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Nieder v. Gacy

OPINION FILED FEBRUARY 1, 1984.

DOLORES NIEDER, INDIV. AND AS SPECIAL ADM'R OF THE ESTATE OF JOHN MOWERY, DECEASED, PLAINTIFF-APPELLANT,

v.

JOHN WAYNE GACY ET AL., DEFENDANTS (DEPARTMENT OF POLICE OF THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Cook County; the Hon. Arthur A. Sullivan, Judge, presiding.

JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Plaintiff, Dolores Nieder, individually and as special administrator of the estate of her son, John Mowery, brought this wrongful death action against defendants John Wayne Gacy, the city of Chicago, Illinois Department of Corrections and Lemuel Sykes, Administrator, and the Iowa State Board of Parole. The trial court entered a default judgment against Gacy but dismissed the other defendants. Plaintiff appealed all the dismissals but did not object when this court dismissed her appeals against Sykes and the Illinois Department of Corrections for want of prosecution. Plaintiff now appeals the orders dismissing the city of Chicago and the Iowa State Board of Parole.

We first address plaintiff's contention that the trial court erred in dismissing her action against the city of Chicago.

Plaintiff's complaint charged that on September 29, 1977, she reported her son missing to the Chicago police department; that her son's body was found on Gacy's property on January 26, 1979; and that Gacy had assaulted and battered her son resulting in his death.

In count II plaintiff alleged that Chicago police arrested Gacy in February 1971 and numerous times thereafter knowing that he was a convicted felon and a parolee; that the police department owed a duty of care to plaintiff's decedent; and that it breached that duty by failing to protect the decedent from the actions of Gacy, by failing to investigate missing persons cases and by engaging in other wilful and wanton acts. Plaintiff asserted that these wilful and wanton acts proximately caused decedent's death.

The trial court granted the city of Chicago's motion to dismiss based upon sections 4-102 and 4-107 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1981, ch. 85, par. 1-101 et seq.). Section 4-102 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." (Ill. Rev. Stat. 1981, ch. 85, par. 4-102.)

Section 4-107 provides:

"Neither a local public entity nor a public employee is liable for an injury caused by the failure to make an arrest or by releasing a person in custody." Ill. Rev. Stat. 1981, ch. 85, par. 4-107.

Plaintiff contends, however, that these immunity provisions must be read in conjunction with section 2-202 of the act which she argues limits the extent of the immunity granted in the police immunity provisions. Section 2-202 provides:

"A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes wilful and wanton negligence." (Ill. Rev. Stat. 1981, ch. 85, par. 2-202.)

Pursuant to this section plaintiff maintains that the city of Chicago may be liable for the actions of its police department if such acts are wilful and wanton, and that since her complaint contains such allegations, the action should not have been dismissed against the city of Chicago.

• 1 Plaintiff concedes that the identical argument was specifically rejected in Jamison v. City of Chicago (1977), 48 Ill. App.3d 567, 363 N.E.2d 87, but contends that the holding in Jamison was erroneous. The Jamison court held that sections 4-102 and 4-107, the specific police immunity provisions, prevailed over section 2-202, the general immunity provisions relating to any public employee enforcing any law. We agree with the reasoning in Jamison and therefore find that sections 4-102 and 4-107 bar this action against the city of Chicago for the actions of its police officers. See also LeMenger v. Fitzgerald (1971), 1 Ill. App.3d 803, 274 N.E.2d 913.

In so holding, we reject plaintiff's contention that the decision in Huey v. Town of Cicero (1968), 41 Ill.2d 361, 243 N.E.2d 214, requires a reversal in the present case. In Huey, the court discussed generally the immunity of municipalities for the failure to provide police and fire protection and noted that exceptions to the immunity of municipalities are recognized only when the municipality assumes a special duty of care to a particular individual. The court found that no special duty was alleged in its case and therefore upheld the trial court's dismissal of the action. (Accord, Marvin v. Chicago Transit Authority (1983), 113 Ill. App.3d 172, 446 N.E.2d 1183.) Similarly here, plaintiff has not alleged that a special duty was owed to decedent individually. As in Huey, plaintiff did not allege that the decedent had requested police protection or that the police department knew that he was in some peculiar danger. Moreover, to hold that ...


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