DeSmet ex rel. v. County of Rock Island
| Decision Date | 20 April 2006 |
| Docket Number | No. 100261.,100261. |
| Citation | 219 Ill.2d 497,848 N.E.2d 1030 |
| Parties | Mary L. DeSMET, as Personal Representative of the ESTATE OF Doris F. HAYS, Deceased, Appellant, v. The COUNTY OF ROCK ISLAND, Illinois, et al., Appellees. |
| Court | Illinois Supreme Court |
Michael W. Rathsack, Chicago (Steven K. Jambois, of counsel), for appellant.
Robert J. Noe, of Bozeman, Neighbour, Patton & Noe, L.L.P., Moline (Heather G. Rouleau, of counsel), for appellees County of Rock Island et al.
Clifford G. Kosoff, Jane M. May, of O'Halloran, Kosoff, Geitner & Cook, P.C., Northbrook, for appellees County of Henry, Illinois, et al.
Peter R. Jennetten, of Quinn, Johnston, Henderson & Pretorius, Peoria, for appellees City of Moline, Illinois, et al.
John P. Fleming, Shelley McCormick, of Fleming & Umland, Peoria, for appellees Village of Orion and Lori Sampson.
Greg G. Chickris, East Moline, for appellee City of East Moline.
The plaintiff, Mary L. DeSmet, as personal representative of the estate of the decedent, Doris F. Hays (Hays), filed a multicount complaint in the circuit court of Rock Island County naming several local governmental entities, and their various employees, parties defendant. Plaintiff's complaint alleged that each violated a duty to the plaintiff's decedent and was liable to plaintiff pursuant to the provisions of the Survival Act (755 ILCS 5/27-6 (West 2002)) and the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2002)). All defendants moved to dismiss, arguing that they owed no duty to Hays and they were, in any event, immune under the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/1-101 et seq. (West 2002)). Although the defendants raised the applicability of several sections of the Act, all specifically argued they were immune from liability under the provisions of section 4-102 of the Act (745 ILCS 10/4-102 (West 2002)). After a hearing, the circuit court dismissed plaintiff's complaint with prejudice, ruling that section 4-102 immunity applied. Plaintiff timely filed notice of appeal, and the appellate court affirmed. No. 3-03-0964 (unpublished order under Supreme Court Rule 23). We granted the plaintiff's petition for leave to appeal (177 Ill.2d R. 315), and now affirm the judgment of the appellate court.
The record, for purposes of the motions to dismiss,1 reflects that on April 5, 2002 Doris Hays was driving her vehicle on U.S. Route 150 in rural Rock Island County when it left the road and ran into a ditch. A passing motorist witnessed the vehicle's departure from the roadway and used her cell phone to report her observation to Lori Sampson, clerk of the Village of Orion. After Sampson received that telephone call, she phoned Christine Wrigley, the dispatcher for Henry County.
Sampson told Wrigley that she had received a call from a motorist who said she had witnessed a vehicle traveling at a high rate of speed go off Route 150 in Rock Island County, just over the Henry County/Rock Island County line. Wrigley asked Sampson: "Okay, did they wreck?" Sampson replied that the caller "said she believed they had to of because they were traveling at such a high rate of speed." Sampson noted that the caller had not stopped to verify that the vehicle had wrecked, stating, "She continued on her way." Sampson told Wrigley that she did not have a vehicle description; however, she described the area that the caller had referred to as just over the Rock Island County line, "where the couple of houses are at in the ditch where it's such a mess and they've got all that junky equipment and so on." Wrigley then told Sampson she would contact Rock Island County.
Instead of contacting Rock Island County, however, Wrigley notified the City of Moline and the City of East Moline via the Moline-East Moline Dispatch Center (Dispatch Center). Wrigley informed dispatcher Debra Roman that she had received a report of a vehicle "down in the ditch" on Route 150 "at the Rock Island, Henry County line * * * on the Rock Island County side by two houses with a lot of junk in the yard." Wrigley indicated she did not have a vehicle description.
Roman then telephoned Rock Island County at its sheriff's department and reported the incident to Myrtle DeWitte, a dispatcher for Rock Island County. The following conversation ensued between the Dispatch Center and Rock Island County:
"Rock Island County dispatcher Myrtle DeWitte: Radio, Sergeant DeWitte.
Moline-East Moline dispatcher Debra Roman: Hello, Myrtle, this is Deb at Moline.
DeWitte: Hi.
Roman: Henry County called.
DeWitte: Um hum.
Roman: To tell me about a vehicle in the ditch.
DeWitte: Okay.
Roman: On Route 150.
DeWitte: Uh huh.
Roman: And it's right at the Rock Island County, Henry County line.
DeWitte: Oh, heaven forbid they would handle it.
