Carolan v. City of Chi.

• Decision Date: 18 June 2018
• Docket Number: No. 1–17–0205,1–17–0205
• Parties: Margaret CAROLAN, as Independent Executor of the Estate of Michael J. Norton, deceased, and Brittany Norton, Plaintiffs–Appellants, v. The CITY OF CHICAGO, a Municipal Corporation, and Office of Emergency Management & Communications, a Department of the City of Chicago, Defendants, (City of Chicago, Defendant–Appellee).
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 170205

121 N.E.3d 918

428 Ill.Dec. 144

Margaret CAROLAN, as Independent Executor of the Estate of Michael J. Norton, deceased, and Brittany Norton, Plaintiffs–Appellants,

v.The CITY OF CHICAGO, a Municipal Corporation, and Office of Emergency Management & Communications, a Department of the City of Chicago, Defendants,

(City of Chicago, Defendant–Appellee).

No. 1–17–0205

Appellate Court of Illinois, First District, FIRST DIVISION.

June 18, 2018

Baumann & Shuldiner, of Chicago (Deidre Baumann, of counsel), for appellants.

Edward N. Siskel, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Sara K. Hornstra, Assistant Corporation Counsel, of counsel), for appellee.

PRESIDING JUSTICE PIERCE delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs Margaret Carolan, as independent executor of the estate of Michael J. Norton, deceased, and Brittany Norton, the decedent's daughter (collectively, plaintiffs), sued the City of Chicago (City) and the Office of Emergency Management and Communications (OEMC)¹ to recover damages for the death of Michael J. Norton. Plaintiffs alleged that, in May 2009, defendants failed to timely dispatch police in response to a 911 call reporting an armed robbery in progress at Norton's convenience store and that Norton was shot and killed less than two minutes before police arrived. The circuit court of Cook County granted summary judgment in favor of the City on the basis that the City was immune under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) ( 745 ILCS 10/4–102 (West 2008) ), that the City did not owe Norton any duty, and that plaintiffs could not establish either proximate cause or that the City engaged in willful and wanton misconduct. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 In the evening of May 14, 2009, Michael Norton was working in the convenience store he owned at 4759 West North Avenue, Chicago, Illinois, located on the first floor of an apartment building that he owned and operated. Several people entered the store, including one wearing a ski mask and armed with a gun. A passerby saw someone wearing a ski mask inside Norton's store and called 911. OEMC received the 911 call at 7:12 p.m. The passerby placed a second 911 call that OEMC received at 7:17 p.m. At 7:20 p.m., a police unit was dispatched to the scene. Three additional units were dispatched within the next two minutes, and additional units were dispatched thereafter. When police arrived at Norton's store, they found Norton tied up inside a storage area with a gunshot wound

to the head. Medical personnel pronounced Norton dead at the scene.²

¶ 4 Plaintiffs initiated this action 2010 and filed an amended complaint in June 2012. The parties engaged in discovery and the case was set for trial. Plaintiffs voluntarily dismissed their complaint on the eve of trial and timely refiled their complaint in April 2016. The refiled complaint alleged that Norton was shot and killed two minutes before police arrived on the scene and that the failure to dispatch police to an armed robbery in progress until eight minutes after the initial 911 call was "willful and wonton" and "demonstrated a reckless disregard" for Norton's welfare. The refiled complaint asserted wrongful death and survival claims on behalf of Norton's estate and a loss of society claim on behalf of Brittany.

¶ 5 The City moved for summary judgment. The City argued, in relevant part, that under section 4–102 of the Tort Immunity Act, it was immune from any liability for failing to prevent Norton's death, failing to provide adequate police protection or services, or failing to make arrests. Id . The City further argued that it did not owe Norton any common law duty to protect him from a third party attack. Furthermore, the City argued that there was no genuine issue of material fact as to proximate cause because Norton's death was due to a criminal act by a third party and plaintiff could only speculate as to whether an earlier dispatch of police to the scene would have prevented Norton's death. The City's motion was fully briefed, and we summarize the evidence submitted by the parties in connection with the City's motion for summary judgment.

