JEAN WARE, Independent Adm‘r of the Estate of Kelly McKinnell, Deceased, et al., Plaintiffs-Appellants, v. THE CITY OF CHICAGO, Defendant-Appellee (L.G. Properties Company et al., Defendants).
No. 1-05-4139
First District (3rd Division)
August 1, 2007
375 Ill. App. 3d 574
Accordingly, we affirm defendant‘s convictions but vacate the imposition of concurrent sentences and remand this case solely for the imposition of consecutive sentences pursuant to
Affirmed in part and vacated in part; cause remanded.
KARNEZIS and CUNNINGHAM, JJ., concur.
JEAN WARE, Independent Adm‘r of the Estate of Kelly McKinnell, Deceased, et al., Plaintiffs-Appellants, v. THE CITY OF CHICAGO, Defendant-Appellee (L.G. Properties Company et al., Defendants).
First District (3rd Division) No. 1-05-4139
Opinion filed August 1, 2007.
Mara S. Georges, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Sara K. Hornstra, Assistant Corporation Counsel, of counsel), for appellee.
JUSTICE GREIMAN delivered the opinion of the court:
This case appears before us on interlocutory appeal pursuant to
As a result of the June 2003 Lincoln Park porch collapse, plaintiffs Jean Ware, as independent administrator of the estate of Kelly McKinnell, deceased, et al., filed the underlying consolidated negligence complaints against defendant City of Chicago. The circuit court denied the City‘s subsequent motion to dismiss those complaints; however, it certified the following three questions, which we review on appeal: (1) whether the trial court erred in holding that plaintiffs stated a legally sufficient claim that the City breached a duty to them when its inspectors allegedly committed acts or omissions in the execution or enforcement of the City‘s building code which amounted to willful and wanton conduct; (2) whether the trial court erred in holding that the plaintiffs’ claims were not barred by sections 2-103, 2-205, 2-105 and 2-207 of the
The facts underlying this case surround the widely publicized porch collapse that occurred on June 28, 2003, resulting in 13 deaths and injuries to many others. At approximately 12:30 a.m., the back porch of the third-floor apartment located at 713 West Wrightwood,
Nearly 40 of the decedents’ estates and injured persons filed negligence complaints, which were consolidated for purposes of pretrial motions, against the building owners, building managers and the City of Chicago.1 In relevant part, the plaintiffs claimed, inter alia, that the City‘s acts or omissions regarding inspection of the subject porch constituted willful and wanton misconduct, thereby violating the City‘s duty to them. Collectively, the plaintiffs specifically alleged that the City failed to:
“a. inspect the porch adequately, for Building Code violations, for deviations from ordinary and customary construction practices;
b. train inspectors to identify Building Code violations or deviations from ordinary and customary construction practices;
c. supervise inspectors to ensure identification of Building Code violations or deviation from ordinary and customary construction practices;
d. employ qualified inspectors;
e. discover that the porch had been built without a permit;
f. ensure that Building Code standards were followed;
g. provide sufficient time for an effective inspection; and
h. end personal relationships with building owners that permitted custom and practice of passing noncompliant buildings as compliant.”
In response, the City filed a combined motion to dismiss pursuant to
During the hearing on defendant‘s motion to dismiss, the plaintiffs additionally argued that the porch, which was built without a permit in 1998, did not comply with Chicago building code requirements because it did not have anchored support beams; the porch‘s square footage was excessive; it did not have an adequate live load capacity; and it was built with an unacceptable grade of wood. Plaintiffs further alleged that at least two inspectors visited the building on separate occasions after the porch was built; however, neither inspector reported
Despite its finding, the circuit court subsequently granted the City‘s motion requesting that it certify the previously noted questions3 for interlocutory appeal pursuant to Rule 308 because the court‘s opinion involved questions of law upon which substantial ground for differences of opinion existed. See
We review the legal questions presented on interlocutory appeal de novo. Bajalo v. Northwestern University, 369 Ill. App. 3d 576, 580 (2006).
We first provide a backdrop for the legal premises applicable to the instant case. In 1965, the legislature enacted the Tort Immunity Act, replacing the previously abolished doctrine of sovereign immunity (see Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11 (1959)), to protect local public entities and public employees from li-
It is well established that the Tort Immunity Act does not impose new duties on a public entity; rather, it merely confers immunities and defenses. See
Another important legal premise implicated in the instant appeal is the common law public duty rule, which generally establishes that “a municipality or its employees [are] not liable for failure to supply general police or fire protection.” Huey v. Town of Cicero, 41 Ill. 2d 361, 363 (1968). This court has since determined that “there is no common law duty to the general public for a municipality‘s failure to enforce an ordinance or building code.” Millerick v. Village of Tinley Park, 272 Ill. App. 3d 738, 740 (1995). The policy supporting the rule is that a municipality‘s duty is to protect the well-being of the community at large and not specific members of the public. Zimmerman, 183 Ill. 2d at 44.
