Doe v. Calumet City

• Decision Date: 23 November 1992
• Docket Number: No. 1-90-1121,1-90-1121
• Citation: 609 N.E.2d 689,182 Ill.Dec. 155,240 Ill.App.3d 911
• Parties: , 182 Ill.Dec. 155 Jane DOE, for herself and as next friend of Betty Doe, her minor daughter and John Doe, her minor son, Plaintiffs-Appellants, v. CALUMET CITY, an Illinois municipal corporation; James Horka; Daniel Surufka and Kevin Beasley, Calumet City police officers; Village of Burnham, an Illinois municipal corporation; Gregory Giglio, a Burnham police officer; and Ben Valentine, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 689

609 N.E.2d 689

240 Ill.App.3d 911, 182 Ill.Dec. 155

Jane DOE, for herself and as next friend of Betty Doe, her minor daughter and John Doe, her minor son Plaintiffs-Appellants, v. CALUMET CITY, an Illinois municipal corporation; James Horka; Daniel Surufka and Kevin Beasley, Calumet City police officers; Village of Burnham, an Illinois municipal corporation; Gregory Giglio, a Burnham police officer; and Ben Valentine, Defendants-Appellees.

No. 1-90-1121.

Appellate Court of Illinois First District, First Division.

Nov. 23, 1992.

Rehearing Denied March 9, 1993.

Edward T. Stein and Clifford Zimmerman, and Nottage and Ward, Chicago (Eunice Ward, of counsel), for appellants Jane Doe.

Segal McCambridge Singer & Mahoney, Chicago (Gregory E. Rogus and Paul E. Wojcecki, of counsel), for appellee City of Calumet.

Baal & O'Connor, Chicago (Robert B. Baal and Keith R. Haug, of counsel), for appellees James Horka, Daniel Surufka and Kevin Beasley.

Ancel, Glink, Diamond & Cope, P.C., Chicago (David Lincoln Ader, Thomas G. DiCianni and Teri Engler Kliejunas, of counsel), for appellees Village of Burnham and Officer Giglio.

Justice CAMPBELL delivered the opinion of the court:

Plaintiffs, Jane Doe, individually, and on behalf of her minor children Betty and John Doe, appeal from the order of the circuit court of Cook County dismissing counts I through IV and count VIII of their first amended complaint brought against defendants Calumet City, and James Horka, Daniel Surufka, and Kevin Beasley, Calumet City police officers; the Village of Burnham and Gregory Giglio, a Burnham police officer, for injuries sustained by Jane Doe and her minor children during a home-invasion. Counts V through VII relate only to defendant Valentine and remain pending. On appeal, plaintiffs contend that: (1) the trial court erred in finding no "special relationship" existed between plaintiffs Betty and John Doe and defendants police officers; (2) the trial court erred in determining that plaintiffs did not adequately plead gender-based discrimination claims against defendants officer Horka and Calumet City; and (3) the trial court erred in determining that plaintiffs did not adequately plead a cause of action for intentional infliction of emotional distress. For the following reasons, we affirm the judgment of the trial court.

The record sets forth the following facts relevant to this appeal. Plaintiffs' complaint charged that on December 20, 1987, at approximately 4:30 a.m., defendant, Benjamin Valentine illegally entered the apartment of Jane, Betty and John Doe at 278 Yates Street, Calumet City, Illinois. Valentine entered the bedroom where all three Does were sleeping, and climbed on top of Jane Doe. He grabbed her clothing and began feeling her breasts and genital area, declaring he would rape her and threatening to kill her. Jane begged Valentine not to do anything with her children present. Valentine got off Jane and directed Betty and John to leave the room. Valentine followed the children out while threatening to kill them. Jane ran to the front door of the apartment. Valentine followed and caught Jane and they fell down the stairs. Valentine struck Jane and again threatened to kill her. Jane grabbed the stair railing and would not let go. Valentine turned around and reentered the apartment, locking the door behind him.

Jane Doe tried to reenter the apartment by kicking and pushing the door. As she was unable to awaken anyone in her building, Jane left the building screaming for help. At that time, she was clothed only in underwear and had no shoes or socks on her feet. Several neighbors heard Jane Doe's cries and called 911. Jane Doe ran to the building next door and pushed all the apartment buzzers.

In response to the 911 call, several municipalities dispatched police officers to the scene in Calumet City. Defendant Giglio, a Village of Burnham police officer, arrived shortly before defendant Horka of the Calumet police department. Horka arrived at approximately 4:39 a.m. and assumed a supervisory role, stating that he was in charge of the scene, maintaining control of the scene, the building and all persons in the area, giving instructions and orders to the other officers at the scene. Specifically, Horka talked to Jane Doe and ordered her to stay out of the building.

