APPEAL from the Circuit Court of Cook County; the Hon.
NICHOLAS J. BUA, Judge, presiding.
MR. PRESIDING JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 29, 1975.
The plaintiff-respondent-appellee (hereinafter plaintiff) brought suit against the City of Chicago and the individual defendants, police officers of the City of Chicago, for the wrongful death of her intestate, John Jamison. The plaintiff's complaint was filed on December 11, 1972, and on January 22, 1973, the defendants-petitioners-appellants (hereinafter defendants) made a motion to strike and dismiss the complaint. The basis for the motion was section 4-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85, par. 4-102). On March 6, 1973, after hearing counsels' arguments, the trial court denied the motion to strike and dismiss the complaint. The defendants on April 3, 1973, presented a motion to the trial court and requested the court to certify the question of the denial of the defendants' motion to strike and dismiss the complaint pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1971, ch. 110A, par. 308). The trial court granted the motion, finding that its denial of the defendants' motion to strike and dismiss the complaint involved a question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation. The defendants filed a petition for leave to appeal and we granted the petition on May 30, 1973.
The plaintiff's complaint alleged that on or about January 1, 1972, plaintiff's decedent, John Jamison, was at Dunn's Pizzeria and that he was shot dead without any cause or provocation by one James O'Malley. The complaint further alleged that on December 29, 30, and 31, 1971, defendants McCurrie, Weaver, Katalinich and "Unknown Persons" were guilty of willful and wanton negligence because on numerous occasions during this period the individual defendants were repeatedly requested to arrest James O'Malley by one or more of O'Malley's sons and other persons who complained of the highly irrational and criminal behavior of O'Malley during this period, including assault and battery and assault with a deadly weapon upon one or more of O'Malley's sons, and notwithstanding these requests defendants "in willful and wanton disregard for their duties as law enforcement officers of the City of Chicago, and in willful and wanton disregard of their duty and obligation as such law enforcement officers to protect the safety and well-being of plaintiff's decedent, as a member of the public, did during said period willfully and wantonly decline and refuse to arrest said James O'Malley, without any lawful justification whatsoever for their refusal to do so." An amendment to the complaint also alleged that prior to and at the time of the refusals to act, one or more of the individual defendants knew from prior experience of "the dangerous, violent, and law violating propensities of said James O'Malley." It was alleged that the plaintiff's intestate's death was the direct and proximate result of the willful and wanton negligence of the defendants. As previously stated, the defendants' motion to strike and dismiss the plaintiff's complaint was based on section 4-102 of the Local Governmental and Governmental Employees Tort Immunity Act. Defendants maintain that by virtue of this section of the Act neither public entities nor policemen are liable for failure to supply police protection. Plaintiff takes a contrary position and bases her contention on section 2-202 of the Illinois Tort Immunity Act. (Ill. Rev. Stat. 1971, ch. 85, par. 2-202.) However, due to the manner in which we view this case, it is unnecessary to deal with this issue.
The allegations and accusations within the plaintiff's complaint are stated in a broad and general manner. The complaint does not allege any specific acts or omissions by the defendants. During the course of oral argument, plaintiff's counsel made several factual allegations that were not contained within the complaint. Counsel stated that Daniel O'Malley, one of James O'Malley's sons, had pleaded several times during the 3-day period in question with the individual defendants who were policemen assigned to the 8th District to arrest his father because he was brandishing a gun, threatening blacks, and had pushed his crippled son out of a wheelchair. Plaintiff's attorney maintained that this constituted an assertion of the commission of an offense by a citizen and that the police had the power to arrest James O'Malley without a warrant. While this may be true, none of these factual allegations are found in the complaint. In addition, counsel asserted that James O'Malley had been committed to a State institution prior to murdering plaintiff's intestate and that the police knew this and had in fact dealt with James O'Malley themselves. Counsel was questioned on this point and admitted that this was not spelled out in the complaint.
• 1, 2 As was stated in Jarvis v. Herrin City Park District, 6 Ill. App.3d 516, 524, 285 N.E.2d 564, 570 (1972): "It is well settled in Illinois that, in order to withstand a motion to dismiss, a complaint must contain sufficient averments of fact to state a cause of action. (Stenwall v. Bergstrom (1947), 398 Ill. 377, 75 N.E.2d 864.)" We are of the opinion that on the basis of the few facts alleged in the plaintiff's complaint there is not a sufficient allegation of willful and wanton negligence. This court is aware of the fact that pleadings should be liberally construed (Ill. Rev. Stat. 1971, ch. 110, par. 33). However, substantial averments of fact remain essential to stating a cause of action. The trial court, therefore, erred in not granting the defendants' motion to strike and dismiss the plaintiff's complaint.
For the reasons herein stated, the order of the Circuit Court of Cook County is reversed.
Mr. JUSTICE BURMAN, specially concurring:
I agree with the judgment of my brethren, but for a different reason. I find merit in the defendants' contention that the trial court erred in failing to grant their motion to strike and dismiss the cause of action because the Illinois Local Governmental and Governmental Employees Tort Immunity Act specifically exempts defendants under the facts specified in the complaint.
Section 4-102 of that Act (Ill. Rev. Stat. 1971, ch. 85, par. 4-102), under "Article IV Police and Correctional Activities," 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 and failure to apprehend criminals." (Emphasis added.)
In addition, section 4-107 of the Act (Ill. Rev. Stat. 1971, ch. 85, par. 4-107), also under article ...