The supreme court recently recognized the public duty rule in DeSmet, the case that this court was directed to consider in reviewing the case at bar. Although it ultimately declined to resolve the full extent of the rule‘s applicability by assuming the municipality at issue owed a duty in order to resolve the ultimate question of immunity, the supreme court engaged in a discussion regarding the existence of the rule in light of viable case law. DeSmet, 219 Ill. 2d at 506-09. The supreme court acknowledged that, in Zimmerman and Huey, it previ-
Additionally, because the supreme court‘s findings in Doe and DeSmet play an important role in the instant decision, we believe it is necessary to provide the facts of those cases. One of the immunities at issue in both Doe and DeSmet, and also at issue in the case at bar, is section 2-202 of the Tort Immunity Act, which posits:
“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.”
745 ILCS 10/2-202 (West 2002) .
In Doe, Jane Doe was sexually assaulted and threatened by an intruder in her apartment, as her two children looked on. Doe, 161 Ill. 2d at 381. Jane eventually ran outside of the apartment; however, the intruder followed, beat and again threatened her. Doe, 161 Ill. 2d at 381. Jane escaped, but the intruder locked himself and her children inside the apartment. Doe, 161 Ill. 2d at 381. Jane‘s neighbors called 911, and, after several officers arrived on the scene, she described what had occurred to Officer Horka, informing him that her children were still in danger inside the apartment. Doe, 161 Ill. 2d at 381-82. Despite Jane and her neighbors’ repeated requests, Officer Horka refused to break down the locked door because he did not want to be responsible for the property damage. Doe, 161 Ill. 2d at 382. Jane assured Officer Horka that she would pay for any resulting damage, but he refused. Doe, 161 Ill. 2d at 382. As a result, Jane attempted to rescue her children herself, but several officers restrained her. Doe, 161 Ill. 2d at 382. Jane‘s neighbors were also prevented from attempting to break down the door. Doe, 161 Ill. 2d at 382.
Officer Horka continued to refuse to enter the apartment despite direct orders from his supervisor; knowledge that both the rear balcony window and door were ajar; and an offer by paramedics for a
Conversely, in DeSmet, an anonymous caller reported that a vehicle ran into a ditch adjacent to a road, and although the information was passed between several public employees in two different counties, no one responded. DeSmet, 219 Ill. 2d at 500-02. The supreme court ultimately determined that the implicated government entities and employees were immune from liability and did not engage in willful and wanton conduct. DeSmet, 219 Ill. 2d at 521. The court expressly distinguished the facts of DeSmet from Doe, where: (1) the police did not respond to the scene; (2) if the police had responded to the scene, they would not have been enforcing or executing a law; and (3) the police did not exert control over the scene and therefore did not alter the circumstances, for better or worse. DeSmet, 219 Ill. 2d at 520-21.
Keeping these principles in mind, we now turn to the first question certified by the circuit court, namely, whether it was correct in determining that plaintiffs stated a legally sufficient claim that the City breached a duty owed to them. In denying the City‘s motion to dismiss pursuant to section 2-615 of the Code (
Notwithstanding, there is no such duty at common law (see Sparks v. Starks, 367 Ill. App. 3d 834, 838 (2006)) and, as previously announced, the Tort Immunity Act does not create new bases for liability. Village of Bloomingdale, 196 Ill. 2d at 490. Rather, willful and wanton conduct is only considered, after we have first found that the plaintiff is owed a duty by the municipality, in analyzing whether it is liable for breach of that duty or whether it is immune under the Tort Immunity Act. See Village of Bloomingdale, 196 Ill. 2d at 490. Consequently, plaintiffs cannot rely on the language of section 2-202 of the Tort Immunity Act to fashion a common law duty. Accordingly, we answer the first certified question in the affirmative and conclude that the circuit court erred in finding that plaintiffs stated a legally sufficient claim that the City owed them a duty to protect against the inspectors’ willful and wanton conduct.
Although failure to sufficiently plead a legal duty defeats plaintiffs’ negligence claims, assuming, arguendo, that the City owed them a duty, we consider the next question certified by the circuit court. The second certified question asks whether the circuit court erred in holding that plaintiffs’ claims were not barred by sections 2-103, 2-205, 2-105 and 2-207 of the Tort Immunity Act. In denying the City‘s motion to dismiss pursuant to section 2-619 of the Code (
When interpreting an immunity provision, we must ascertain and give effect to the legislature‘s intent by relying on the language used in the Tort Immunity Act, construing each word in its context and ensuring that no term is rendered superfluous or meaningless. DeSmet, 219 Ill. 2d at 509-10. The legislature, and not this court, has the exclusive authority to extend the existing immunities; therefore, where the language of the immunity is clear and unambiguous, we
According to section 2-105 of the Tort Immunity Act:
“A local public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than its own, to determine whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.”