Horka asked Jane Doe if she had keys to her apartment and she replied that she did not. Horka also asked Jane: "Where is your husband?"; "Do you know the guy?"; "Why would you leave your children in the apartment if there was a strange man there?"; and "Why did you leave your apartment without the key?" Upon direction of one or more of the defendants, the landlord, who lived in South Holland, Illinois was telephoned and requested to bring keys to the building.

Plaintiffs alleged that when Horka spoke to other officers, he described Jane Doe as "an hysterical woman," and said "this girl is freaking out," and "she's not coherent anymore." The complaint alleges that Horka's tone of voice was rude, demeaning and accusatory.

Horka checked the front door and rang several apartment buzzers but received no response. Horka and Giglio walked around to the rear of the building, allegedly checking the windows and rear door.

Horka assigned Giglio to stay at the back door to secure the area. Jane Doe begged Horka to break down the door, but Horka responded that he would not break down the door because he did not want to be responsible for property damage. Horka prevented Jane Doe and her neighbors from their attempts to break down the door or otherwise enter the apartment.

Defendant Surufka arrived and discussed the situation with Horka, but did not attempt to enter the premises. Horka shined a spotlight into the apartment. Defendant Beasley then arrived and Horka stationed him and additional Chicago Police officers at different points around the building. Defendants Beasley and Surufka tapped on windows and rang doorbells to the building.

Horka spoke by radio with his supervisor Sergeant Targonski. During this conversation, Sergeant Targonski directed Horka to break down the apartment door. Horka did not do so.

Several paramedics arrived and consulted with Horka. One or more of the paramedics told Horka and other defendants that a "lock pick," locksmith and ladder were all available to gain entry into the apartment. Horka told the paramedics not to interfere and that Horka himself would make the decisions regarding the situation. No effort was made to utilize the "lock pick," locksmith or ladder.

At approximately 5 a.m., Investigator Miller of the Calumet City Police Department arrived, and spoke with Jane Doe. Miller went around to the rear of the building and entered the apartment through the rear door of the building and the back door of the apartment, which were both unlocked. When Investigator Miller entered the apartment, he found Valentine raping Betty Doe. During the time Valentine was in the apartment, Valentine had threatened and choked John Doe.

Count I of plaintiffs' amended complaint alleges that the defendants assumed a "special relationship" to Betty and John Doe when they became aware of the facts and circumstances surrounding Valentine's intrusion and sexual assault of Jane Doe. Plaintiffs allege that defendants had a duty to enter the apartment to prevent injury to Jane Doe's children, and that defendants willfully and wantonly breached this duty when they did not enter the apartment. Counts II and III, based on the same theory of recovery, were brought on behalf of Jane Doe for loss of society and for medical expenses under the Family Expense Act, respectively. Plaintiffs ultimately withdrew count II.

Count IV alleges that defendants Horka and Calumet City engaged in gender-based discrimination by defendant Horka's conduct toward Jane Doe during the incident and defendant Calumet City's ratification of such conduct.

In count VIII, all plaintiffs seek recovery for intentional infliction of emotional distress against defendants Horka and Calumet City on the grounds that defendants' conduct was extreme and outrageous and caused Jane severe emotional distress.

Defendants filed 2-615 motions to dismiss plaintiffs' complaint on the grounds that: (1) Section 4-102 of the Local Governmental Employees Tort Immunity Act provided immunity for the municipalities and the individual officers in the absence of a special duty owed to plaintiffs, and that plaintiffs failed to allege a special duty; (2) plaintiffs failed to state a cause of action against Horka and Calumet City for gender-based discrimination and (3) plaintiffs failed to state a cause of action against Horka and Calumet City for intentional infliction of emotional distress.

Following a hearing on the motions, the trial court granted defendants' motions to dismiss with prejudice. Plaintiffs' timely appeal followed.

Preliminarily, this is an appeal from a dismissal pursuant to section 2-615, which allows a court to dismiss actions based on the pleadings. A trial court should dismiss a cause of action on the pleadings only if it is clearly apparent that no set of acts can be proven which will entitle a plaintiff to recover. (Burdinie v. Village of Glendale Heights (1990), 139 Ill.2d 501, 504, 152 Ill.Dec. 121, 124, 565 N.E.2d 654, 657.) On appeal, all well-pleaded facts in the attacked portions of the complaint are taken as true and this court must decide whether the allegations, when viewed in the light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted. Burdinie, 139 Ill.2d at 505, 152 Ill.Dec. at 124, 565 N.E.2d at 657.

Plaintiffs initially allege that defendants assumed a "special relationship" to Betty and John Doe when they became aware through Jane Doe that Betty and John were locked in Jane Doe's apartment with Valentine, an intruder and potential rapist. The complaint alleges that defendants "willfully and...