Pierce v. Village of Divernon, Ill.

• Decision Date: 03 March 1994
• Docket Number: No. 92-3539,92-3539
• Citation: 17 F.3d 1074
• Parties: Tim PIERCE and Sheryl Pierce, Plaintiffs-Appellants, v. VILLAGE OF DIVERNON, ILLINOIS, a Village duly constituted under the laws of the State of Illinois, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1074

17 F.3d 1074

Tim PIERCE and Sheryl Pierce, Plaintiffs-Appellants, v. VILLAGE OF DIVERNON, ILLINOIS, a Village duly constituted under the laws of the State of Illinois, Defendant-Appellee.

No. 92-3539.

United States Court of Appeals Seventh Circuit.

Submitted Sept. 23, 1993.

Decided March 3, 1994.

G. Michael Taylor, Long, Morris, Myers, Rabin, Shuff & Taylor, Springfield, IL, for plaintiffs-appellants.

D. Bradley Blodgett, William Hardy, Hinshaw & Culbertson, Springfield, IL, for defendant-appellee.

Before BAUER, CUDAHY, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

This case was precipitated by a fire that damaged the home of plaintiffs Tim and Sheryl Pierce (the "Pierces"). Plaintiffs allege that the Village of Divernon, Illinois (the "Village") negligently failed to provide an adequate supply of water to fight the fire. They also maintain that the Village deprived them of their property without due process when it obtained an ex parte demolition order and demolished what remained of the fire-damaged structure. The district court dismissed the two counts alleging a failure to provide an adequate water supply and later granted summary judgment in favor of the Village on the due process claim. The Pierces appeal, and we affirm.

I. BACKGROUND

The fire occurred on February 26, 1989, extensively damaging the kitchen, bathroom, and dining room of the Pierce residence and destroying more than half of the roof. The remainder of the residence suffered severe water damage. The foundation of the home survived, however, and the Pierces were able to salvage some of their personal property. After the fire, two large piles of rubble were left on the premises; they contained nails and other objects dangerous to children. In addition, two large holes in the remaining structure permitted easy access to curious children. This caused concern to neighbors, who presented a petition to the Village Board requesting that it address the potential safety hazard. On June 14, 1989, the Village Board passed an ordinance declaring the Pierce property a public nuisance and directing the Pierces to remedy the problem within twenty days; otherwise, the Village would enter the property to abate the nuisance. Notice of the ordinance was mailed to plaintiffs on June 22, 1989, and they received it on June 26. By August 8, nothing had been done, and counsel for the Village notified Robert Mueller, who then was plaintiffs' counsel, that the property would be demolished in short order. On August 17, counsel told Mueller that the Village would proceed with the demolition. After each conversation, Mueller notified one or both plaintiffs of the Village's intentions. He even suggested at one point that the Pierces permit the Village to proceed so as to eliminate the possibility that someone might be injured on the property. On August 24, the Village appeared ex parte before the Circuit Court of Sangamon County and obtained an order permitting it to abate the nuisance. The Village then demolished the remains of the Pierce residence.

Plaintiffs filed a three-count complaint in the district court. Count I was brought under Illinois common law and alleged that the Village had interfered with the efforts of the Divernon Fire Protection District (the "FPD") by failing to insure an adequate water supply and adequate water pressure within its boundaries. The Pierces alleged that Village officials had been aware of the potential problem prior to the fire but had failed to remedy it. Moreover, the Pierces alleged that the blaze at their residence had raged for approximately fifty minutes before Village officials finally contacted the local Water Commission in an effort to supplement the water supply. The Village's inaction allegedly enhanced the damage, as plaintiffs contended that with adequate water and water pressure, the FPD would have been able to extinguish the fire after only minor damage. Count II relied on similar allegations to assert a Fourteenth Amendment due process violation. Count III addressed the subsequent demolition of the property, alleging that the Village had violated plaintiffs' due process rights by obtaining an ex parte order and demolishing their property.

The Village moved to dismiss counts I and II. The district court referred the motion to a magistrate-judge, who recommended that it be granted. The district court agreed, holding that as a local public entity, the Village was immune from tort liability pursuant to 745 ILCS Sec. 10/5-101 et seq. The court also dismissed the Fourteenth Amendment claim, finding that plaintiffs had no constitutional right to fire protection. ¹

The parties subsequently filed cross-motions for summary judgment on the due process claim. The district court granted the Village's motion, finding that the Village had provided plaintiffs adequate notice of its intention to demolish the property. Moreover, the court held that neither the Illinois statute governing the demolition of dangerous or unsafe buildings nor the Due Process Clause prohibited a municipality from obtaining an ex parte order where the property owner had adequate prior notice of the impending demolition.