Roman: Well, I know.
DeWitte: Okay.
Roman: They call us instead of calling you.
DeWitte: (Laughter) Okay, what kind of vehicle, did they say?
Roman: Uh, no they didn't know, this is a third party call.
DeWitte: Okay.
Roman: By some houses or something that, couple houses that have a bunch of junk in the yard.
DeWitte: Oh, okay, we'll check on it.
Roman: Ya, that'll, that'll narrow it.
DeWitte: Ya, that'll get it for us.
Roman: Ya.
DeWitte: Okay, thanks."
None of the parties contacted responded to the scene on the day the calls were made. On that day, Doris Hays' family also notified Rock Island County that she was missing. Three days later, Hays' body was found lying outside her vehicle at the scene of the accident.
On March 3, 2003, plaintiff, Mary DeSmet, as personal representative of the estate of the decedent, Doris F. Hays, filed a 24-count complaint in the circuit court of Rock Island County naming as parties defendant: Rock Island County; Michael Grehan, the sheriff of Rock Island County; Myrtle DeWitte, a dispatcher for Rock Island County; Henry County; Gilbert Cady, the sheriff of Henry County; the Village of Orion; Lori Sampson, clerk of the Village of Orion; the City of Moline; the City of East Moline; the Moline-East Moline Dispatch Center; Debra Roman, dispatcher for the Dispatch Center; and Steven Etheridge, the police chief of the City of Moline. Plaintiff was subsequently granted leave to file an amended complaint. Defendants thereafter filed motions to dismiss plaintiff's amended complaint pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2002)), relying principally on section 4-102 of the Tort Immunity Act (745 ILCS 10/4-102 (West 2002)). Various defendants also relied on the public duty rule, as well as sections 2-106, 2-109, 2-201, 2-204, 2-210, 2-212, 3-108, and 5-101 of the Tort Immunity Act (745 ILCS 10/2-106, 2-109, 2-201, 2-204, 2-210, 2-212, 3-108, 5-101 (West 2002)), and section 3.150 of the Emergency Medical Services (EMS) Systems Act. 210 ILCS 50/3.150 (West 2002).
At the hearing on the motions to dismiss, in response to certain arguments raised by defendants, the plaintiff suggested that the complaint "alleged facts sufficient to show willful and wanton conduct." When the circuit court observed that the complaint "specifically used the word `negligence'" and that it "looks to be pled in negligence," counsel for plaintiff responded, "[T]hat being noted, if this court was inclined to make a ruling today or in the future based on the words of negligence in there, we would ask to amend it to just change those words, even though the facts we think are sufficient." The circuit court agreed that point was "easily cured by amendment." However, the court was never presented with a written motion to amend, and it did not make a ruling on the plaintiff's offer to do so. The circuit court ultimately dismissed plaintiff's complaint with prejudice, ruling that section 4-102 immunized all defendants.
On appeal, plaintiff contended that the circuit court erred in granting defendants' motion to dismiss, arguing that (1) the immunity provided by section 4-102 of the Act was not available to the defendants; (2) the "public duty rule" does not apply to this case; and (3) the defendants voluntarily undertook a duty to help Hays when they each received telephone calls informing them of the accident and then forwarded this information to another party. The appellate court held that section 4-102 immunity applied to all defendants. Consequently, the court determined there was no need to address plaintiff's other issues. No. 3-03-0964 (unpublished order under Supreme Court Rule 23).
At the outset, we note that immunity under the Tort Immunity Act is an affirmative matter properly raised in a section 2-619 motion to dismiss. Governmental entities bear the burden of proving their immunity under the Act. Van Meter v. Darien Park District, 207 Ill.2d 359, 370, 278 Ill.Dec. 555, 799 N.E.2d 273 (2003). When a court rules on a section 2-619 motion to dismiss, it must interpret all pleadings and supporting documents in the light most favorable to the nonmoving party. Van Meter, 207 Ill.2d at 367-68, 278 Ill.Dec. 555, 799 N.E.2d 273, quoting In re Chicago Flood Litigation, 176 Ill.2d 179, 189, 223 Ill.Dec. 532, 680 N.E.2d 265 (1997). Our review of a section 2-619 dismissal is de novo. Van Meter, 207 Ill.2d at 368, 278 Ill.Dec. 555, 799 N.E.2d 273.
Before this court, plaintiff presents three issues for our consideration, all of which concern the applicability of section 4-102 of the Act. We set forth those issues precisely as plaintiff has phrased them: (1) whether a municipality that sends no assistance whatsoever in response to a request for help at an accident scene can claim the immunity provided by section 4-102 of the Tort Immunity Act for failure to provide adequate police or service; (2) whether a call placed for help at an accident scene automatically triggers a police search rather than a paramedic...
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