Burdinie v. Village of Glendale Heights

• Decision Date: 30 November 1990
• Docket Number: No. 69965,69965
• Citation: Burdinie v. Village of Glendale Heights, 565 N.E.2d 654, 139 Ill.2d 501, 152 Ill.Dec. 121 (Ill. 1990)
• Parties: , 152 Ill.Dec. 121 George BURDINIE, Appellee, v. The VILLAGE OF GLENDALE HEIGHTS, Appellant.
• Court: Illinois Supreme Court

Page 654

565 N.E.2d 654

139 Ill.2d 501, 152 Ill.Dec. 121

George BURDINIE, Appellee, v. The VILLAGE OF GLENDALE HEIGHTS, Appellant.

No. 69965.

Supreme Court of Illinois.

Nov. 30, 1990.

O'Reilly, Cunningham, Norton & Mancini (James L. DeAno, of counsel), Wheaton for appellant.

Paul Harrison Stacey, Wheaton, for appellee.

Justice STAMOS delivered the opinion of the court:

Defendant, Village of Glendale Heights, owns and operates a municipal sports complex which includes public swimming facilities. Plaintiff, George Burdinie, brought this action against defendant in the circuit court of Du Page County, seeking damages for physical injuries plaintiff allegedly sustained while participating in an adult swimming class held at defendant's sports complex. The trial court granted defendant's motion to dismiss counts II and III of plaintiff's complaint. (Ill.Rev.Stat.1989, ch. 110, par. 2-615.) The appellate court reversed. (193 Ill.App.3d 1109 (unpublished order under Supreme Court Rule 23).) We granted defendant's petition for leave to appeal (107 Ill.2d R.315(a)).

BACKGROUND

A trial court should dismiss a cause of action on the pleadings only if it is clearly apparent that no set of facts can be proven which will entitle a plaintiff to recover. (Stenwall v. Bergstrom (1947), 398 Ill. 377, 383, 75 N.E.2d 864; Curtis v. Birch (1983), 114 Ill.App.3d 127, 129, 69 Ill.Dec. 873, 448 N.E.2d 591.) When the legal sufficiency of all or part of a complaint is challenged by a section 2--615 motion to strike or dismiss, all well-pleaded facts in the attacked portions of the complaint are to be taken as true (Miner v. Gillette Co. (1981), 87 Ill.2d 7, 19, 56 Ill.Dec. 886, 428 N.E.2d 478) and a reviewing court must determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. A motion to strike a portion of a complaint does not admit conclusions of law or fact unsupported by the specific factual allegations upon which such conclusions rest. (Curtis, 114 Ill.App.3d at 129, 69 Ill.Dec. 873, 448 N.E.2d 591.) Therefore, we will consider only the facts of this case as plaintiff presented them in his complaint.

On July 2, 1986, plaintiff registered to participate in defendant's general recreational program of adult swimming classes, held at the municipal sports complex. For a $10 fee, defendant was to "provide beginner adult swimming lessons by competent, trained instructors." On July 16, 1986, defendant allegedly "breached its agreement" with plaintiff by failing to provide a "competent, trained instructor," in that the swimming instructor "negligently and in ignorance and disregard for the safety and health" of plaintiff, and "knowing that plaintiff was a non-swimmer," instructed plaintiff to "jump" into the shallow end of the concrete swimming pool. As a result, plaintiff struck the bottom of the pool with his heel, which caused him to suffer "pain and serious injury to his back, neck, leg and other parts of his body." Plaintiff claimed medical expenses and lost wages as his damages.

Count I of the complaint alleged breach of contract and is not the subject of this appeal. Count III alleged liability in tort because defendant operated the sports complex and swimming pool as a proprietary function and not in its governmental capacity. The appellate court's order indicated that plaintiff abandoned this issue before that court. Count II alleged liability in tort because defendant had established a "special relationship of control and supervision over the plaintiff."

A. Sovereign Immunity and the Tort Immunity Act

Under the doctrine of sovereign immunity, a governmental unit is immune from tort liability. (Comment, The Special Duty Doctrine: A Just Compromise, 31 St. Louis U.L.J. 409, 410 (1987).) This doctrine has its origins in the common law principles that "the King can do no wrong," and " 'the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.' " (Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill.2d 11, 20, 163 N.E.2d 89; M. Polelle & B. Ottley, Illinois Tort Law 664 (1985), quoting Kawananakoa v. Polyblank (1907), 205 U.S. 349, 353, 27 S.Ct. 526, 527, 51 L.Ed. 834, 836.) In recent years, however, both Federal and State governments have either modified or abolished this rule. See M. Polelle & B. Ottley, Illinois Tort Law 664 (1985).

Specifically, this court abolished governmental immunity in 1959. (Molitor, 18 Ill.2d at 21-22, 163 N.E.2d 89.) In response to the Molitor case, the General Assembly enacted the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (Ill.Rev.Stat.1989, ch. 85, pars. 1-101 through 9-107). The Act adopted the general principle that local governmental units are liable in tort but limited this with an extensive list of immunities based on specific government functions.