745 ILCS 10/2-105 (West 2002) .
Moreover, section 2-207 of the Tort Immunity Act provides:
“A public employee is not liable for an injury caused by his failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than that of the local public entity employing him, for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.”
745 ILCS 10/2-207 (West 2002) .
Further, sections 2-103 and 2-205 of the Tort Immunity Act state that local public entities and public employees are “not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.”
Plaintiffs contend that their claims are not barred by the Tort Immunity Act because those provisions advanced by the City do not provide blanket immunity and section 2-202, excepting willful and wanton conduct, applies to the instant case. Defendant responds that sections 2-105, 2-207, 2-103 and 2-205 of the Tort Immunity Act squarely apply here and provide unqualified immunity. Defendant further argues that section 2-202 of the Tort Immunity Act does not act as an exception to and override the otherwise applicable provisions.
We determine that the City was immunized from liability against plaintiffs’ allegations that it failed to properly inspect the porch in question and failed to report that the porch construction violated several building codes. Relying on the clear language of the immunities at issue, we conclude that their application bars plaintiffs’ negligence claims against the City.
Plaintiffs argue that sections 2-105 and 2-207 expressly immunize only negligent conduct and therefore the conduct alleged in their complaint, willful and wanton, is not protected. We are reminded that the legislature has sole authority to extend, limit and condition existing immunities. See DeSmet, 219 Ill. 2d at 510. Indeed, the
Further, we are not persuaded by plaintiffs’ argument that section 2-202 of the Tort Immunity Act, excepting willful and wanton conduct from a public employee‘s enforcement of a law (
Nonetheless, even if we determined that section 2-202 conjunctively applied, plaintiffs cannot satisfy the requisite elements for its application, as those elements emerged from Doe and were established in DeSmet. See DeSmet, 219 Ill. 2d at 519-20. The supreme court noted that, in order to find an exception to the public duty rule for willful and wanton conduct, the complaint must establish that: (1) the municipality was uniquely aware of the particular danger or risk to which the plaintiff is exposed; (2) specific acts or omissions by the municipality occurred; (3) the specific acts were willful in nature; and (4) the injury occurred while the plaintiff was under the direct and immediate control of municipal employees. DeSmet, 219 Ill. 2d at 519-20, citing Doe, 161 Ill. 2d at 386 (noting that, although the special duty doctrine cannot override statutory immunities, “a fact-specific application of section 2-202 *** bears some striking [similarity] to an application of the special duty exception to the public duty rule“). The Tort Immunity Act further defines willful and wanton conduct as “a course of action which shows an actual or deliberate intention to cause harm which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property.”
We conclude, based on the limited facts before this court, that plaintiffs would have a difficult time demonstrating that the City acted willfully and wantonly, as the conduct is defined by the Tort Immunity Act. We further find that plaintiffs cannot establish that they were under the “direct and immediate” control of the City or its inspectors when the porch collapsed. Cf. Doe, 161 Ill. 2d at 390-91 (finding that the officer willfully and wantonly exerted control over the scene by failing to rescue the at-risk children from the intruder inside the locked apartment and by further barring the mother, neighbors and other officers from entering the apartment). At oral argument, plaintiffs argued that the control element was satisfied when they alleged that the City inspected the porch; knew that it was not safe; and failed to act. We disagree. Such a broad interpretation is unreasonable as it has the potential of bringing virtually every porch within city limits under the exception, thus rendering the immunity meaningless. Consequently, we also answer the second certified question in the affirmative and conclude that the circuit court erred in finding that plaintiffs’ claims were not barred by sections 2-103, 2-205, 2-105 and 2-207 of the Tort Immunity Act.
Finally, we decline to address the circuit court‘s third certified question because, and the parties agree, its resolution requires a
Accordingly, we answer the certified questions in the affirmative and reverse the circuit court‘s denial of defendant‘s motion to dismiss.
Reversed.
THEIS, P.J., and CUNNINGHAM, J., concur.
ROBERT P. TAYLOR et al., Plaintiffs-Appellants, v. THE ZONING BOARD OF APPEALS OF THE CITY OF EVANSTON et al., Defendants-Appellees.
First District (4th Division) No. 1-05-0374
Opinion filed August 23, 2007.