Lacey v. Village of Palatine

• Decision Date: 20 February 2009
• Docket Number: No. 106359.,No. 106353.,106353.,106359.
• Citation: 232 Ill.2d 349,904 N.E.2d 18
• Parties: Susan H. LACEY, Special Adm'r of the Estate of Mary E. Lacey, Deceased, Appellee, v. The VILLAGE OF PALATINE et al., Appellants.
• Court: Illinois Supreme Court

904 N.E.2d 18

232 Ill.2d 349

Susan H. LACEY, Special Adm'r of the Estate of Mary E. Lacey, Deceased, Appellee, v. The VILLAGE OF PALATINE et al., Appellants.

No. 106353.

No. 106359.

Supreme Court of Illinois.

February 20, 2009.

Jennifer Medenwald, Paul A. Rettberg, and Brandon K. Lemley, of Querrey & Harrow, Ltd., Chicago, for appellants Village of Palatine et al.

Richard Lee Stavins, Eric G. Patt and Tracy E. Stevenson, Chicago (Robbins, Salomon & Patt, Ltd., of counsel), for appellants Village of Glenview et al.

Thomas A. Kelliher, Gary D. McCallister, Chicago, for appellee.

James L. DeAno, of DeAno & Scarry, LLC, Wheaton, for amici curiae Chiefs of Police of the Intergovernmental Risk Management

Agency and South Suburban Chiefs of Police.

OPINION

Justice GARMAN delivered the judgment of the court, with opinion:

Plaintiff, the special administrator of the estate of decedent Mary Lacey, brought this action in the circuit court of Cook County against the Village of Glenview, the Village of Palatine, and individual police officers employed by the villages (defendants). Plaintiff's complaint alleges that defendants willfully and wantonly breached duties owed to Lacey under the Illinois Domestic Violence Act of 1986(Act) (750 ILCS 60/101 et seq. (West 2002)). Defendants moved to dismiss plaintiff's complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2006)) on the basis that they were not enforcing the Act and, therefore, were not subject to the limitations on immunity provided in section 305 of that statute (750 ILCS 60/305 (West 2002)). The circuit court of Cook County granted defendants' motions and dismissed the case, holding that defendants were not enforcing the Act and were, therefore, immune from liability under sections 4-102 and 4-107 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/4-102, 4-107 (West 2002)).

Plaintiff appealed and the appellate court reversed, finding that questions of material fact precluded dismissal of the case. 379 Ill.App.3d 62, 318 Ill.Dec. 64, 882 N.E.2d 1187. Defendants sought leave to appeal to this court pursuant to Supreme Court Rule 315 (210 Ill.2d R. 315). We granted defendants' petitions and consolidated the appeals. We also permitted the Chiefs of Police of the Intergovernmental Risk Management Agency and the South Suburban Chiefs of Police to file a brief as amici curiae. 210 Ill.2d R. 345. We now reverse the decision of the appellate court and affirm the circuit court's dismissal of plaintiff's complaint.

BACKGROUND

The decedent, Mary Lacey, began living with Steven Zirko in June 1995. Plaintiff alleges that in December of the following year, Zirko began physically and emotionally abusing Lacey. Zirko was allegedly arrested on several occasions both for domestic battery and for violating various orders of protection that Lacey received between December 2002 and December 2003.

On December 9, 2003, Lacey received a two-year plenary order of protection (order) against Zirko. This order was to be in effect until December 9, 2005. It was, therefore, in full force and effect during all times relevant to this opinion. The order prohibited Zirko from physically abusing, harassing, or interfering with Lacey's personal liberty. The order also required Zirko to stay away from Lacey. The order was, pursuant to statute, entered into the Law Enforcement Automated Data System. See 750 ILCS 60/302(a) (West 2002). As a result, defendant police officers, their respective departments, the villages, and other unnamed individuals had knowledge of Lacey's order.

In October 2004, Chad Larsen, Zirko's chiropractor of five years, contacted Detective Daily of the Chicago police department.¹ Larsen, whose practice was located in Palatine, contacted the Chicago police because he had heard Zirko, a Chicago resident, make a number of threatening statements toward Lacey. According to plaintiff, Larsen stated that in the several months prior, Zirko had commented to him that Lacey needed to have her legs broken and had asked Larsen if he knew anyone that Zirko could hire to break them. Shortly before Larsen contacted Daily, Zirko told Larsen that he no longer needed someone to break Lacey's legs, he needed someone to kill her. Zirko then asked Larsen if he knew anyone he could hire to kill Lacey. In early October 2004, Zirko allegedly told Larsen that Zirko's father had agreed to kill Lacey. Zirko then requested that Larsen charge Zirko's credit card for chiropractic services on a regular basis to "set up a pattern showing that Zirko was at the chiropractor in Palatine on certain days and times."

