leone of the reason for the stop, she expressed surprise and disbelief. Coffey responded by saying, “If you don’t believe me, then get out and look.” Leone understood this to be an order for her to exit her vehicle, which she did. She was then led by Coffey to the back of the car, between her vehicle and Coffey’s, to examine the license plate. As she stood there discussing the matter with Coffey, an automobile driven by Calvin Blakely collided with the rear of Coffey’s police vehicle, pushing that vehicle into Leone’s legs with such force that she was thrown up against her own car. Her left knee was dislocated; her right knee broken. When her legs could no longer support her, she collapsed onto the pavement. She remained there until an ambulance transported her to the hospital, where she underwent surgery.

Leone subsequently sought recovery for her damages from Coffey’s employer, the City of Chicago. As ultimately submitted to the jury, Leone’s claim against the City was in two counts. Count I was premised on allegations that Coffey had conducted the traffic stop negligently, while count II asserted that his acts or omissions in effectuating the stop constituted willful and wanton conduct. The jury concluded that Coffey had not acted willfully or wantonly, but that he was guilty of negligence. It therefore returned a verdict in favor of the City on count II, but in favor of Leone on count I. It is the viability of that negligence count which is the subject of this appeal.

The courts of this State have held as a matter of common law that municipalities are generally not liable for failure to supply police or fire protection (Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 363), nor are they liable for injuries negligently caused by police officers or fire fighters while performing their official duties (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 509). An exception to these rules has been recognized where the municipality owes the injured party a special duty that is different from its duty to the general public. To invoke this special duty exception, the courts have held that a plaintiff must prove four elements: (1) the municipality must be uniquely aware of the particular danger or risk to which plaintiff is exposed; (2) there must be specific acts or omissions on the part of the municipality; (3) the specific acts or omissions must be affirmative or willful in nature; and (4) the injury must occur while the plaintiff is under the direct and immediate control of municipal employees or agents. Burdinie, 139 Ill. 2d at 507-08.

Leone’s recovery against the City on her negligence claim in count I was premised on the existence of such a special duty here. The City now argues, however, that the special duty exception to municipal immunity cannot be squared with the express terms of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 1992)). That Act provides that a “[ljocal public entity,” which includes a municipality (745 ILCS 10/1 — 206 (West 1992)), is not liable for failure to provide adequate police protection (745 ILCS 10/4 — 102 (West 1992)) or for injury resulting from an act or omission of a public employee in the execution or enforcement of any law “unless such act or omission constitutes willful and wanton conduct” (745 ILCS 10/ 2-109, 2-202 (West 1992)).

In light of this explicit statutory language, the City contends that the special duty exception can remain as a viable principle of law only by superseding the provisions of the Act. The City argues, however, that because the special duty exception is a judicially created doctrine, it cannot override the Act without offending section 4, article XIII, of the 1970 Illinois Constitution (Ill. Const. 1970, art. XIII, §4), which it construes as investing the General Assembly with exclusive authority for determining whether and under what circumstances a municipality should be immune from liability.

Without intimating any view on the merits of this argument, we note simply that it is not properly before us. At trial, the City made no challenge to the constitutional viability of the special duty exception. Its contention was simply that a special duty could not be established on the facts present here. Having tried and lost the case on this theory, the City cannot assail the circuit court’s judgment on a wholly different basis on appeal. Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 148.

The City argues, in the alternative, that even if the special duty exception is constitutional, it should still be interpreted to require a showing that the misdeeds of the offending public' employee were willful and wanton within the meaning of section 2 — 202 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2-202 (West 1992)). The City forgets the very basic principle that what the special duty doctrine is an exception to is the rule that municipalities are immune from liability for injuries negligently caused by police officers or fire fighters while performing their official duties. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 509.) It necessarily follows from this principle that when the exception is activated, liability will be imposed for the employee’s negligence. (Anthony v. City of Chicago (1988), 168 Ill. App. 3d 733, 736.) No higher degree of fault need be established.

We note, moreover, that section 2 — 202, by its terms, already eliminates municipal immunity for injury resulting from the willful and wanton acts or omissions of public employees in the enforcement or execution of the law. This is so even where no special duty is present. Incorporating a willful and wanton requirement into the special duty doctrine would therefore yield the anomalous result of making recovery more difficult under the doctrine than it already is under the statute. Under these circumstances, the doctrine would cease to operate as an “exception” to sovereign immunity and would instead become an expansion of it. This is a total subversion of the rule.

The City’s final argument on appeal is that the special duty exception is inapplicable here because the evidence failed to show that Officer Coffey was “uniquely aware” of the particular danger or risk to which Leone was exposed or that Leone was under Coffey’s “direct and immediate control” when she was injured. The appellate court correctly held otherwise. The requirement of “direct and immediate control” is met where the public employee “creates a position of peril ultimately injurious to a plaintiff, as opposed to situations where a plaintiff merely seeks protection from the public employee that is not normally provided. [Citation.]” (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 525.) This court has recently interpreted this to mean

“that the control element arises when the public employee initiates the circumstances which create the dangerous situation. Thus, where a police officer or firefighter initiates the dangerous situation without any suggestion from the plaintiff, it has been held that the plaintiff is under the control of the police or fire department.” (Burdinie, 139 Ill. 2d at 525-26.)

As even our cursory recitation of the facts has shown, these circumstances were plainly present with Officer Coffey’s traffic stop here. By directing Leone to halt in an active traffic lane in inclement weather without providing warnings to oncoming traffic, by parking so close behind her, and by then directing her to the area between his car and hers to discuss the matter, Officer Coffey placed Leone in a highly perilous position. No part of this was done at Leone’s suggestion. The dangerous situation was the creation of Coffey and Coffey alone. ■

We likewise find no merit to the City’s contention that Coffey was not, in fact, “uniquely aware” of the particular danger or risk to which he had exposed Leone. The “unique awareness” element of the special duty exception, derived from this court’s decision in Huey v. Town of Cicero (1968), 41 Ill. 2d 361, has been construed to mean simply that the municipality must be on notice that a preventable danger threatens a particular individual of whom it is aware. (Fryman v. JMK/ Skewer, Inc. (1985), 137 Ill. App. 3d 611, 617; McGuckin v. Chicago Union Station (1989), 191 Ill. App. 3d 982, 992.) In this case, as the appellate court correctly observed (235 Ill. App. 3d at 601), there was ample evidence that Officer Coffey fully appreciated the danger posed to Leone by conducting the stop as he did. There was also ample proof that this danger was fully avoidable. The record showed, for example, that Coffey could have directed Leone to stop somewhere other than in an active traffic lane or that he could have parked a safer distance behind her as the police training manual recommended, and it was certainly not necessary for him to carry on a discussion with Leone in the street between their two vehicles. A parking lane and sidewalk were only a few steps away.

For the foregoing reasons, the judgment of the appellate court is affirmed.

Affirmed.