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Marvin v. Chicago Transit Authority

OPINION FILED FEBRUARY 4, 1983.

CHARLES MARVIN ET AL., PLAINTIFFS-APPELLANTS,

v.

THE CHICAGO TRANSIT AUTHORITY, DEFENDANT. — (THE CITY OF CHICAGO, DEFENDANT-APPELLEE.)



Appeal from the Circuit Court of Cook County; the Hon. Raymond S. Sarnow, Judge, presiding.

JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 24, 1983.

This is an appeal from an order striking and dismissing counts V and VI of plaintiffs' first amended complaint against the defendant municipality. Charles Marvin and Rosemary Marvin sued the Chicago Transit Authority and the city of Chicago (hereinafter City) for personal injuries suffered by Charles Marvin (hereinafter plaintiff) when he was beaten by six youths at a subway platform in Chicago. At the time of the alleged beating, the subway station was patrolled by a Chicago police officer.

The issue presented for review is whether the circuit court erred in granting the City's motion to be dismissed as a party defendant pursuant to section 4-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1981, ch. 85, par. 4-102). On appeal, plaintiff contends that the City's liability is not limited by this act because: (1) the City assumed the duty of a common carrier by undertaking responsibility for policing the rapid transit system, and (2) the City owed a "special duty" to plaintiff under the specific circumstances of his injury. We affirm the order of the circuit court.

The alleged facts are as follows. On July 9, 1976, plaintiff, a Chicago Sun-Times copy cutter, left his job at 2:30 a.m. and walked alone to the subway station at Grand Avenue and State Street in the city of Chicago. At the station, he approached the cashier's window to pay his fare. Six youths had arrived and were arguing with the cashier about the validity of several transfers. These youths were loud and appeared to be intoxicated. The youths were blocking the entrance when plaintiff walked up and told the cashier that he wished to pay his fare. While plaintiff attempted to pay his fare, one youth struck him, swore at him and threatened him. Meanwhile, Harrison Mailey, a Chicago police officer, emerged from another booth and stood three to five feet away. Two of the youths jumped over the turnstile while plaintiff paid his fare. The officer told the youths to use their transfers, saying, "Just get the hell out and go on downstairs." Before leaving, one of the youths again struck and threatened plaintiff.

The six then went to the right and down the stairs that led to the southbound platform. Plaintiff asked Officer Mailey if he would accompany him to the northbound platform. The policeman declined, telling plaintiff that he was "going to be all right" on the northbound platform because the youths had gone to the southbound one. When plaintiff walked down two flights of stairs to the landing for the northbound trains, he encountered the six youths on the northbound platform, sitting on a bench 10 feet to his right. As a result, the six again attacked and beat him, whereby he sustained severe injuries. During the beating, Office Mailey was upstairs talking to the ticket agent.

Count V of the amended complaint alleges that the City assumed a "special relationship" to passengers when it directed officers of its "Mass. Transit Unit" to assume "almost full responsibility for policing the rapid transit system and protecting the riding public." It also alleges that the City breached its duty when it negligently "directed, permitted or caused" plaintiff to descend without protection into the subway, and when it improperly failed to accompany him onto the platform.

Count VI alleges that the City undertook to perform the duties of a common carrier with regard to providing passenger security, and that it breached such duties by its failure to provide plaintiff with adequate police protection, by its failure to warn him of the possible dangers, and by its failure to provide for his safety under the unique circumstances of the case.

The defendant City moved to strike the complaint and dismiss the case as to its liability on the basis of section 4-102 of the Local Governmental and Governmental Employees Tort Immunity Act. Plaintiff then filed a transcript of his own deposition testimony and a memorandum in opposition to the motion. The circuit court ordered that the City be dismissed as a party defendant and that the cause of action continue as to defendant Chicago Transit Authority.

OPINION

It is well settled in Illinois that generally a municipality is not liable for its failure to supply police protection. (Huey v. Town of Cicero (1968), 41 Ill.2d 361, 243 N.E.2d 214; Adamczyk v. Zambelli (1960), 25 Ill. App.2d 121, 166 N.E.2d 93.) This common law concept of sovereign immunity is expressed in section 4-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1981, ch. 85, par. 4-102) which provides: "Neither a local public entity nor a public employee is liable * * * for failure to provide adequate police protection or service, failure to prevent the commission of crimes and failure to apprehend criminals." It is also well settled that the duty of the police is to preserve the well-being of the community at large, and that such duty is generally not owed to specific individuals. (Huey; Curtis v. County of Cook (1982), 109 Ill. App.3d 400, 440 N.E.2d 942; Porter v. City of Urbana (1980), 88 Ill. App.3d 443, 410 N.E.2d 610.) This rule rests upon public policy considerations and "embodies the conclusion that a police department's negligence — its oversights, blunders, omissions — is not the proximate or legal cause of harms committed by others." Porter v. City of Urbana (1980), 88 Ill. App.3d 443, 445, 410 N.E.2d 610, 612.

To survive a motion to dismiss, it is not sufficient that a complaint merely allege a duty, but the pleader must allege facts from which the law will raise a duty, and facts must be alleged showing an omission of that duty and resulting injury. (Bell v. Village of Midlothian (1980), 90 Ill. App.3d 967, 414 N.E.2d 104.) Thus, we must look to the instant complaint to determine if plaintiff has alleged sufficient facts from which the law will raise a duty and which will therefore support the cause of action in view of the tort immunity statute.

In count V of plaintiff's first amended complaint, plaintiff alleges that the City assumed a "special relationship" to passengers of the rapid transit system by assuming "almost full" responsibility to police its facilities. It is further alleged that the City breached its duty to exercise ordinary care toward plaintiff when it negligently "directed, permitted or caused" plaintiff to descend into the subway without protection, and by its failure to accompany him when it knew or should have known of the danger of injury to him. On appeal, plaintiff contends that this count states a cause of action under the "special duty" exception to the general rule that municipalities are not liable for failure to exercise general police powers.

• 1, 2 The general requirements of the "special duty" exception, whereby the police owe a special duty to an individual, as contrasted to the public at large, are as follows: (1) the municipality must be uniquely aware of the particular danger or risk to which plaintiff is exposed; (2) there must be allegations of specific acts or omissions on the part of the municipality; (3) the specific acts or omissions must be either affirmative or wilful in nature; and (4) the injury must occur while the plaintiff is under the direct and immediate control of employees or agents of the municipality. (Curtis v. County of Cook (1982), 109 Ill. App.3d 400, 407, 440 N.E.2d 942, 947; Bell v. Village of Midlothian (1980), 90 Ill. App.3d 967, 970, 414 N.E.2d 104, 106.) Here, even assuming plaintiffs have satisfied the first three requirements, they have made no allegations which lead to the conclusion that the plaintiff's injuries occurred while he was under the direct and immediate control of a police officer of the City. The mere disjunctive allegation that the police officer "directed, permitted, or caused" plaintiff to descend to the platform in question does not meet this latter requirement. It is also noted, parenthetically, that any favorable inference from such pleading is betrayed further by plaintiff's own deposition testimony which clearly demonstrates the absence of such direct and immediate control of him by the police at the time of his unfortunate injury. Accordingly, we must uphold the dismissal of the allegations of count V which assert the City's negligence based upon the "special duty" ...


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