MARY L. DeSMET, as Personal Representative of the Estate of Doris F. Hays, Deceased, Appellant, v. THE COUNTY OF ROCK ISLAND, Illinois, et al., Appellees.
No. 100261
Opinion filed April 20, 2006.
Robert J. Noe, of Bozeman, Neighbour, Patton & Noe, L.L.P., of Moline (Heather G. Rouleau, of counsel), for appellees County of Rock Island et al.
Clifford G. Kosoff and Jane M. May, of O‘Halloran, Kosoff, Geitner & Cook, P.C., of Northbrook, for appellees County of Henry, Illinois, et al.
Peter R. Jennetten, of Quinn, Johnston, Henderson & Pretorius, of Peoria, for appellees City of Moline, Illinois, et al.
John P. Fleming and Shelley McCormick, of Fleming & Umland, of Peoria, for appellees Village of Orion and Lori Sampson.
Greg G. Chickris, of East Moline, for appellee City of East Moline.
JUSTICE KARMEIER delivered the judgment of the court, with opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride and Garman concurred in the judgment and opinion.
Justice McMorrow dissented, with opinion.
OPINION
The plaintiff, Mary L. DeSmet, as personal representative of the estate of the decedent, Doris F. Hays (Hays), filed a multicount complaint in the circuit court of Rock Island County naming several local governmental entities, and their various employees, parties defendant. Plaintiff‘s complaint alleged that each violated a duty to
BACKGROUND
The record, for purposes of the motions to dismiss,1 reflects that on April 5, 2002, Doris Hays was driving her vehicle on U.S. Route 150 in rural Rock Island County when it left the road and ran into a ditch. A passing motorist witnessed the vehicle‘s departure from the
Sampson told Wrigley that she had received a call from a motorist who said she had witnessed a vehicle traveling at a high rate of speed go off Route 150 in Rock Island County, just over the Henry County/Rock Island County line. Wrigley asked Sampson: “Okay, did they wreck?” Sampson replied that the caller “said she believed they had to of because they were traveling at such a high rate of speed.” Sampson noted that the caller had not stopped to verify that the vehicle had wrecked, stating, “She continued on her way.” Sampson told Wrigley that she did not have a vehicle description; however, she described the area that the caller had referred to as just over the Rock Island County line, “where the couple of houses are at in the ditch where it‘s such a mess and they‘ve got all that junky equipment and so on.” Wrigley then told Sampson she would contact Rock Island County.
Instead of contacting Rock Island County, however, Wrigley notified the City of Moline and the City of East Moline via the Moline-East Moline Dispatch Center (Dispatch Center). Wrigley informed dispatcher Debra Roman that she had received a report of a vehicle “down in the ditch” on Route 150 “at the Rock Island, Henry County line *** on the Rock Island County side by two houses with a lot of junk in the yard.” Wrigley indicated she did not have a vehicle description.
Roman then telephoned Rock Island County at its sheriff‘s department and reported the incident to Myrtle DeWitte, a dispatcher for Rock Island County. The following conversation ensued between the Dispatch Center and Rock Island County:
“Rock Island County dispatcher Myrtle DeWitte: Radio, Sergeant DeWitte.
Moline-East Moline dispatcher Debra Roman: Hello, Myrtle, this is Deb at Moline. DeWitte: Hi.
Roman: Henry County called.
DeWitte: Um hum.
Roman: To tell me about a vehicle in the ditch.
DeWitte: Okay.
Roman: On Route 150.
DeWitte: Uh huh.
Roman: And it‘s right at the Rock Island County, Henry County line.
DeWitte: Oh, heaven forbid they would handle it.
Roman: Well, I know.
DeWitte: Okay.
Roman: They call us instead of calling you.
DeWitte: (Laughter) Okay, what kind of vehicle, did they say?
Roman: Uh, no they didn‘t know, this is a third party call.
DeWitte: Okay.
Roman: By some houses or something that, couple houses that have a bunch of junk in the yard.
DeWitte: Oh, okay, we‘ll check on it.
Roman: Ya, that‘ll, that‘ll narrow it.
