Lacey v. Village of Palatine

• Decision Date: 04 February 2008
• Docket Number: No. 1-06-2842.,1-06-2842.
• Parties: Susan H. LACEY, as Special Adm'r and Special Representative of the Estate of Mary E. Lacey, Deceased; and Helena Kolbasky, as Special Adm'r and Special Representative of the Estate of Margaret Ballog, Deceased, Plaintiffs-Appellants, v. THE VILLAGE OF PALATINE, a Municipal Corporation, Palatine Police Department Detective B. Bertnik, No. 203; Palatine Police Department Detective Tully, Palatine Police Department Detective Kraeger; Village of Glenview, a Municipal Corporation; Glenview Police Department Sergeant Johnson; and Glenview Police Department Detective Michael Mazurkiewicz, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

882 N.E.2d 1187

Susan H. LACEY, as Special Adm'r and Special Representative of the Estate of Mary E. Lacey, Deceased; and Helena Kolbasky, as Special Adm'r and Special Representative of the Estate of Margaret Ballog, Deceased, Plaintiffs-Appellants, v. THE VILLAGE OF PALATINE, a Municipal Corporation, Palatine Police Department Detective B. Bertnik, No. 203; Palatine Police Department Detective Tully, Palatine Police Department Detective Kraeger; Village of Glenview, a Municipal Corporation; Glenview Police Department Sergeant Johnson; and Glenview Police Department Detective Michael Mazurkiewicz, Defendants-Appellees.

No. 1-06-2842.

Appellate Court of Illinois, First District, First Division.

February 4, 2008.

Rehearing Denied March 10, 2008.

Thomas A. Kelliher and Gary D. McCallister, of Gary D. McCallister & Associates, Ltd., of Chicago, for Appellants.

David E. Neumeister, Paul A. Rettberg and Brandon K. Lemley, of Querrey & Harrow, Ltd., of Chicago, for Appellees Village of Palatine and Detectives Bertnik, Tulley and Kraeger.

Richard Lee Stavis, Jeffrey M. Randall and Tracy E. Stevenson (Robbins, Salomon & Patt, Ltd., of Chicago, IL, of Counsel) of Chicago, for Appellees Village of Glenview, Sergeant Johnson and Detective Mazurkiewicz.

James L. DeAno of DeAno & Scarry, of Wheaton, for Amicus Curiae Chiefs of Police of the Intergovernmental Risk Management Agency and South Suburban Chiefs of Police.

Presiding Justice CAHILL delivered the opinion of the court:

Plaintiffs Susan H. Lacey and Helena Kolbasky appeal the trial court's dismissal of their second amended complaint under section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2006)). Plaintiffs sued the municipalities and police officers of Palatine and Glenview, defendants, after the murders in 2004 of Mary E. Lacey (Mary or Mary Lacey) and her mother Margaret Ballog (Ballog) by Steven Zirko (Zirko). Plaintiffs claimed defendants violated the Illinois Domestic Violence Act of 1986 (Domestic Violence Act or Act) (750 ILCS 60/101 et seq. (West 2006)) by failing to protect the victims after learning of Zirko's plan to have Mary murdered. Defendants' motion to dismiss relied on immunity under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/4-101 et seq. (West 2006)) and the Domestic Violence Act (750 ILCS 60/305 (West 2006)).

Plaintiffs' 76-count complaint made allegations against the City of Chicago and its detective, Darryl Daily; the Village of Palatine and its detectives, Brian Bertnik, Tully and Kraeger (first names not of record); and the Village of Glenview and its sergeant, Stefan Johnson and detective, Michael Mazurkiewcz.

The trial court granted defendants' motion to dismiss, concluding: (1) the officers were not executing the Domestic Violence Act when they investigated Zirko's murder-for-hire plot against Mary; and (2) Ballog was not a person protected under the Act. Plaintiffs appeal the dismissal of the counts in their complaint under the Domestic Violence Act. Plaintiffs do not appeal the dismissal of the City of Chicago and Detective Daily. Nor do plaintiffs appeal the dismissal of claims under the Wrongful Death Act (740 ILCS 180/2.1 (West 2006)) or the Illinois Survival Act (755 ILCS 5/27-6 (West 2006)).

The following facts are alleged in the complaint. Mary Lacey and Zirko began living together in 1995. A year later, Zirko began a pattern of abuse. Mary obtained emergency protective orders against Zirko in 2002 and 2003. A plenary protective order entered in December 2003 was to have remained in effect until December 2005. It prohibited Zirko from physically abusing, stalking, harassing, interfering with the personal liberty of or intimidating Mary. The order also named Susan Lacey, Raymond Lacey, Dylan Zirko and Zachary Zirko as protected persons. The order did not name Ballog as a protected person or contain a general provision for the protection of Mary's family.

