Harinek v. 161 North Clark Street Ltd. Partnership

• Court: Illinois Supreme Court
• Writing for the Court: HEIPLE
• Citation: Harinek v. 161 North Clark Street Ltd. Partnership, 692 N.E.2d 1177, 181 Ill.2d 335, 230 Ill.Dec. 11 (Ill. 1998)
• Decision Date: 20 February 1998
• Docket Number: No. 82155,82155
• Parties: , 230 Ill.Dec. 11 Gail P. HARINEK, Appellee, v. 161 NORTH CLARK STREET LTD. PARTNERSHIP et al. (The City of Chicago, Appellant).

Page 1177

692 N.E.2d 1177

181 Ill.2d 335, 230 Ill.Dec. 11

Gail P. HARINEK, Appellee, v. 161 NORTH CLARK STREET LTD. PARTNERSHIP et al. (The City of Chicago, Appellant).

No. 82155.

Supreme Court of Illinois.

Feb. 20, 1998.

Rehearing Denied March 30, 1998.

[230 Ill.Dec. 13] [181 Ill.2d 337] Benna Ruth Solomon, Chief Assistant Corporation Counsel, Chicago, for City of Chicago.

William J. Harte, William J. Harte, Ltd., Chicago, for Gail Harinek.

Kathryn James Anderlik, Judge & James, Park Ridge, for amicus curiae, Illinois Governmental Association.

Justice HEIPLE delivered the opinion of the court:

The City of Chicago appeals a judgment of the appellate court reversing the circuit court of Cook County's dismissal of count II of plaintiff Gail P. Harinek's second-amended complaint. In addition, plaintiff seeks cross-relief reversing the appellate court's affirmance of the trial court's dismissal of count III of the complaint. The appellate court concluded that count II was sufficient to allow plaintiff to maintain an action against the City for alleged negligence in planning and conducting a fire drill, but that count III failed adequately to allege that the City's conduct was willful and wanton. For the reasons that follow, we hold that the complaint is insufficient to support either of these claims.

BACKGROUND

Count I of the complaint alleged that defendant 161 North Clark Street Ltd. Partnership (the Partnership) owned and operated an office building in which plaintiff worked. Count I further alleged that the Partnership negligently allowed a heavy door with no window to be constructed near an elevator corridor and failed to provide adequate warnings as to the dangerous condition of the door. The count alleged that as result of this conduct, plaintiff was hit and injured by the door during a fire drill.

Count II alleged that the City of Chicago's fire marshal personally planned and conducted a fire drill in the building on April 28, 1993. Count II further alleged that, during the fire drill, the marshal negligently directed a large group of people, including plaintiff, to stand in the vicinity of the door, and that as a result, plaintiff was hit and injured by the door when someone opened it without warning. The count also alleged that the marshall was negligent in failing to inspect the door to ascertain whether it was safe, failing to warn those passing through and standing by the door of its danger, and failing to establish alternate routes not involving the door for use during the fire drill.

Count III repeated the factual allegations of count II, but asserted further that the fire marshal's conduct was willful and wanton because he was on notice that the area in which he directed the group of people to stand was unsuitable for that purpose.

Both the Partnership and the City moved to dismiss the complaint under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1994)). The circuit court denied the Partnership's motion to dismiss count I, but granted the City's motion to dismiss counts II and III based on the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/2-101 et seq. (West 1994)). The court also found that there was no just cause to delay enforcement or appeal of its order dismissing counts II and III (see 134 Ill.2d R. 304(a)).

The appellate court reversed the circuit court's dismissal of count II, ruling that the Act does not immunize the City from liability for the fire marshal's conduct as described in the complaint. 283 Ill.App.3d 491, 219 Ill.Dec. 191, 670 N.E.2d 869. The court first held that sections 5-102 and 5-103(b) of the Act (745 ILCS 10/5-102, 5-103(b) (West 1994)) are inapplicable because these sections pertain only to firefighters' performance in fighting a fire or to the City's failure to provide adequate personnel, equipment, or facilities for fire protection. ¹ 283 Ill.App.3d at 494-95, 219 Ill.Dec. 191, 670 N.E.2d 869. The court also held that section 2-201 of the Act (745 ILCS 10/2-201 (West 1994)) does not preclude liability because the fire marshal's conduct in "directing plaintiff to stand behind a door, though discretionary, is not a policy determination within the meaning of the Act." 283 Ill.App.3d at 496, 219 Ill.Dec. 191, 670 N.E.2d 869. The court affirmed, however, the trial court's dismissal of count III, holding that plaintiff's injury was not the result of willful and wanton conduct on the part of the fire marshal. 283 Ill.App.3d at 497, 219 Ill.Dec. 191, 670 N.E.2d 869. This court allowed the City's petition for leave to appeal (166 Ill.2d R. 315(a)).