DeWitte: Ya, that‘ll get it for us.
Roman: Ya.
DeWitte: Okay, thanks.”
None of the parties contacted responded to the scene on the day the calls were made. On that day, Doris Hays’ family also notified Rock Island County that she was missing. Three days later, Hays’ body was found lying outside her vehicle at the scene of the accident.
On March 3, 2003, plaintiff, Mary DeSmet, as personal representative of the estate of the decedent, Doris F. Hays, filed a 24-count complaint in the circuit court of Rock Island County naming as parties defendant: Rock Island County; Michael Grehan, the sheriff of Rock Island County; Myrtle DeWitte, a dispatcher for Rock Island County; Henry County; Gilbert Cady, the sheriff of Henry County; the Village of Orion; Lori Sampson,
At the hearing on the motions to dismiss, in response to certain arguments raised by defendants, the plaintiff suggested that the complaint “alleged facts sufficient to show willful and wanton conduct.” When the circuit court observed that the complaint “specifically used the word ‘negligence’ ” and that it “looks to be pled in negligence,” counsel for plaintiff responded, “[T]hat being noted, if this court was inclined to make a ruling today or in the future based on the words of negligence in there, we would ask to amend it to just change those words, even though the facts we think are sufficient.” The circuit court agreed that point was “easily cured by amendment.” However, the court was never presented with a written motion to amend, and it did not make a ruling on the plaintiff‘s offer to do so. The circuit court ultimately dismissed plaintiff‘s complaint with prejudice, ruling that section 4-102 immunized all defendants.
On appeal, plaintiff contended that the circuit court erred in granting defendants’ motion to dismiss, arguing
ANALYSIS
At the outset, we note that immunity under the Tort Immunity Act is an affirmative matter properly raised in a section 2-619 motion to dismiss. Governmental entities bear the burden of proving their immunity under the Act. Van Meter v. Darien Park District, 207 Ill. 2d 359, 370 (2003). When a court rules on a section 2-619 motion to dismiss, it must interpret all pleadings and supporting documents in the light most favorable to the nonmoving party. Van Meter, 207 Ill. 2d at 367-68, quoting In re Chicago Flood Litigation, 176 Ill. 2d 179, 189 (1997). Our review of a section 2-619 dismissal is de novo. Van Meter, 207 Ill. 2d at 368.
Before this court, plaintiff presents three issues for our consideration, all of which concern the applicability of section 4-102 of the Act. We set forth those issues precisely as plaintiff has phrased them: (1) whether a municipality that sends no assistance whatsoever in response to a request for help at an accident scene can claim the immunity provided by section 4-102 of the Tort Immunity Act for failure to provide adequate police or service; (2) whether a call placed for help at an accident scene automatically triggers a police search rather than a paramedic response, thus triggering the immunity of section 4-102 for failure to provide adequate police
Under the facts of this case, we hold that section 4-102 of the Act provides immunity for defendants. Given that determination, we deem it unnecessary to clarify the nature and continued viability of the public duty rule in this context.
In Illinois, governmental entities were originally immune from tort liability under the doctrine of sovereign immunity. This court abolished sovereign immunity in 1959. See Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11 (1959). In response to this court‘s decision in Molitor, the legislature enacted the Local Governmental and Governmental Employees Tort Immunity Act in 1965. Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 43 (1998); Barnett v. Zion Park District, 171 Ill. 2d 378, 386 (1996). As we noted in Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 490 (2001), the purpose of the Act is to protect local public entities and public employees from liability arising from the operation of government. ” ‘By providing immunity, the legislature sought to prevent the diversion of public funds from their intended purpose to the payment of damage claims.’ ” Village of Bloomingdale, 196 Ill. 2d at 490, quoting Bubb v. Springfield School District 186, 167 Ill. 2d 372, 378 (1995).