Based on Larsen's statements, Daily began an investigation of Zirko's alleged solicitation of someone to murder Lacey. On October 14, 2004, Daily contacted the Palatine police department, presumably because Larsen's practice was located in Palatine. Daily discussed the investigation with Detectives Bertnik and Tulley of the Palatine police department.

On October 15, 2004, Palatine police Detectives Bertnik and Kraeger went to the Wilmette police department. Lacey had lived in Wilmette from February 2002 to July 2003, when she moved to Glenview. While in Wilmette, Bertnik and Kraeger learned of Zirko's "significant history of domestic battery and violations of orders of protection." Bertnik and Kraeger were also supplied with all the police reports involving Lacey and Zirko during this period.

Following their trip to Wilmette, Bertnik and Kraeger reported their investigation to Sergeant Johnson and Detective Mazurkiewicz of the Glenview police department.

That same day, Bertnik telephoned Lacey and told her she was in "immediate danger" and requested that she "come to the Glenview Police Department Station immediately." Lacey complied with this request and went to the Glenview police department.

At the Glenview police department, Lacey met with Bertnik and Kraeger, who informed Lacey of Zirko's alleged plot to murder her. Lacey informed Bertnik and Kraeger that Zirko was capable of hurting her and her family. During this discussion, Bertnik and Kraeger informed Lacey that Zirko would not be arrested at that time.

Following the meeting at the Glenview police department, Palatine and Glenview officers, including Mazurkiewicz, went to Lacey's Glenview home to further discuss Zirko's alleged murder plot. Plaintiff alleges that at this meeting, both Palatine and Glenview officers reiterated that Zirko would not be arrested, but assured Lacey that they would protect her by placing a 24-hour watch over her. Plaintiff alleges that this 24-hour watch was to include an officer posted outside Lacey's home when she was there, and an officer to follow Lacey when she left her house.²

On October 21, 2004, Bertnik interviewed Zirko. Zirko attended the interview with his attorney. Zirko's attorney told Bertnik that Zirko would not answer any questions and would not make any statements. However, the attorney did tell Bertnik that Zirko had no intention of harming Lacey or hiring anyone to harm Lacey.

Plaintiff alleges that on or about October 22, 2004, defendants closed their investigation into Zirko's murder-for-hire plot. Zirko was never detained or arrested.

Plaintiff alleges that from October 22, 2004, through December 13, 2004, Lacey called the Palatine and Glenview police departments multiple times requesting that defendants either arrest Zirko or provide the supervision and protection they promised. It is undisputed that defendants did not provide Lacey with police protection between October 22 and December 13, 2004.

Plaintiff alleges that on December 13, 2004, Zirko brutally attacked and murdered Lacey and her mother, Margaret Ballog,³ while the two were present in Lacey's Glenview home.

Thereafter, the special administrator of Lacey's estate brought suit. Plaintiff's second amended complaint contained 76 separate counts against the various defendants.⁴ However, this appeal is concerned only with those claims that were brought on behalf of Lacey's estate under the Act. Further, the defendants who are parties to the present appeal are the Village of Palatine and its employees Detective Bertnik, Detective Tulley, and Officer Kraeger (Palatine defendants) and the Village of Glenview and its employees Sergeant Johnson and Detective Mazurkiewicz (Glenview defendants).

The claims relevant to this appeal are plaintiff's allegations that Palatine defendants and Glenview defendants (collectively referred to as defendants) willfully and wantonly breached a duty owed to Lacey under the Act. Plaintiff filed two relevant counts against each of the police officer defendants. The first count alleged wrongful death under the Act. The second count was a survival claim under the Act. The factual assertions and alleged breaches are identical in both the wrongful-death and the survival counts. The counts are identical as to all the police officer defendants.

Plaintiff specifically alleges that Lacey was a member of the class of persons protected by the Act and had been "so found by virtue of the Order of Protection she obtained on December 9, 2003." Plaintiff further alleges that because Lacey was protected under the Act, she was owed a duty under the Act and that defendants willfully and wantonly breached that duty. Plaintiff alleges that Bertnik, Tulley, and Kraeger of Palatine and Johnson and Mazurkiewicz of Glenview were aware of the order of protection, knew that Zirko was in violation of that order, had been informed of all facts necessary to take immediate action against Zirko, and had probable cause to arrest Zirko based on the information they received in October 2004. Plaintiff argues that defendants had a "duty under the [Act] to immediately use all reasonable means to prevent further abuse, harassment or exploitation, including but not limited to arresting Zirko or providing police supervision...