Moore v. Green

• Decision Date: 20 April 2006
• Docket Number: No. 100029.,100029.
• Citation: 219 Ill.2d 470,848 N.E.2d 1015
• Parties: Melissa MOORE, as Independent Adm'r of the Estate of Ronyale White, Deceased, Appellee, v. Christopher GREEN et al., Appellants.
• Court: Illinois Supreme Court

848 N.E.2d 1015

219 Ill.2d 470

Melissa MOORE, as Independent Adm'r of the Estate of Ronyale White, Deceased, Appellee, v. Christopher GREEN et al., Appellants.

No. 100029.

Supreme Court of Illinois.

April 20, 2006.

COPYRIGHT MATERIAL OMITTED

Mara S. Georges, Corporation Counsel, Chicago (Lawrence Rosenthal, Benna Ruth Solomon and Myriam Zreczny, of counsel), for appellants.

James D. Montgomery, Thomas C. Marszewski, of Cochran, Cherry, Givins, Smith & Montgomery, L.L.C., Michael W. Rathsack, Richard F. Mallen, Chicago, and Kathleen T. Zellner, Naperville, for appellee.

Roger Huebner, Springfield, for amicus curiae Illinois Municipal League.

Patricia J. Thompson, Paula M. Ketcham, of Schiff Hardin, L.L.P., Lorie A. Chaiten and David Pressman, Chicago, for amici curiae Illinois Coalition Against Domestic Violence et al.

Justice FITZGERALD delivered the judgment of the court:

The sole issue in this case is whether the absolute immunity provided by section 4-102 or 4-107 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/4-102, 4-107 (West 2002)) or the limited immunity provided by section 305 of the Illinois Domestic Violence Act of 1986 (750 ILCS 60/305 (West 2002)) applies to claims that a municipality and two of its police officers were willful and wanton in failing to assist a victim of domestic violence. Like the appellate court (355 Ill.App.3d 81, 290 Ill.Dec. 787, 822 N.E.2d 69), we conclude that the General Assembly intended section 305 to govern such claims. For the reasons that follow, we affirm.

BACKGROUND

On April 15, 2002, Ronyale White obtained an emergency order of protection against her husband, Louis Drexel. On May 3, 2002, White telephoned "911" at 11:40 p.m. to request police assistance because Drexel had entered her home. White told the operator that Drexel was violating the order of protection and that he owned a gun. The operator told White to watch for the police. An emergency dispatcher then contacted Chicago police officers Christopher Green and Donald Cornelius in their beat car. After the dispatcher advised the officers of White's situation and gave them her address and Drexel's description, one of the officers responded "10-4." That call concluded at 11:43 p.m. Witnesses saw the officers arrive and wait briefly in their car at White's home, then depart without assisting her. Five minutes later, Drexel shot and killed White.

Melissa Moore, independent executor of White's estate, filed a complaint in the circuit court of Cook County against Officer Green, Officer Cornelius, and the City of Chicago under the Wrongful Death Act (740 ILCS 180/1 (West 2002)) and the Survival Act (755 ILCS 5/27-6 (West 2002)).¹ Moore alleged that White was a protected person under the Domestic Violence Act, and that the officers had a duty under the statute to use all reasonable means to prevent further abuse or harassment by transporting White away from Drexel or arresting him. Moore charged that the officers' willful and wanton conduct in failing to investigate and assist White breached this duty and proximately caused her death.

The City filed a motion to dismiss Moore's complaint (see 735 ILCS 5/2-619(a)(9) (West 2002)), arguing that section 4-102 of the Tort Immunity Act, which provides absolute immunity for failing to provide police protection, to prevent or solve crimes, or to identify and apprehend criminals, and section 4-107 of that Act, which provides absolute immunity for failing to make an arrest, barred Moore's claims. Green and Cornelius joined this motion. Moore responded that section 305 of the Domestic Violence Act, which provides limited immunity for failing to render emergency assistance or enforce the statute and contains an exception for willful and wanton conduct, trumped sections 4-102 and 4-107. The trial court denied the defendants' motion to dismiss. The City filed a motion to reconsider and alternatively to allow an interlocutory appeal of a certified question under Supreme Court Rule 308(a) (155 Ill.2d R. 308(a)). Green and Cornelius again joined this motion. The trial court denied the motion to reconsider, but concluded that there was substantial ground for disagreement on the immunity question raised by the defendants and that an immediate appeal could terminate the case. The trial court submitted this issue to the appellate court:

"Does Section 4-102 or 4-107 of the Local Government and Governmental Employees Tort Immunity Act provide absolute immunity to a municipality and its police officers who are alleged to have willfully and wantonly failed to prevent a crime against a protected person by their actions or inactions (as specified in [Moore's amended complaint]) under Section[s] 201 and 305 of the Illinois Domestic Violence Act of 1986?"