Some decisions of this court have indicated that the “common law public duty rule” survived the abolition of sovereign immunity and the enactment of the Tort Immunity Act. See Zimmerman, 183 Ill. 2d at 44-45, citing approvingly Huey v. Town of Cicero, 41 Ill. 2d 361, 363 (1968) (“Independent of statutory or common-law concepts of sovereign immunity, the general rule is that a municipality or its employees is not liable for failure to supply general police or fire protection. [Citations.] This rule has been maintained in the face of decisions holding municipalities liable for affirmative negligent or wilful acts by their employees“). In Zimmerman, this court explained the rule and its purpose:
“The public duty rule establishes that ‘a municipality or its employees is not liable for failure to supply general police or fire protection.’ Huey v. Town of Cicero, 41 Ill. 2d 361, 363 (1968). The rationale behind the nonliability principle of the public duty rule is that a municipality‘s duty is to preserve the ‘well-being of the community’ and that such a duty is ‘owed to the public at large rather than to specific members of the community.’ Schaffrath v. Village of Buffalo Grove, 160 Ill. App. 3d 999, 1003 (1987).” Zimmerman, 183 Ill. 2d at 44.
Schaffrath, cited approvingly in Zimmerman, provides additional insight into the rationale for the public duty rule as it pertains to police protection: “The duty of the police to preserve the well-being of the community is owed to the public at large rather than to specific members of the community. [Citation.] This rule rests upon public policy considerations that a police depart-
As noted, in addition to explaining the rule and its purpose, this court, in Zimmerman, also affirmed the continuing viability of the public duty rule:
“In Huey, this court determined that the public duty rule remained viable, even after the passage of the Tort Immunity Act, on the basis that the rule existed ‘[i]ndepen-dent[ly] of statutory or common-law concepts of sovereign immunity.’ Huey, 41 Ill. 2d at 363.
***
This court‘s holding in Huey that the public duty rule exists ‘[i]ndependent[ly] of statutory or common-law concepts of sovereign immunity’ (emphasis added) (Huey, 41 Ill. 2d at 363) establishes that neither this court‘s decision in Molitor abolishing sovereign immunity, 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.” Zimmerman, 183 Ill. 2d at 45.
Finally, this court, in Zimmerman, observed that ” ‘the existence of a duty and the existence of an immunity are separate issues.’ ” Zimmerman, 183 Ill. 2d at 45, quoting Barnett, 171 Ill. 2d at 388. In Zimmerman, this court stated, ” ‘[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, 183 Ill. 2d at 46, quoting 18 McQuillin on Municipal Corporations § 53.04.25, at 165 (3d rev. ed. 1993). Assuming the continued viability of the public duty rule, defendants in
While Zimmerman and subsequent cases continue to reference and apply the public duty rule in various contexts (see Sims-Hearn v. Office of the Medical Examiner, 359 Ill. App. 3d 439, 443-46 (2005); Alexander v. Consumers Illinois Water Co., 358 Ill. App. 3d 774 (2005)), in the context of police protection services, this court‘s comments lend support to plaintiff‘s contention that the public duty rule has been codified in section 4-102 of the Tort Immunity Act as an immunity. Indeed, this court apparently acknowledged as much in Aikens v. Morris, 145 Ill. 2d 273 (1991), when it referred to “the common law blanket immunity, codified in section 4-102, which immunizes a municipality and its employees for the failure to provide police protection.” Aikens, 145 Ill. 2d at 282 (“Section 4-102 immunity may apply in the context where police officers are simply ‘providing [or failing to provide] police services’ “); see also Hernandez v. Kirksey, 306 Ill. App. 3d 912, 915 (1999) (section 4-102 codifies the common law public duty rule). In Aikens, this court explained:
“We note, *** in an effort to preserve the clarity of our jurisprudence, that section 4-102 of the Tort Immunity Act codifies the separate common law rule that municipalities or their employees are not liable for failure to supply police or fire protection. This long-standing rule survived Molitor. (See Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 363.) Under the rule, a police department‘s duty to preserve the well-being of the community is owed to the public at large, rather than specific individuals. [Citations.] The duty is so limited because of strong public policy considerations which seek to avoid placing police departments in the untenable position of guaranteeing the personal safety of each individual in the community.” Aikens, 145 Ill. 2d at 278 n.1.
