Calloway v. Kinkelaar
| Decision Date | 11 May 1994 |
| Docket Number | No. 5-92-0652,5-92-0652 |
| Citation | 633 N.E.2d 1380,261 Ill.App.3d 63 |
| Parties | , 199 Ill.Dec. 389 Helen CALLOWAY, Plaintiff-Appellant, v. Arthur KINKELAAR and County of Effingham, a Municipal Corporation, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Robert E. Brown, Ronald Tulin, Ltd., Charleston, for plaintiff-appellant.
Brad K. Bleyer, Bleyer and Bleyer, Marion, for defendants-appellees.
Plaintiff, Helen Calloway, appeals from an order of the circuit court of Effingham County granting the motions of defendants, Arthur Kinkelaar, as sheriff of Effingham County (hereinafter sheriff), and the county of Effingham (hereinafter county), to dismiss plaintiff's complaint for failure to state a cause of action. The trial court followed the general rule that law enforcement officials have no duty to protect individual citizens from crime, only a duty to protect the general citizenry. We affirm in part, reverse in part, and remand.
Plaintiff brought a four-count complaint against the sheriff and the county for damages she sustained after she was abducted by her estranged husband. Count I, a wilful and wanton count, and count II, a negligence count, are directed against the sheriff for his failure to fulfill an alleged duty to plaintiff by virtue of an order of protection which was previously entered with the express purpose of preventing such abuse and harassment by her estranged husband. (Ill.Rev.Stat.1991, ch. 40, par. 2312-1 (now 750 ILCS 60/201 (West 1992)); ch. 38, par. 112A-4(i) (now 725 ILCS 5/112A-4(a)(i) (West 1992)).) Counts III and IV mirror counts I and II but are directed against the county under a theory of respondeat superior. Plaintiff's complaint alleges that during her marriage, her husband engaged in a course of physically and mentally abusive conduct toward her and her two children, including physical attacks and death threats to plaintiff and threats of her husband to commit suicide. As a result of her husband's violent and abusive conduct, plaintiff was granted an emergency order of protection on March 13, 1991, which prohibited her husband from:
"(a) Harassing, physically abusing, or interfering with the personal liberty of Plaintiff or her children;
(b) Entering or remaining at the home of Plaintiff's parents;
(c) Entering Plaintiff's place of employment at Garden's Restaurant in Effingham, Illinois; [or]
(d) Making telephone calls to Plaintiff's place of employment."
On March 13, 1991, the sheriff personally served the emergency order of protection on the husband, and on March 20, 1991, plaintiff was granted a plenary order of protection. The plenary order of protection was personally served on her husband by the sheriff on the same day it was granted, and thus, the sheriff "knew or should have known of the prohibitions contained therein."
At approximately 5:30 a.m., on April 4, 1991, contrary to the provisions of the order of protection, the husband began making telephone calls to plaintiff at her place of employment. The calls were threatening in nature and included, among other threats, a threat by the husband to kill himself in the presence of plaintiff and their five-year-old daughter if plaintiff did not go to the marital home to pick up their daughter. In response to such threats, plaintiff called her father and asked him to go to the marital home and pick up her daughter. Immediately after calling her father, plaintiff received another call from her estranged husband at which time she advised him that her father was coming to pick up their daughter. The husband responded that he would kill plaintiff's father if he entered the marital home. At approximately 5:50 a.m., plaintiff telephoned the Effingham County Sheriff's Department and advised the dispatcher of the telephone calls she was receiving from her estranged husband, including his threats to kill plaintiff's father. Plaintiff further advised the dispatcher that her husband was armed with a gun and that their minor daughter was with him. Plaintiff provided the dispatcher with the location of the marital home and also told the dispatcher she was going to the marital home herself to ensure the safety of her daughter.
At approximately 6 a.m., the sheriff was notified by his office of the telephone calls and threats made by plaintiff's husband. In response, the sheriff drove to the marital residence and briefly observed it from his squad car. The sheriff left without further investigation. Upon her arrival, plaintiff determined that her daughter and father were not at the marital home. She then returned to the restaurant where she was employed. Shortly after her return, plaintiff received more threatening telephone calls from her estranged husband who told her he saw the sheriff in front of his home. At approximately 7:30 a.m., plaintiff received a telephone call from the sheriff's department dispatcher who asked plaintiff whether she had gone to the marital home. Plaintiff told her she had, and her daughter was safe, but her estranged husband was continuing to make harassing telephone calls to her. Plaintiff "advised and emphasized" to the dispatcher that her estranged husband was in violation of the order of protection. The dispatcher replied that she was aware of the order and had a copy of it in front of her. At 7:50 a.m., the dispatcher again called plaintiff and told her that officers with the sheriff's department recommended that plaintiff call her attorney and seek advice as to how to proceed.
