Barnes v. Chicago Housing Authority

• Decision Date: 03 December 2001
• Docket Number: No. 1-00-2856.,1-00-2856.
• Citation: 761 N.E.2d 283,260 Ill.Dec. 439,326 Ill. App.3d 710
• Parties: Johnny R. BARNES, Angela Barnes and Angela Foster, Plaintiffs-Appellants, v. The CHICAGO HOUSING AUTHORITY, a Municipal Corporation, and LeClaire Courts Resident Management Corporation, a Not-for-profit Corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

761 N.E.2d 283

326 Ill. App.3d 710

260 Ill.Dec. 439

Johnny R. BARNES, Angela Barnes and Angela Foster, Plaintiffs-Appellants, v. The CHICAGO HOUSING AUTHORITY, a Municipal Corporation, and LeClaire Courts Resident Management Corporation, a Not-for-profit Corporation, Defendants-Appellees.

No. 1-00-2856.

Appellate Court of Illinois, First District, First Division.

December 3, 2001.

Rehearing Denied January 15, 2002.

John E. Marszalek, Marszalek and Marszalek, John F. Klebba, John F. Klebba, P.C. (Paul R. Karasik, Karasik & Herndobler, of counsel), Chicago, for Appellants.

David E. Neumeister, Querrey & Harrow, Ltd., Chicago, for Chicago Housing Authority.

James Kirk Perrin, Chicago, for LeClaire Courts Resident Management Corporation.

Presiding Justice COHEN delivered the opinion of the court:

Plaintiffs Johnny R. Barnes, Angela Barnes and Angela Foster appeal the dismissal of their third amended complaint against defendant Chicago Housing Authority (CHA), as well as the order of the trial court granting summary judgment in favor of defendant LeClaire Courts Resident Management Corporation (LCRMC), a private, not-for-profit corporation. The issue before the court is one of first impression: whether the LCRMC is a "local public entity" within the meaning of section 1-206 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-206 (West 2000) (the Tort Immunity Act)). If the LCRMC is determined to be a "local public entity," then the LCRMC is immune from liability for its alleged failure to provide adequate security at the LeClaire Courts public housing development. 745 ILCS 10/4-102 (West 2000). Should we determine that the LCRMC enjoys immunity under the Act, the plaintiffs then urge us to hold that the legislature exceeded the scope of its authority in extending such immunity to the LCRMC and ask that we declare section 1-206 unconstitutional.

We hold that the trial court correctly dismissed plaintiffs' third amended complaint as to the CHA. We further hold that the LCRMC is a "local public entity" within the meaning of section 1-206, and is therefore immune from plaintiffs' allegations of failure to provide adequate police protection at LeClaire Courts. The trial court correctly entered summary judgment in favor of the LCRMC and we affirm.

BACKGROUND

On June 17, 1994, plaintiff Johnny R. Barnes was visiting his wife and daughter, co-plaintiffs Angela Barnes and Angela Foster, at their residence in the LeClaire Courts public housing development on 43rd Street in Chicago. LeClaire Courts was owned by defendant CHA and managed by defendant LCRMC. While on the LeClaire Courts premises, Mr. Barnes observed his daughter, Angela Foster, being attacked and severely beaten by a group of teenage gang members. When Mr. Barnes attempted to intervene, he was shot by one of the gang members, resulting in permanent paralysis below the waist.

For several years prior to the date of the shooting, the LCRMC had contracted to provide private security services for the LeClaire Courts development. On that date, however, no private security officers were present on the LeClaire Courts premises.

In order to contract for outside security services, the LCRMC was required to submit proposed contracts to the CHA (and ultimately to the United States Department of Housing and Urban Development (HUD)) for review and approval. In this case, the contract in effect between the LCRMC and Network Security, a private security company, had expired prior to the date of the shooting. Prior to the expiration of the Network Security contract, the LCRMC had submitted to the CHA a proposed contract to retain the services of Tight Security, Inc., which was scheduled to begin providing security services on the LeClaire Courts premises on April 1, 1994. However, the CHA had not yet approved funding for the LCRMC's proposed Tight Security contract, resulting in a 6 to 8-week gap in private security coverage at the LeClaire Courts complex. It was during this gap that Mr. Barnes and his daughter were injured.

Several police officers offered deposition testimony that at the time of the shooting, the LeClaire Courts development was hotly contested turf in an armed conflict involving no fewer than nine different street gangs. These officers further testified to a dramatic increase in criminal activity at the LeClaire Courts development in 1994 following the expiration of the Network Security contract.

