AMERICAN NATIONAL BANK & TRUST COMPANY, Sрecial Adm‘r for the Estate of Renee Kazmierowski, Deceased, Appellant, v. THE CITY OF CHICAGO et al., Appellees.
No. 86215
Supreme Court of Illinois
August 10, 2000
274-290
Charles A. Boyle & Associates, Ltd., of Chicago (Francis J. Leyhane III, of Boyle & Leyhane, and William J. Harte and Joan M. Mannix, all of Chicago, of counsel), for appellant.
Mara S. Georges, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon and Meera Werth, of counsel), for appellees.
Robert E. Senechalle, Jr., and Cara LeFevour Smith, of Forest Park, for amicus curiae Illinois Trial Lawyers Association.
Jay S. Judge, Kathryn James Anderlik and Edward F. Dutton, of Judge, James & Dutton, Ltd., of Park Ridge (Steven J. Kleinman, of Wheaton, and Roger Huebner, of Springfield, of counsel), for amici curiae Illinois Governmental Association of Pools & Illinois Municipal League.
JUSTICE MILLER delivered the opinion of the court:
The plaintiff, American National Bank and Trust
The following factual summary is derived from the allegations in the plaintiff‘s amended complaint and from the information contained in its accompanying exhibits, which include a transcript of the decedent‘s emergency call and the paramedics’ report. At around 7:55 a.m. on April 24, 1995, the decedent, Renee Kazmierowski, suffered an asthma attack while at home at her apartment in Chicago. She called 911 to request help. She provided her address and telephone number and said that she lived on the third floor of the building. The 911 operator replied that paramedics were on the way; the operator did not attempt to keep the decedent on the telephone while the paramedics were responding to the call.
Two paramedics, John Glеnnon and Kevin T. O‘Malley, were directed to respond to what they were told was a “heart attack” victim. They were allowed into the decedent‘s apartment building by a neighbor in the building and went to the third floor. They asked the neighbor whether he had summoned help, and the neighbor replied that he had not. The paramedics then
The plaintiff‘s amended complaint comprised a total of 11 counts. These alleged negligence and willful and wаnton misconduct, and sought recovery from the City and the two paramedics under the Wrongful Death Act and the Survival Act. An additional count sought to impose liability on the City under a federal civil rights provision. The complaint alleged that the 911 operator acted negligently, willfully, and wantonly in failing to keep decedent on the phone while the paramedics responded. The complaint further alleged that the front door of decedent‘s apartment was unlocked when the paramedics responded to her call, and that the paramedics acted negligently, willfully, and wantonly in failing to try the unlocked door and enter the apartment.
The defendants moved to dismiss the amended com
The appellate court affirmed the circuit court judgment in an unpublished order. No. 1—97-1212 (1998) (unpublished order under Supreme Court Rule 23). The appellate court rejected the defendants’ contention, raised for the first time on appeal, that
A motion to dismiss brought pursuant to
The plaintiff initially argues that the defendants’ section 2-615 motion to dismiss should not have been considered by the trial court because portions of the motion instead should have been included in a motion brought under
In support of the appellate court‘s and circuit court‘s rulings, the defendants contend that the present action is barred by the immunity provision found in
“Neither a local public entity nor a public employee is liable for failure to establish a fire department or otherwise to provide fire protection, rescue or other emergency service.
As used in this Article, ‘rescue services’ includes, but is not limited to, the operation of an ambulance аs defined in the Emergency Medical Services (EMS) Systems Act.”
745 ILCS 10/5-101 (West 1994) .
The appellate court ruled that section 5-101 provides immunity “only where a public entity chooses not to provide any fire protection, rescue or emergency services at all, and not where a public entity offers these services in general but fails to provide them in a particular case.” The defendants challenge the appellate court‘s interpretation, arguing that the statute immunizes a local public entity that establishes a rescue service but fails to competently use that service when summoned by a particular plaintiff. We do not agree.
We believe that section 5-101 immunizes only a local public entity that has not established a fire depart
We next consider the provisions of the EMS Act and the immunity afforded by it. As an initial matter, the plaintiff argues that the provision is not applicable at all to this case. At the time of the decedent‘s death, in April 1995, section 17(a) of the EMS Act provided as follows:
“Any pеrson, agency or governmental body licensed or authorized pursuant to this Act or its rules, who in good faith provides life support services during a Department approved training course, in the normal course of conducting their duties, or in an emergency shall not be civilly or criminally liable as a result of their acts or omissions in providing those services unless the acts or omissions,
including the bypassing of nearby hospitals or medical facilities for the purpose of transporting a trauma patient to a designated trauma center in accordance with the protocols developed pursuant to section 27 of this Act, are inconsistent with the persons‘s training or constitute willful or wanton misconduct.” 210 ILCS 50/17(a) (West 1994) .