ANALYSIS

Discretionary Acts

The City contends that permitting it to be held liable for the injuries plaintiff sustained during the fire drill would violate sections 2-109 and 2-201 of the Tort Immunity Act (745 ILCS 10/2-109, 2-201 (West 1994)). These sections provide as follows:

"A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable." 745 ILCS 10/2-109 (West 1994).

"Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused." 745 ILCS 10/2-201 (West 1994).

The Illinois Constitution of 1970 abolished sovereign immunity in Illinois, except as the General Assembly may provide by law. Ill. Const.1970, art. XIII, § 4. Consequently, the Tort Immunity Act governs whether and in what situations local governmental units are immune from civil liability. Epstein v. Chicago Board of Education, 178 Ill.2d 370, 375, 227 Ill.Dec. 560, 687 N.E.2d 1042 (1997). In construing the Act, our primary goal is to ascertain and give effect to the intention of the legislature. Barnett v. Zion Park District, 171 Ill.2d 378, 388, 216 Ill.Dec. 550, 665 N.E.2d 808 (1996). We will not depart from the plain language of the Act by reading into it exceptions, limitations, or conditions that conflict with the express legislative intent. Barnett, 171 Ill.2d at 389, 216 Ill.Dec. 550, 665 N.E.2d 808.

The City argues that sections 2-109 and 2-201 of the Act immunize a local public entity from liability if its act or omission which allegedly caused a plaintiff's injury constituted an exercise of discretion. The City asserts that the appellate court erred in requiring that the act or omission also had been a policy determination. The City contends that, prior to the instant case, no court had construed section 2-201 as requiring that a public entity's act or omission had been both an exercise of discretion and a policy determination. The City also argues that even if the statute is construed to require that the act or omission had been a policy determination, the fire marshal's conduct as described in the complaint satisfies this requirement.

Plaintiff responds that the clear language of the statute provides immunity only when the public entity's act or omission was both an exercise of discretion and a policy determination. Plaintiff argues that these two characteristics of a public entity's conduct are separate and distinct, and must both be satisfied independently for immunity to attach. Plaintiff contends further that the appellate court correctly determined that the fire marshal's conduct in this case did not constitute a policy determination, but asserts that the court erred in holding that the marshal's conduct was discretionary.

This court has not previously addressed the issue of whether section 2-201 requires that a public entity's act or omission be both an exercise of discretion and a policy determination. By its plain language, the statute immunizes a public employee who serves in "a position involving the determination of policy or the exercise of discretion" from liability for injuries allegedly caused by the employee's "act or omission in determining policy when acting in the exercise of such discretion." 745 ILCS 10/2-201 (West 1994). This language makes clear that the statute is concerned with both the type of position held by the employee and the type of action performed or omitted by the employee.

According to the statute, an employee may be granted immunity if he holds either a position involving the determination of policy or a position involving the exercise of discretion. The statute is equally clear, however, that immunity will not attach unless the plaintiff's injury results from an act performed or omitted by the employee in determining policy and in exercising discretion. The employee's position thus may be one which involves either determining policy or exercising discretion, but, as the appellate court correctly held, the act or omission must be both a determination of policy and an exercise of discretion.

In the instant case, plaintiff apparently concedes that the fire marshal's position involves either the determination of policy or the exercise of discretion. Plaintiff contends, however, that the appellate court correctly determined that the acts and omissions of the marshal described in the complaint were not determinations of policy. We disagree. The appellate court held that the fire marshal's act of "directing plaintiff to stand behind a door, though discretionary, is not a policy determination within the meaning of the Act." 283 Ill.App.3d at 496, 219 Ill.Dec. 191, 670 N.E.2d 869. In so holding, the appellate court mischaracterized the nature of the conduct described in the complaint.

The complaint alleges that the City of Chicago fire department "planned, controlled, operated, and implemented" a fire drill at plaintiff's place of employment on the date she was injured. The complaint further alleges that the fire marshal assembled plaintiff and her fellow employees in a corridor near the door which struck plaintiff, but...