The appellate court granted leave to appeal and answered the certified question in the negative. 355 Ill.App.3d 81, 290 Ill. Dec. 787, 822 N.E.2d 69. The appellate court reviewed the parties arguments, then reviewed this court's opinion in Calloway v. Kinkelaar, 168 Ill.2d 312, 213 Ill. Dec. 675, 659 N.E.2d 1322 (1995). 355 Ill.App.3d at 86-87, 290 Ill.Dec. 787, 822 N.E.2d 69. In enacting the Domestic Violence Act, the General Assembly sought "to encourage active intervention on the part of law enforcement officials in cases of intrafamily abuse." 355 Ill.App.3d at 91, 290 Ill.Dec. 787, 822 N.E.2d 69. The appellate court continued: "Based on the strongly worded purposes of the Act, coupled with the supreme court's construction of section 305 in Calloway, we believe that, in enacting the Domestic Violence Act, the legislature carved out a separate sphere of duties and liabilities for law enforcement officials." 355 Ill.App.3d at 92, 290 Ill.Dec. 787, 822 N.E.2d 69. The appellate court rejected the defendants' argument that the legislature did not intend the Domestic Violence Act to override the Tort Immunity Act because section 2-101 of the Tort Immunity Act exempts claims under certain enumerated statutes, and the Domestic Violence Act is not one of those statutes. 355 Ill.App.3d at 92, 290 Ill.Dec. 787, 822 N.E.2d 69, citing 745 ILCS 10/2-101 (West 2002). According to the appellate court, section 2-101 of the Tort Immunity Act does not provide an exhaustive list of exemptions, and the "the strongly worded language of the legislature in enacting the Domestic Violence Act" cannot be ignored. 355 Ill.App.3d at 92, 290 Ill.Dec. 787, 822 N.E.2d 69.

We allowed the defendants' petition for leave to appeal. 177 Ill.2d R. 315(a). We allowed the Illinois Municipal League to file an amicus curiae brief in support of the defendants and the Illinois Coalition Against Domestic Violence, the Chicago Metropolitan Women's Network, and various other domestic violence service organizations to file an amicus brief in support of Moore. 155 Ill.2d R. 345. On the legal issue presented in this appeal, our review is de novo. See Feltmeier v. Feltmeier, 207 Ill.2d 263, 266, 278 Ill.Dec. 228, 798 N.E.2d 75 (2003).

ANALYSIS

The Illinois Constitution of 1970 abolished sovereign immunity, except as the General Assembly may provide (see Ill. Const.1970, art. XIII, § 4), and the legislature exercised this prerogative by retaining the Local Governmental and Governmental Employees Tort Immunity Act. Van Meter v. Darien Park District, 207 Ill.2d 359, 368, 278 Ill.Dec. 555, 799 N.E.2d 273 (2003). The Tort Immunity Act protects local public entities and public employees from liability arising from the operation of government. 745 ILCS 10/1-101.1(a) (West 2002); Bubb v. Springfield School District 186, 167 Ill.2d 372, 378, 212 Ill.Dec. 542, 657 N.E.2d 887 (1995). The Act grants only immunities and defenses. 745 ILCS 10/1-101.1(a) (West 1998). That is, it does not create duties, but merely enumerates immunities which apply to certain government operations. Epstein v. Chicago Board of Education, 178 Ill.2d 370, 381, 227 Ill.Dec. 560, 687 N.E.2d 1042 (1997). Whether a municipality and its employees owed a duty of care to the plaintiff and whether they enjoyed immunity from the plaintiff's subsequent tort claims are separate inquiries. Barnett v. Zion Park District, 171 Ill.2d 378, 388, 216 Ill.Dec. 550, 665 N.E.2d 808 (1996).

Here, the parties agree that there was a duty to protect White, stemming from the Domestic Violence Act. See 750 ILCS 60/304 (West 2002); see also Calloway, 168 Ill.2d at 324, 213 Ill.Dec. 675, 659 N.E.2d 1322. In fact, by filing a motion to dismiss under section 2-619 of the Code of Civil Procedure, the defendants admitted the legal sufficiency of Moore's tort claims. See 735 ILCS 5/2-619(a)(9) (West 2002) (involuntary dismissal is proper where "the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim"); see also Van Meter, 207 Ill.2d at 367, 278 Ill.Dec. 555, 799 N.E.2d 273, citing Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 115, 189 Ill.Dec. 31, 619 N.E.2d 732 (1993). Once we have determined that a duty exists, we must then determine whether an immunity applies. Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill.2d 484, 490, 256 Ill.Dec. 848, 752 N.E.2d 1090 (2001).

Section 4-102 of the Tort Immunity Act provides:

"Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes, failure to detect or solve crimes, and failure to identify or apprehend criminals." 745 ILCS 10/4-102 (West 2002).

Section 4-107 provides that "[n]either a local public entity nor a public employee is liable for an injury caused by the failure to make an arrest * * *." 745 ILCS 10/4-107 (West 2002). Both sections offer absolute immunity (Barnes v. Chicago Housing Authority, 326 Ill.App.3d...