Section 17(b) of the EMS Act similarly provided immunity for acts or omissions “in connection with administration, sponsorship, authorization, support, finance, or supervision of emergency medical services personnel, where the act or omission occurs in connection with their training or with services rendered outside a hospital unless the act or omission was the result of gross negligence or willful misconduct.”
The plaintiff contends that section 17(a) applies only when paramedics have actually rendered life support treatmеnt to a patient; the plaintiff maintains that the failure of the responding paramedics in this case to administer any treatment at all to the decedent means that the provision has no application here. In support of this interpretation, the plaintiff cites the provisions appearing in sections 4.02, 4.06, and 4.20 of the EMS Act, which respectively define the terms “Advanced Life Support—Mobile Intensive Care Services,” “Basic Life Support Services,” and “Intermediate Life Support Services.”
We do not believe that the scope of section 17(a) is as narrow as the plaintiff believes it to be. We conclude that the provision applies to this case, even though thе acts and omissions alleged here do not relate to the actual rendition of life support treatment. Although the EMS Act does not define the general term “life support services,” we do not believe that we are limited, in interpreting section 17(a), by the specialized meanings assigned to the terms “advanced life support—mobile intensive care services,” “basic life support services,” and “intermediate life support services.” Those definitions are designed to distinguish one level or form of care from another, and the legislature could reasonably hаve decided to omit from the definitions conduct that is common to them all or, though preparatory to the actual rendering of medical care, is no less an integral part of providing life support services. Moreover, section 17(a) also refers to the transportation of patients. If transporting a patient to a hospital is an aspect of life support services, then so too is locating a patient in the first place. Other provisions in the EMS Act also demonstrate that the immunity provisions of section 17 apply in these circumstances. Elsewhere, the Act regulates matters such as communications, response time, and standards for ambulance operation.
We agree with the defendants’ interpretation. We believe that this portion of section 17(a) means that conduct that is beyond the level of a paramedic‘s training is not immunized, while conduct that merely deviates from a paramedic‘s training and constitutes negligence is subject to immunity. The appellate court has adopted this interpretation in a series of cases. Bowden v. Cary Fire Protection District, 304 Ill. App. 3d 274, 280 (1999); Brock v. Anderson Road Ass‘n, 287 Ill. App. 3d 16, 23-24 (1997); Gleason v. Village of Peoria Heights, 207 Ill. App. 3d 185, 188-89 (1990). We believe that that construction of the statutory language better effectuates the legislative intent. Under the plaintiff‘s broad reading, which would withhold immunity for conduct that violates a person‘s training, the exception would threaten to supplant the immunity rule, for virtually any negligent act could be said to be inconsistent with or in violation of a person‘s training. The plaintiff has not alleged that the actions of the paramedics were beyond their level of training, and therefore we conclude that section 17(a)
We next consider whether the plaintiff‘s amended complaint sufficiently alleges willful and wanton misconduct. The circuit court believed that the allegations were merely conclusory, and the appеllate court agreed. The defendants argue that the lower courts’ determinations were correct.
It is the plaintiff‘s duty to sufficiently allege conduct that falls within the scope of a recognized cause of action. Moreover, mere conclusory allegations are not sufficient. We believe, however, that the allegations contained in the plaintiff‘s amended complaint are sufficient to withstand the defendants’ motion to dismiss.
This court has previously defined “willful and wanton misconduct” in the following terms:
“‘A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.‘” Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 273 (1994), quoting Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 583 (1946).
We believe that the allegations in the plaintiff‘s amended complaint are sufficient, creating a question for the trier of fact to determine whether the defendants’ conduct was willful and wanton. According to thе complaint, the decedent, Renee Kazmierowski, called 911 on the morning of April 24, 1995, and requested help, explaining that she was having an asthma attack. She provided her address and telephone number and said what floor she lived on. She also told the dispatcher, “I think I‘m going to die. Hurry.” The dispatcher did not attempt to keep Renee on the line, however, as required by applicable standards.
“[I]nstruction, training and enforcement of the standard ‘Try Before You Pry’ which dictates that firefighters, paramedics and other rescue personnel should always attempt to open a shut door by turning the door knob before engaging in destructive methods to gain access, or before exiting the scene altogether, without gaining access in order to ensure delivery of emergency health care services to the critically ill caller.”