This court‘s comments in Aikens suggest, as plaintiff argues, that the public duty rule, at least in this context,
However, the current status of the public duty rule is not a point this court must resolve in this case because, even if these ” ‘governmental units are liable in tort on the same basis as private tortfeasors’ ” (Village of Bloomingdale, 196 Ill. 2d at 490, quoting In re Chicago Flood Litigation, 176 Ill. 2d at 192), we find that section 4-102 immunity applies in any event. It is our prerogative to forgo the determination of issues unnecessary to the outcome of a case. See Calloway v. Kinkelaar, 168 Ill. 2d 312, 326-27 (1995) (acknowledging “the public duty doctrine, a common law immunity based on public policy,” but declining to reach the issue of the rule‘s applicability); Lovgren v. Citizens First National Bank of Princeton, 126 Ill. 2d 411, 417-18 (1989); see also Sundance Homes, Inc. v. County of Du Page, 195 Ill. 2d 257, 288 (2001) (Freeman, J., specially concurring, joined by McMorrow, J.). As we may reject an ineffective assistance of counsel claim in a criminal case on the basis of lack of prejudice, assuming counsel‘s deficient performance, arguendo, for purposes of analytical expedience (see People v. Ceja, 204 Ill. 2d 332, 358 (2003)), so may we assume a defendant owes a duty, for the sake of analysis, in order to expedite the resolution of an immunity issue.
We now address the central issue presented by plaintiff‘s appeal, i.e., whether the circuit court erred in dismissing plaintiff‘s complaint with prejudice on the basis of section 4-102 of the Tort Immunity Act. Section 4-102 provides in pertinent part:
“Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service *** .”
745 ILCS 10/4-102 (West 2002).
When construing a statute, this court must, if possible,
Section 4-102, the immunity statute at issue, is couched in the disjunctive. The pertinent portion of the statute contains three clauses separated in two locations by the term “or.” The statute, by its terms, immunizes local public entities and public employees from liability for failure to (1) establish a police department or (2) otherwise provide police protection or (3) if police protection service is provided, for failure to provide adequate police protection service. While the wording and context of other less comprehensive provisions of the Tort Immunity Act might warrant a different interpretation (see American National Bank & Trust Co. v. City of Chicago, 192 Ill. 2d 274, 280-81 (2000) (interpreting section 5-101 of the Act, which fails to address inadequate governmental protection)), if we were to interpret section 4-102 in
We first address plaintiff‘s claim that section 4-102 does not apply because “there was no particular need for police assistance.” Plaintiff notes that the call for assistance did “not target any particular type of governmental agency” and maintains that “the nature of the call suggests that at least one non-police agency would be an appropriate responder.” Plaintiff‘s attempt to circumvent the application of section 4-102 is unavailing.
We again examine the essential facts provided in plaintiff‘s complaint and response. One has to assume that Lori Sampson accurately conveyed the information given her by the anonymous caller, because there is nothing in the record to the contrary. Sampson told Christine Wrigley, the Henry County dispatcher, that someone had witnessed a vehicle go off Route 150 at a high rate of speed and, because of its speed upon departure from the road, the witness speculated that the vehicle must have wrecked. Sampson described the location with specificity and indicated that it was in Rock Island County. Wrigley, in turn, contacted Debra Roman at the Dispatch Center, informing her of the vehicle‘s location, but telling her only that there was a vehicle “down in the ditch.” Wrigley did not mention the speed at which the vehicle was traveling when it left the roadway, and she did not convey any assumptions regarding an accident or injuries. It was that information which Roman passed on to Rock Island County‘s dispatcher, Myrtle DeWitte. Consequently, authorities in Rock Island County, the county in which accident actually occurred, knew only that there was “a vehicle in the ditch.” Thus, plaintiff‘s factual allegations, stripped of unsupported speculation, conclusions and
Appellate panels have held that “police protection service” under section 4-102 is implicated where police are called upon to assist or locate motorists who have driven off the roadway. See McElmeel v. Village of Hoffman Estates, 359 Ill. App. 3d 824, 827-29 (2005); Kavanaugh v. Midwest Club, Inc., 164 Ill. App. 3d 213, 221 (1987). We agree with those decisions insofar as they hold that the assistance required in such situations falls within the statutory umbrella of “police protection services.” We therefore reject plaintiff‘s argument that the caller‘s report required an immediate emergency medical response. Until the police had determined that an accident had in fact occurred, and that there were injuries associated with the accident, an emergency medical response was not indicated. Consequently, section 4-102 applies in the first instance, rather than some other statutory provision of the Tort Immunity Act.