¶ 6 Erin Hansen testified at her deposition that she was the supervisor of investigations for OEMC. She explained that when a 911 call is received, a communications operator obtains the relevant information from the caller and inputs data into a computer aided dispatch (CAD) system. The communications operator then electronically transmits the CAD data to the appropriate police dispatcher, who then assigns field units to the call. For ongoing situations such as a robbery in progress, an operations supervisor follows up on the dispatch functions and monitors the situation. Each 911 call is assigned an event number, event type, and priority level by either the communications operator or the dispatcher. There are five priority levels. Priority 1, is the highest civilian priority level, and indicates a threat to life and includes acts that are in progress that could result in significant loss or damage to property where an arrest could be effectuated. Level 1 contains subcategories A through D, with subcategory A indicating the highest ranking.

¶ 7 Hansen explained that, here, the initial 911 call was received by OEMC at 7:11:57 and was logged by OEMC at 7:12:30 p.m. The call was coded as a "ROBIP," indicating a robbery in progress; was assigned priority level 1A; and was transferred to the appropriate dispatcher. The second 911 call was received at 7:17:19 p.m. and logged at 7:21:23 p.m. OEMC standards provide that a priority 1A call be dispatched within 10 minutes of the call being received. Between 7:20:41 p.m. and 7:21:03 p.m., the dispatcher dispatched four units to 4759 West North Avenue. Hansen could not say for certain why units were not dispatched sooner, but Hansen explained that on May 14, 2009, between 2:50 p.m. and 10:23 p.m., District 25 (which includes 4759 West North Avenue) was under a "radio assignments pending" (RAP), meaning there were more events pending than field units available. Hansen could not be certain that there were actually more events pending than units available but stated that the most likely reason for the eight minute dispatch time was that no units were available for immediate dispatch. OEMC records did not reflect what activities the units that ultimately responded were engaged in prior to being dispatched to 4759 West North Avenue.

¶ 8 On December 29, 2016, the circuit court entered a written order, granting summary judgment in favor of the City. The circuit court concluded that a 911 operator's alleged failure to timely transmit a 911 request was a failure to provide adequate police protection and therefore fell within the immunity provision of section 4–102 of the Tort Immunity Act. See id . The circuit court further concluded that the City's conduct was not willful and wanton because the conduct alleged "could be, at most, characterized as inadvertence or incompetence." The circuit court noted that all available police units were on assignment at the time of the initial 911 call and that police were dispatched within 8 minutes of the initial call, which was within the 10 minute OEMC internal standard. Furthermore, the circuit court concluded that the City did not owe Norton any common law duty to protect him against attacks by a third party because Norton and the City did not stand in any recognized special relationship. Finally, the circuit court found that plaintiffs could not establish proximate cause because the legal cause of Norton's death was the independent criminal act of a third party and legal cause is not established where the alleged negligence only creates a condition that allowed the injury to be possible. Plaintiffs filed a timely notice of appeal.

¶ 9 ANALYSIS

¶ 10 On appeal, plaintiffs argue that the City is not entitled to immunity under section 4–102 of the Tort Immunity Act. Plaintiffs contend that the circuit court misconstrued their claims because "[t]his case is not about what the police did or did not do, it is about the failure of 911 to dispatch police pursuant to an emergency call." Plaintiffs argue our legislature intended the Emergency Telephone System Act ( 50 ILCS 750/15.1 (West 2008) ), to govern immunity for the actions of emergency dispatchers because it is the more recently enacted and specific legislative pronouncement. Plaintiffs further argue that the circuit court erred in finding that plaintiffs could not establish willful or wanton misconduct or proximate cause and that the City did not owe Norton a duty.

¶ 11 Summary judgment is appropriate if the pleadings, depositions, affidavits, and other admissions on file establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2–1005(c) (West 2016); Cohen v. Chicago Park District , 2017 IL 121800, ¶ 17, 422 Ill.Dec. 869, 104 N.E.3d 436. The purpose of summary judgment is not to try a question of fact, but rather to determine whether one exists. Robidoux v. Oliphant , 201 Ill. 2d 324, 335, 266 Ill.Dec. 915, 775 N.E.2d 987 (2002). "In determining whether a genuine issue of material fact exists, the court must construe the pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in favor of the nonmovant." West Bend Mutual Insurance Co. v. DJW–Ridgeway Building Consultants, Inc. , 2015 IL App (2d) 140441, ¶ 20, 396 Ill.Dec. 541, 40 N.E.3d 194. A party moving for summary judgment bears the initial burden of production and may satisfy it by either showing that some element of the case must be resolved in its favor or that there is an absence of evidence to support the nonmoving party's case. Nedzvekas v. Fung , 374 Ill. App. 3d 618, 624, 313 Ill.Dec. 448, 872 N.E.2d 431 (2007). Once the moving p...