For example, a local public entity is not liable for adopting or failing to adopt a particular enactment or for failing to enforce any law. (Ill.Rev.Stat.1989, ch. 85, par. 2-103.) There is no municipal liability for negligence connected with the administration of permits, licenses, certificates, and other authorizations (Ill.Rev.Stat.1989, ch. 85, par. 2-104), for negligence connected with the inspection of property for health or safety hazards (Ill.Rev.Stat.1989, ch. 85, par. 2-105), for negligence connected with injuries resulting from unsafe conditions of municipal property if the local government entity had no actual or constructive notice of the unreasonably unsafe condition (Ill.Rev.Stat.1989, ch. 85, par. 3-102), for negligence resulting in injuries occurring on public property intended for recreational purposes, unless the local public entity is guilty of willful and wanton conduct (Ill.Rev.Stat.1989, ch. 85, par. 3-106), for the negligent failure to supervise an activity on public property (Ill.Rev.Stat.1989, ch. 85, par. 3-108), or for negligence resulting in injuries incurred during participation in hazardous recreational activity (Ill.Rev.Stat.1989, ch. 85, par. 3-109).

We also note that the Illinois Constitution of 1970 expressly abrogated the doctrine of sovereign immunity "[e]xcept as the General Assembly may provide by law." (Ill. Const.1970, art. XIII, § 4.) Therefore, the tort liability of a municipality such as defendant is expressly controlled by constitutional provision and legislative prerogative as embodied in the Tort Immunity Act.

B. The Special Duty Doctrine

Plaintiff, however, did not rely on the Tort Immunity Act for defining the cause of action in his complaint. Instead, plaintiff relied on a common law exception to the doctrine of governmental immunity, the "special duty," or "special relationship," doctrine.

This doctrine has been invoked in two basic factual situations. The first is where a plaintiff sues a municipality for failure to enforce a law or ordinance. Illinois courts have generally upheld the common law principle that municipalities are not liable in tort to members of the general public for failure to enforce local laws or ordinances (Arizzi v. City of Chicago (1990), 201 Ill.App.3d 368, 371, 147 Ill.Dec. 68, 559 N.E.2d 68; Lakeside Condominium "C" Association v. Frediani Developers, Inc. (1985), 135 Ill.App.3d 972, 973, 90 Ill.Dec. 686, 482 N.E.2d 665; see Ill.Rev.Stat.1989, ch. 85, par. 2-103) or for the negligent exercise of municipal authority pursuant to a governmental duty and for a governmental purpose (Fryman v. JMK/Skewer, Inc. (1985), 137 Ill.App.3d 611, 614, 92 Ill.Dec. 178, 484 N.E.2d 909), unless plaintiffs can show that the municipalities owe them a special duty that is different from its duty to the general public (Arizzi, 201 Ill.App.3d at 371-72, 147 Ill.Dec. 68, 559 N.E.2d 68). The special duty can arise in two instances: when the municipality acts in a private instead of a governmental capacity (this situation is not in question in the case at bar) or when it develops a "relationship" to an individual. Arizzi, 201 Ill.App.3d at 372, 147 Ill.Dec. 68, 559 N.E.2d 68.

This "relationship" is created when circumstances arise in which it becomes the duty of the municipality or public official to act on behalf of a specific individual, as opposed to the public at large. In such a case, the negligent failure to carry out this "special" duty is actionable. (Fryman, 137 Ill.App.3d at 617, 92 Ill.Dec. 178, 484 N.E.2d 909.) Traditionally, Illinois courts have established four elements which a plaintiff must prove in order to establish such a relationship/duty:

" '(1) the municipality must be uniquely aware of the particular danger or risk to which the plaintiff is exposed [citation];

(2) there must be allegations of specific acts or omissions on the part of the municipality [citation];

(3) the specific acts or omissions * * * must be either affirmative or wilful in nature [citation]; and

(4) the injury must occur while the plaintiff is under the direct and immediate control of employees or agents of the municipality [citation].' Bell v. Village of Midlothian (1980), 90 Ill.App.3d 967, 970 [46 Ill.Dec. 382, 414 N.E.2d 104]." Fryman, 137 Ill.App.3d at 617, 92 Ill.Dec. 178, 484 N.E.2d 909.

The second factual situation in which the special duty doctrine is invoked is when a plaintiff sues a municipality for injuries negligently caused by police officers or firefighters while performing their official duties. As in the first situation, there is a common law rule which generally exempts municipalities and their employees from tort liability for failure to supply general police or fire protection. (Huey v. Town of Cicero (1968), 41 Ill.2d 361, 363, 243 N.E.2d 214; Anthony v. City of Chicago (1988), 168 Ill.App.3d 733, 736, 119 Ill.Dec. 554, 523 N.E.2d 22.) We have held, however, that when law...