II. DISCUSSION

A. Count I--Failure to Provide Adequate Water Supply

We review de novo the district court's decision to dismiss count I. Gould v. Artisoft, Inc., 1 F.3d 544, 548 (7th Cir.1993). We accept as true all well-pleaded factual allegations in the complaint and draw all reasonable inferences in the Pierces' favor. Id.; Midwest Grinding Co. v. Spitz, 976 F.2d 1016, 1019 (7th Cir.1992).

The first and indeed fatal obstacle to plaintiffs' state negligence claim is the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS Sec. 10/1-101 et seq. The provisions of that Act relating to fire protection and rescue services codify the common-law rule that a municipality owes the public no general duty of fire protection and that it therefore cannot be liable either for failing to provide or negligently providing fire protection services. Martin v. Lion Uniform Co., 180 Ill.App.3d 955, 129 Ill.Dec. 686, 687-88, 536 N.E.2d 736, 737-38 (1989); see also Aikens v. Morris, 145 Ill.2d 273, 164 Ill.Dec. 571, 574 n. 1, 583 N.E.2d 487, 490 n. 1 (1991). ² The Act was thus "intended to provide blanket immunity in the specific area of fire protection...." Jackson v. Chicago Firefighters Union, Local No. 2, 160 Ill.App.3d 975, 112 Ill.Dec. 393, 396, 513 N.E.2d 1002, 1005 (1987); see also McGuckin v. Chicago Union Station, 191 Ill.App.3d 982, 139 Ill.Dec. 76, 82, 548 N.E.2d 461, 467 (1989).

Section 10/5-101 provides immunity to a "local public entity" if it fails to establish a fire department or to provide any fire protection whatsoever. ³ Thus, if a local public entity chooses, for whatever reason, not to provide fire protection services, it cannot be held liable for that choice under Illinois law. Section 10/5-102, in turn, declares that once a local public entity undertakes to provide fire protection services, neither it "nor any of its employees is liable for an injury resulting from the failure to suppress or contain a fire or from the failure to provide or maintain sufficient personnel, equipment or other fire protection facilities." Plaintiffs' negligence claim would seem to fall within either or both of these provisions. An alleged failure to provide sufficient water or water pressure could be viewed either as a complete failure to provide fire protection or other emergency services under section 10/5-101 or as a failure to provide sufficient "facilities" to suppress or contain a fire under section 10/5-102. Either way, the Village is immune. The Pierces also allege that the Village negligently failed to request additional water from the Water Commission in the course of the fire, but that too arguably falls within the immunity conferred by section 10/5-102. Any doubt as to the scope of that section is eased, moreover, by section 10/5-103(b), which provides that "[n]either a local public entity nor a public employee acting in the scope of his employment, is liable for an injury caused by an act or omission of a public employee while engaged in fighting a fire." ⁴

Indeed, plaintiffs concede that these provisions shield the FPD from liability, but they contend that the Act does not confer immunity on the Village, whose negligence allegedly prevented the FPD from containing the fire. Plaintiffs essentially allege that the Village interfered with the FPD's attempts to control the blaze and that such conduct is not covered by the Act. The argument is clever, but it must fail. The Village is plainly a "local public entity" under 745 ILCS Sec. 10/1-206, meaning that it, like the FPD, is immune from liability for inadequate fire protection services. ⁵ The Pierces' "interference" theory is simply another way of saying that the Village either failed to provide fire protection under section 10/5-101 or failed to provide sufficient "facilities" to suppress or contain the fire under section 10/5-102. Indeed, the Illinois Appellate Court has found that a local water commission is immune from allegations that it breached a duty to maintain water pressure sufficient to extinguish a fire. Jones v. Village of Willow Springs, 240 Ill.App.3d 235, 181 Ill.Dec. 225, 227-28, 608 N.E.2d 298, 300-01 (1992). Because the Village is clearly protected by the Tort Immunity Act, the district court properly dismissed plaintiffs' negligence claim. ⁶

B. Count III--Demolition of Property

The Pierces next argue that their due process rights were violated when the Village obtained an ex parte demolition order and demolished their property. The district court granted the Village's motion for summary judgment, and we review that decision de novo, considering the evidence in the light most favorable to plaintiffs and granting them the benefit of all reasonable inferences. Saxton v. American Tel. and Tel. Co., 10 F.3d 526,...