Johnny Barnes and Angela Foster brought an action to recover damages for injuries sustained during the attack at LeClaire Courts. Plaintiffs' third amended complaint contained eight counts, with different plaintiffs seeking relief under each count.¹ In paragraph 24 of counts I and II, plaintiffs alleged that the CHA committed willful and wanton misconduct in that it:

"A. Failed to adequately police the premises of the LeClaire Courts with its own police force;

B. Failed to act on defendant [LCRMC]'s request for approval to hire a new private security firm for the LeClaire Courts before June 17, 1994;

C. Mismanaged the LeClaire Courts by failing to oversee defendant [LCRMC];

D. Failed to adequately monitor defendant [LCRMC] after defendant [LCRMC] was placed on probation by defendant CHA;

E. Failed to adequately monitor the crime statistics at the LeClaire Courts and therefore failed to recognize that the LeClaire Courts were in a high crime area in need of additional security and/or police; and

F. Increased the danger at the LeClaire Courts by failing to police the premises after the contract with Network Security had not been renewed and after gang activity and incidences of violence increased markedly, and after defendant CHA knew, or should have known, that gang activity and incidences of violence would increase after the contract with Network Security was terminated."

In counts III and IV, plaintiffs alleged negligence against the CHA on identical grounds.

In paragraph 24 of counts V and VI, plaintiffs alleged that the LCRMC committed willful and wanton misconduct in that it:

"A. Failed to renew the contract of the previous security firm without first making certain that a new security firm was in place;

B. Failed to possess and apply the requisite degree of skill and care in managing the premises, in making an oral promise to hire Tight Security, and then not hiring any private security to take the place of Network Security until after June 17, 1994;

C. Failed to protect the plaintiffs from injury when the defendant [LCRMC] knew or should have known of the increased dangers and crime on the premises after the contract with Network Security was not renewed; and

D. Increased the danger on the premises by failing to police the premises after the contract with Network Security was not renewed and gang activity and incidences of violence increased markedly."

In counts VII and VIII, plaintiffs alleged negligence against the LCRMC on identical grounds.

On July 15, 1999, the trial court granted the CHA's motion to dismiss plaintiffs' third amended complaint pursuant to section 2-619 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-619 (West 2000). The trial court found that the CHA was immune from liability pursuant to sections 2-104, 2-201, 3-108 and 4-102 of the Tort Immunity Act. 745 ILCS 10/2-104, 2-201, 3-108 and 4-102 (West 2000). On December 17, 1999, predicated on a finding that the LCRMC was a "local public entity" within the meaning of section 1-206 of the Tort Immunity Act, the trial court: (1) held that the LCRMC was immune from liability under section 4-102 for failure to provide security on the LeClaire Courts premises; and (2) granted the LCRMC's motion for summary judgment. 745 ILCS 10/1-206, 4-102 (West 2000).

Plaintiffs moved for reconsideration of the order granting summary judgment in favor of the LCRMC. Plaintiffs argued that as a private, not-for-profit corporation, the LCRMC was not a "local public entity" within the meaning of section 1-206. Plaintiffs further argued to the trial court that if it construed section 1-206 to cover the LCRMC, then it must find section 1-206 to be unconstitutional in that the General Assembly had exceeded its authority in granting sovereign immunity to a "non-sovereign." The trial court denied plaintiffs' motion to reconsider, specifically finding section 1-206 to be constitutional. This appeal followed.

ANALYSIS

1. CHA

A. Adequate Police Protection

We first consider plaintiffs' argument that the trial court erred in dismissing plaintiffs' third amended complaint as to the CHA. Motions to dismiss pursuant to section 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619 (West 2000)) are reviewed de novo. Neppl v. Murphy, 316 Ill.App.3d 581, 583, 249 Ill. Dec. 736, 736 N.E.2d 1174 (2000).

The trial court ruled that under the Tort Immunity Act, the CHA was immune from liability for both negligence and willful and wanton misconduct as to each of the allegations set forth in subparagraphs 24A through F of plaintiffs' third amended complaint. Plaintiffs do not dispute that the CHA, as a municipal corporation, is a "local public entity" within the meaning of section 1-206 of the Tort Immunity Act. 745 ILCS 10/1-206 (West 2000); Davis v. Chicago Housing Authority, 136 Ill.2d 296, 299-300, 144 Ill.Dec. 224, 555 N.E.2d 343 (1990). Rather, plaintiffs argue that the trial court erred in applying various sections of the Tort Immunity Act to the CHA.

In subparagraphs 24A, E and F, plaintiffs alleged that the CHA failed to provide adequate police protection on the LeClaire Courts premises.² The trial court found the CHA immune from these allegations under section 4-102 of the Tort Immunity Act. Section 4-102 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

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