At approximately 8 a.m., plaintiff's husband, armed with a pistol, entered plaintiff's place of employment, grabbed plaintiff by the hair, and forced her at gunpoint to leave with him. At approximately 8:39 a.m., a sergeant with the sheriff's department observed a pickup truck occupied by plaintiff and her estranged husband. The sergeant followed the truck. At approximately 8:47 a.m., two State troopers blocked the road on which the truck was traveling. At approximately 8:50 a.m., the pickup truck stopped at the roadblock, and plaintiff, who was forced by her estranged husband to drive the pickup truck, exited the vehicle and took cover behind one of the squad cars. Law enforcement officials at the scene told plaintiff's husband to place his hands on top of his head and exit the pickup truck. When plaintiff's husband did not respond, the officers discovered that plaintiff's husband had shot himself in the chest.
Plaintiff alleges in her complaint that at all times the sheriff had probable cause to believe plaintiff's husband was in violation of the order of protection and that the sheriff had a duty to prevent further abuses and harassment, including but not limited to providing or arranging transportation for plaintiff to a place of safety and/or arresting her estranged husband. Plaintiff alleges that as a direct and proximate result of several wilful and wanton and/or negligent acts or omissions of defendants, her life was threatened and she was forced to suffer and endure extreme emotional distress and trauma which continues to the present day. Plaintiff was forced to seek psychological counseling and was compelled and will be compelled to spend large sums of money for her psychological care. As a further result, plaintiff was and will be prevented from attending to her usual affairs and duties and has lost and will lose large sums of money which otherwise would have accrued.
The sheriff and the county moved to dismiss plaintiff's complaint for failure to state a cause of action. (Ill.Rev.Stat.1991, ch. 110, par. 2-619 (now 735 ILCS 5/2-619 (West 1992)).) In dismissing the complaint, the trial court found that the facts alleged in each count did not give rise to a duty. Specifically, the trial court stated:
Plaintiff contends that the public duty doctrine is inapplicable under the facts of the instant case because plaintiff was, by virtue of the Illinois Domestic Violence Act of 1968 (the Act) (Ill.Rev.Stat.1991, ch. 40, par. 2311-1 et seq. (now 750 ILCS 60/101 et seq. (West 1992))) and article 112A of the Code of Criminal Procedure of 1963 (), removed from the community at large and elevated to a class of persons requiring special protection or, alternatively, that the General Assembly has statutorily extended the parameters of the common law "special duty" exception to the public-duty doctrine through the Act. Defendant replies that there is no clear indication the General Assembly intended to extend the parameters of the common law "special duty" exception to the public-duty doctrine and urges us to affirm the trial court's order.
It is well settled that the duty of law enforcement officers to preserve a community's well-being is generally not owed to specific individuals but rather to the community at large. (Fessler v. R.E.J., Inc. (1987), 161 Ill.App.3d 290, 112 Ill.Dec. 852, 514 N.E.2d 515; Santy v. Bresee (1984), 129 Ill.App.3d 658, 84 Ill.Dec. 853, 473 N.E.2d 69; Porter v. City of Urbana (1980), 88 Ill.App.3d 443, 43 Ill.Dec. 610, 410 N.E.2d 610.)
"The rule that law enforcement agencies and officers are not liable to third parties for the failure to prevent crime reflects the judgment that to hold otherwise...
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Calloway v. Kinkelaar
...I and III, which were premised on willful and wanton violations of duties imposed by the Domestic Violence Act. (261 Ill.App.3d 63, 199 Ill.Dec. 389, 633 N.E.2d 1380.) We allowed defendants' petition for leave to appeal (145 Ill.2d R. The ultimate issue for this court to determine is whethe......
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Sneed v. Howell
...of the negligence counts, reversed the dismissal of the willful and wanton counts, and remanded. Calloway v. Kinkelaar, 261 Ill. App.3d 63, 199 Ill.Dec. 389, 633 N.E.2d 1380 (1994). The supreme court affirmed and stated that the Domestic Violence Act affords relief for plaintiffs if the pol......
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