Plaintiff next contends “[w]here a municipality receives a call for emergency assistance but fails to respond, and that failure is the consequence of human error rather than any exercise of discretion, Section 4-102 of the Tort Immunity Act is not implicated.” Plaintiff suggests that the “legislature did not intend to shield municipalities from liability caused by a complete and inexcusable failure to act.” She argues: “[T]here was no failure to provide adequate police service, the conduct that 4-102 addresses. Instead, there was a complete absence of any police service, and 4-102 does not address that situation.” (Emphases in original.)
First, we reject plaintiff‘s attempt to equate the failure to “respond” to the report in this case with a failure to provide “any police service” for purposes of section 4-102. Although section 4-102 of the Act does immunize a local public entity for its “failure to establish a police department or otherwise provide police protection service” (
Plaintiff alleges that the defendants “[f]ailed to train and supervise *** employees” and “failed to have in force procedures which would ensure that all emergency calls for assistance are responded to in a timely fashion.” Those allegations implicate the structural adequacy of police protection services that defendants provided to the
Moreover, since section 4-102 contains no exception for willful and wanton misconduct, that section would immunize defendants even if we were to accept plaintiff‘s argument that the facts alleged in her complaint support that characterization. As we noted in Village of Bloomingdale, and our prior decisions discussed therein, when the legislature intends to limit an immunity provision to cover only negligence and not willful and wanton misconduct, it has ” ‘unambiguously done so.’ ” Village of Bloomingdale, 196 Ill. 2d at 491, quoting Barnett, 171 Ill. 2d at 391. When the plain language of an immunity provision in the Tort Immunity Act contains no exception for willful and wanton misconduct, we have reasoned that the legislature ” ‘intended to immunize liability for both negligence and willful and wanton misconduct.’ ” Village of Bloomingdale, 196 Ill. 2d at 491, quoting Barnett, 171 Ill. 2d at 391-92. This court applied that reasoning in Harinek and Chicago Flood Litigation to hold that section 2-201 of the Tort Immunity Act immunized defendants against allegations of willful and wanton misconduct. Harinek, 181 Ill. 2d at 347; In re Chicago Flood Litigation, 176 Ill. 2d at 196. Identical reasoning
Section 4-102 of the Act is comprehensive in the breadth of its reach, addressing situations where no police protection is provided to the general public and those in which inadequate protection is provided. Moreover, section 4-102 contains no exception for willful and wanton misconduct. We hold, given the facts of this case, that section 4-102 immunizes defendants against both negligence and willful and wanton misconduct.
Plaintiff, however, submits that this court, in Doe v. Calumet City, 161 Ill. 2d 374 (1994), recognized a willful and wanton exception to the immunity otherwise provided by section 4-102, and she suggests that the exception applies to the facts of this case. To the extent that Doe still represents good law, we hold it is inapplicable under these circumstances, where the police failed to respond to the scene of a possible accident. Since this court‘s decision in Doe cannot be properly understood without reference to the outrageous conduct alleged of the supervising police officer in that case, we set forth the facts at some length.
Jane Doe and her two children, Betty and John, were the victims of a home invasion accompanied by violent assaults. The intruder, Valentine, first sexually assaulted Jane and threatened to kill her. Jane subsequently escaped from her apartment and struggled with Valentine on the stairwell of her building. During the course of that struggle, Valentine beat Jane and again threatened to kill her. Valentine eventually left Jane on the stairwell, reentered her apartment where Jane‘s children were
Officer Horka asked Jane what had happened. Jane told him that there was a man in her apartment, and that the man had tried to rape her and had threatened to kill her and her children. Jane also told Horka that her children were still in the apartment and she feared for their safety. Jane pleaded with Horka to break down the door and rescue her children. Several neighbors also pleaded with the officers to break down the door. However, Officer Horka declined to break down the door, stating that he did not want to be responsible for the property damage. Jane repeatedly stated that she would pay for any damage and screamed that she herself would save her children. When Jane attempted to rescue her children, several defendant police officers ordered her to stay put and then physically restrained her. The complaint subsequently filed by Jane and her children alleged that the defendant police officers also prevented neighbors from breaking down the door.