In October 2004, Zirko's chiropractor, Chad Larsen, whose office was in Palatine, contacted the Chicago police department. Larsen reported Zirko had asked if Larsen knew anyone Zirko could hire to kill Mary or break her legs. Zirko later told Larsen that Zirko's father had agreed to kill Mary. Zirko asked Larsen to start charging Zirko's credit card for chiropractic services on a regular basis to establish a pattern to show Zirko was in Larsen's office at certain times.

On October 14, 2004, Chicago police detective Daily disclosed the information provided by Larsen to Palatine police detectives Bertnik and Tully. The next day, Bertnik and another Palatine detective, Kraeger, went to the Wilmette police department. They obtained police reports pertaining to Mary and Zirko from February 2002 to July 2003. Mary lived in Wilmette during that time. The complaint alleged that the reports contained a significant history of domestic battery and violations of protective orders by Zirko. All orders of protection were entered in the Law Enforcement Automated Data System (LEADS) as required by the Domestic Violence Act (750 ILCS 60/302 (West 2006)). Bertnik and Kraeger reported their investigation to Glenview police sergeant Johnson and detective Mazurkiewicz. Mary was living in Glenview at the time. Bertnik called Mary, told her she was in danger and asked her to come immediately to the Glenview police station. There, Bertnik and Kraeger told Mary that Zirko planned to murder her. Mary told the officers that Zirko was capable of hurting her and her family. The Palatine and Glenview officers then went to Mary's home to further discuss the investigation.

The complaint went on to allege: "At this time the Palatine and Glenview police officers reported they were not going to arrest Zirko but assured Mary and her family that [the officers] would protect [them]." The officers promised a 24-hour watch over Mary, including placing a police officer outside her home when she was at home and having an officer follow her when she left her home. Nothing in plaintiffs' pleadings or defendants' motion to dismiss states that the officers told Mary the protection would end at a certain time.

On October 21, 2004, Bertnik interviewed Zirko. Zirko refused to answer questions but his attorney said Zirko had no intention of harming or hiring anyone to harm Mary. Defendants did not arrest Zirko. Nothing in the record shows that defendants informed Mary when they closed the investigation.

The complaint alleged:

"43. Upon information and belief, the [d]efendant police officers failed to investigate this matter further after October 22, 2004, and failed to arrest Zirko.

44. From October 22, 2004 to December 13, 2004, Mary Lacey repeatedly called the Palatine and Glenview police departments requesting that they either arrest Zirko or provide the police supervision and protection * * * they previously promised."

The complaint, in separate sections for each officer, made essentially the same allegations against each one:

"172. At all relevant times herein, Mary Lacey was a member of the class intended to be protected by the Domestic Violence Act and entitled to special protection [under this Act] and had been so found by virtue of the Order of Protection she obtained on December 9, 2003.

173. [The officers] knew that Zirko was in violation of the Order of Protection, [they] had been advised and informed of all facts necessary to take immediate action against Zirko, and [they] had probable cause to arrest Zirko [under] the Domestic Violence Act upon receiving that information in October 2004.

174. At all relevant times herein, [the officers] had a duty under the statute to immediately use all reasonable means to prevent further abuse, harassment or exploitation, including but not limited to, arresting Zirko or providing police supervision and protection.

175. [The officers] breached this duty to Mary Lacey by one or more of the following willful and wanton acts and/or omissions:

a. Failing to arrest Zirko in light of his violation of an Order of Protection;

b. Failing to detain and/or arrest Zirko despite learning of his plan to murder Mary Lacey;

c. Failing to provide police supervision and protection after learning of the Zirko plan to murder Mary Lacey, after deciding not to arrest Zirko, and after promising 24-hour surveillance and protection of Mary Lacey;

d. Failing to further investigate the Zirko murder plan;

e. Knowingly rejecting Mary Lacey's pleas for help to respond to complaints that she feared for her life;

f. Failing to arrange for Mary Lacey's transportation to a safe place when informed that Mary Lacey was in need of protection; and

g. Failing to intervene after learning that Mary Lacey was in need of protection;

176. As a direct and proximate result of the * * * willful and wanton conduct of [the officers], Mary Lacey died on December 13, 2004."

Kolbasky made essentially the same allegations against the individual officers on Ballog's behalf. In addition, Kolbasky alleged:

"215. The Domestic Violence Act defines `persons protected by this Act' as including `any persons abused by a family or household member.'

216. At all relevant times herein, Ballog was a member of the class intended to be protected by the Domestic Violence Act and entitled to special protection [under] the Domestic Violence Act and had been so found by virtue of the Order of Protection Mary Lacey obtained on December 9, 2003, on behalf of her family."

The complaint alleged that the villages of Palatine and Glenview were liable under the Domestic Violence Act based on a theory of respondeat superior. Plaintiffs claimed the villages had a duty:

"through [their] agents and employees acting within the scope of their employment, to adhere to the mandates of the Domestic Violence Act, refrain from willful and wanton conduct in the enforcement and execution of the law, including refraining from a deliberate...