In the present case, the victim‘s door was unlocked. If the paramedics had been following these vital and basic precepts of their training, as alleged, they would have found the victim inside the residence, and perhaps then they could have saved her life. Locating a person in need of emergency medical treatment is the first step in providing life support services. Not even that first step was taken here. We believe that the portions of the amended complaint that allege willful and wanton misconduct by the defendants are sufficient to withstand the defendants’ motion to dismiss, and we therefore remand the action to the circuit court for further proceedings.
For the reasons stated, the judgment of the appellate court, affirming the judgment of the circuit court of Cook County, is affirmed in part and reversed in part, and the cause is remanded to the circuit court of Cook County for further proceedings.
Affirmed in part and reversed in part; cause remanded.
On April 24, 1995, Renee Kazmierowski (decedent) suffered an asthma attack at her apartment in Chicago. Decedent called 911 and stated: “I need help. I‘m having an asthma attack. I think I‘m going to die. Please hurry.” The 911 operator told decedent that paramedics were on the way, but failed to keep decedent on the phone while the paramedics were responding. When the defendant paramedics arrived at the reporting apartment, they knocked loudly but received no response. A next-door neighbor escorted one of the responding officers through his apartment to check the back door of the reporting apartment, but the officer received no response there either. The neighbor told the paramedics that in the apartment lived a young couple who appeared to have no medical problems. The paramedics called the dispatcher, who confirmed that they were at the correct address. Concluding that there was no indication that they were needed at the address, the paramedics reported back in service. Later that day, the defendant paramedics were again called to the same apartment. This time, a man let them into the apartment and showed them on the floor the dead body of his girlfriend, who had died of an asthma attack.
The majority holds that the complaint filed by the administrator of decedent‘s estate adequately alleged willful and wanton misconduct under section 17(a) of the
Section 17(a) states that a person who “provides life support services” shall not be liable for the results of their acts or omissions unless those acts or omissions are “inconsistent with the person‘s training or constitutе willful or wanton misconduct.”
The City argues, however, that even if this immunity statute does not apply, it is still immune from liability in the instant case under the common law “public duty” rule. The public duty rule prevents units of local government from being held liable for their failure to provide adequate governmental services such as police and fire protection. Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 345 (1998); Leone v. City of Chicago, 156 Ill. 2d 33, 37 (1993); Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 509 (1990). The rationale for the rule is that the duty of government to provide such protective services is owed to the public at large and therefore takes precedence over any duty owed to a
This court has recognized, however, an exception to the public duty rule known as the “special duty” doctrine. Under this doctrine, a municipality may be held liable for its failure to provide adequate governmental services if the legislature has not granted immunity to the municipality. Harinek, 181 Ill. 2d at 347. To invoke the special duty doctrine, a plaintiff must prоve the following elements:
- that the municipality was uniquely aware of the particular danger or risk to which the plaintiff was exposed;
- that the municipality engaged in specific acts or omissions that were affirmative or willful in nature; and
- that the injury occurred while the plaintiff was under the direct and immediate control of municipal employees or agents.
See Leone, 156 Ill. 2d at 37; Burdinie, 139 Ill. 2d at 508. For example, in Leone v. City of Chicago, 156 Ill. 2d 33 (1993), this court found a special duty where a police officer directed the plaintiff to stand between her car and his police car, which was then struck from behind, injuring her.
Assuming arguendo that the complaint in the instant case sаtisfies the first of the requirements for a special duty, I would hold that it fails to satisfy the remaining elements. The complaint fails to establish that the City or its employees engaged in affirmative or willful acts or omissions in connection with decedent‘s death. The com
Furthermore, the complaint fails to adequately allege that decedent was under the direct and immediate control of the City. Although decedent called 911 for assistance, the paramedics had not located her and were not physically in her presence at the time of her death. In Doe v. Calumet City, 161 Ill. 2d 374 (1994), this court refused to find a special duty where police officers failed to enter an apartment to prevent a violent crime that was occurring. Doe, 161 Ill. 2d at 387. We held that because the officers had not initiated the circumstances that brought harm to the victims, the victims were not under the officers’ direct and immediate control. Doe, 161 Ill. 2d at 387. Similarly, in the instant case the City had no part in initiating the harm that befell decedent. Although the complaint may establish that the City employees performed their duties incompetently, it fails to establish that they owed decedent a special duty. The public duty rule therefore immunizes the City from liability for her death.
For these reasons, I respectfully dissent.
JUSTICES BILANDIC and RATHJE join in this dissent.