The complaint further alleged that Horka delayed outside the apartment, questioning Jane in an accusatory and rude manner, attempting to obtain a key from the landlord, and attempting to gain entry to the front door of the apartment by ringing the doorbell. The complaint alleged that Horka and another officer walked around the apartment building, checking Jane‘s windows and rear door, but they did not gain entry at those locations. Plaintiffs’ complaint claimed the rear balcony sliding glass doors, 12 feet above ground level, were unlocked and ajar, and that the rear door of the building and the back door to Jane‘s apartment were also unlocked.
According to the complaint, Officer Horka spoke by
As this court noted in Doe, from those facts, “plaintiffs’ complaint framed three theories for transferring the cost of their injuries to the defendant police officers and their respective municipalities. Betty and John brought a negligence count alleging the special duty exception to defendants’ statutory immunity. In addition, the negligence count also alleged willful and wanton misconduct. Jane brought a count alleging intentional infliction of emotional distress.” Doe, 161 Ill. 2d at 383-84. Pertinent to our present inquiry, the circuit court granted defendants’ motion to dismiss the negligence and willful and wanton misconduct counts for failure to state a claim upon which relief could be granted. Doe, 161 Ill. 2d at 380.
This court agreed that the negligence count was properly dismissed because plaintiffs had not established all of the necessary elements for application of the special duty doctrine. Doe, 161 Ill. 2d at 387. In the course of that portion of the court‘s analysis, this court engaged in
To the extent that Doe held the special duty doctrine could override statutory immunities, that portion of the decision was overruled by this court, sub silentio, in Zimmerman. Zimmerman, 183 Ill. 2d at 46-50 (“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. Such operation constitutes a violation of the
This court in Doe also held that the allegations of willful and wanton misconduct in plaintiffs’ complaint stated a cognizable claim against one of the police officers involved, Officer Horka, pursuant to section 2-202 of the Tort Immunity Act. Doe, 161 Ill. 2d at 388-90. Section 2-202 of the Act provides 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.”
“The complaint repeatedly states that Officer Horka was the officer in control at the scene. Plaintiffs’ complaint alleges that Officer Horka was aware of the facts surrounding the intrusion into plaintiffs’ home, including the assault of Jane and the presence of the intruder in the plaintiffs’ home with Betty and John. *** A rational trier of fact could find that Officer Horka‘s conduct showed an ‘utter indifference or conscious disregard for the safety of Betty and John.” Doe, 161 Ill. 2d at 390-91.
However, this court held that “[t]he allegations in the complaint [were] insufficient to create a jury question regarding the willful and wanton nature of the conduct of” other officers named in the complaint, who had also responded to scene and were also aware of the facts surrounding the ongoing criminal action. Doe, 161 Ill. 2d at 391. This court found the distinguishing factor to be the control that Horka exercised over the crime scene and over other officers who responded to the scene. Doe, 161 Ill. 2d at 390-91. See also Calloway v. Kinkelaar, 168 Ill. 2d 312, 323 (1995) (acknowledging the significance of the element of control in Doe: “This officer [Horka] 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“).
What emerges from this court‘s decision in Doe is a fact-specific application of section 2-202 that bears some striking similarities to an application of the special duty exception to the public duty rule. The special duty exception to the public duty rule requires that (1) the municipality must be uniquely aware of the particular danger or risk to which plaintiff is exposed; (2) there must be
Our review of Doe‘s application of section 2-202 reveals three elements of importance which distinguish Doe from the case now before us. First, and most obvious, in Doe, Officer Horka actually responded to the scene and, second, he was, at least ostensibly, engaged in “the execution or enforcement” of the law when he assumed a supervisory role over the investigation and law enforcement activities at the scene. As plaintiff acknowledges, the police in this case did not respond at all. Even if they had, they would have been providing service in the nature of a community caretaking function, not “enforcing or executing” the law, as this court has heretofore interpreted that phrase. As we stated in Aikens, “Section 4-102 immunity may apply in the context where police officers are simply ‘providing [or failing to provide] police services,’ but section 2-202 immunity requires more particular circumstances for its application, i.e., an act or a course of conduct ‘in the execution or enforcement’ of
In sum, we hold that the plain language of section 4-102 of the Tort Immunity Act immunizes defendants under the facts of this case. Section 2-202 does not apply in this instance as an exception to section 4-102 immunity because defendants were not executing or enforcing the law and they did not exercise control over Hays. Although we recognize that there may be additional exceptions to the application of section 4-102 where a legislative enactment identifies a specially protected class of individuals to whom statutorily mandated duties are owed (see Moore v. Green, 219 Ill. 2d 470, 487-91 (2006);
For the foregoing reasons, we affirm the judgment of the appellate court.
Affirmed.
JUSTICE McMORROW, dissenting:
At issue in this appeal is whether defendants in this action—various counties and municipalities, as well as their agents and employees—under the facts presented, are absolutely immune from liability based upon section 4-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (
Pertinent to the instant cause, section 4-102 of the Tort Immunity Act provides:
“Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police
protection service is provided, for failure to provide adequate police protection or service ***.” 745 ILCS 10/4-102 (West 2002).
The majority affirms the circuit court‘s dismissal of plaintiff‘s complaint on the basis that defendants are completely immunized from plaintiff‘s claims pursuant to section 4-102 of the Tort Immunity Act (
More specifically, I explained in Barnett that “the general rationale for granting public entities the protection of immunities not enjoyed by private entities is the significant expense and burdens placed upon the government” when negligence on the part of local public entities or officials carrying out their government duties results in injuries to the public and such negligence lawsuits “are permitted to flourish unchecked.” Barnett, 171 Ill. 2d at 403-04 (McMorrow, J., dissenting). It was
Since Barnett, I have adhered to my belief that the policies underlying grants of immunity for simple negligence are distinguishable from any justification for blanketing deliberate governmental misconduct with immunity. See In re Chicago Flood Litigation, 176 Ill. 2d 179, 213-14 (1997) (McMorrow, J., concurring in part and dissenting in part); Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 354 (1998) (McMorrow, J., concurring in part and dissenting in part); Henrich v. Libertyville High School, 186 Ill. 2d 381, 401-02 (1998) (McMorrow, J., dissenting); Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 501-10 (2001) (McMorrow, J., concurring in part and dissenting in part); Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 488-90 (2002) (McMorrow, J., concurring in part and dissenting in part); Moore v. Green, 219 Ill. 2d 470, 491-96 (2006) (McMorrow, J., specially concurring). I note that my conclusion in Barnett that the legislature did not intend to immunize willful and wanton misconduct in the immunity provisions of section 3-108 was validated when the General Assembly passed Public Act 90-805 (Pub. Act 90-805, eff. December 2, 1998), which amended section 3-108 to exclude willful and wanton conduct from the immunity granted by the statute. My conviction remains unwaivering that deliberate acts of governmental misconduct are not protected under the Tort Immunity Act by provisions which remain
In the matter at bar, the majority, based upon the Barnett rationale, interprets section 4-102 of the Tort Immunity Act (
The majority states that although it “firmly believe[s] that citizens have a right to expect the police to respond in a situation like this, the issue here is whether section 4-102 of the Tort Immunity Act immunizes the defendants from liability and the consequent payment of public funds in satisfaction of an individual‘s damage claims.” 219 Ill. 2d at 522. It is my view that blanket immunity should not be afforded to acts performed by local governmental entities or government officials in bad faith, especially where the provision of life-and-death police protection services are at issue. It is evident to me
Accordingly, I respectfully dissent from the majority‘s conclusion that intentional misconduct by a local public entity or employee is shielded by the provisions contained within section 4-102 of the Tort Immunity Act (