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Marshall v. Ellison





Appeal from the Circuit Court of Coles County; the Hon. William J. Sunderman, Judge, presiding.


The plaintiff, William Marshall, sued for injuries that he suffered when a truck hit him while he was walking on Route 45 in the city of Mattoon. Count I, against Thomas and Ruby Ellison, owners of the Wagon Wheel Package & Tap, was brought under section 6-21 of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1983, ch. 43, par. 135). This count was later dismissed after a settlement. Count II, against the city of Mattoon, alleged its police officers were negligent in failing to protect the plaintiff when they knew or should have known that he was intoxicated. The trial court granted summary judgment in the city's favor, and the plaintiff appeals. At issue is whether the city owed the plaintiff any duty.

The plaintiff's accident occurred on December 5, 1980. The depositions and affidavits in the record reveal the following facts. Prior to the accident, the plaintiff had been drinking beer at the Wagon Wheel tavern. Bartenders there noticed him enter between 3:30 and 4 p.m. He departed at 7 or 7:30 p.m. According to the three bartenders, none of the plaintiff's actions indicated he was incapacitated or intoxicated. One of the bartenders did yell at the plaintiff when he threw a cue stick, but she assumed he was simply upset after losing a game of pool. Another bartender spoke with the plaintiff shortly before he left. That bartender stated the plaintiff had no difficulty walking, talking or handling money.

David Griffith, a Mattoon police officer, was on patrol alone on December 5. At 8:13 p.m., he and an officer in another car were dispatched on a call. The police log indicates the call was in reference to a drunk. Griffith responded that he was in the area at 8:19 p.m., and the dispatcher informed him that the individual was walking southbound on Route 45. Griffith and the other officer made several trips up and down Route 45 but were unable to locate the person.

At 8:37, Griffith and the other officer were dispatched to a motel in reference to a family fight. Griffith, traveling north on 45 in the left lane at a high rate of speed, observed a white male walking south in the right lane. The individual was three to six feet from the curb. Griffith stopped his car in the left lane, opened the door, and told the individual to get off the roadway. The man threw up his hands as an acknowledgement to the officer's directive and stepped off the road. Nothing indicated to Griffith that the individual was intoxicated. After the individual had taken a few steps onto the grass, Griffith proceeded to the motel. The entire encounter with the unidentified man lasted 10 to 15 seconds. Griffith testified that he would not recognize the individual he saw that night. Griffith arrived at the motel, which was about one-half to three-quarters of a mile away, at 8:40. At 8:44, two other officers were dispatched to the scene of the plaintiff's accident.

Due to his injuries, the plaintiff had difficulty remembering the accident and communicating his recollections. He did, however, remember an encounter with a Mattoon policeman who told him to "[p]ull it back." The plaintiff estimated he had consumed 20 beers and some whiskey that day. A doctor at the hospital measured the plaintiff's blood alcohol level at .28%.

In his complaint, the plaintiff alleged the city's police officers were negligent in: (1) attempting to aid the plaintiff and protect his safety and failing to continue with the attempt; (2) failing to remove the plaintiff from the highway; and (3) violating section 12(b) of the Alcoholism and Intoxication Treatment Act, now section 15(b) of the Alcoholism and Substance Abuse Act (Ill. Ann. Stat., ch. 111 1/2, par. 6315(b) (Smith-Hurd Supp. 1983)). The city maintains summary judgment was proper because it owed no duty to the plaintiff. Whether under the facts of a case such a relationship exists between two parties as to require a legal obligation be imposed upon one for the benefit of the other is a question of law for the court to decide. Summary judgment is proper when only a question of law is involved. Barnes v. Washington (1973), 56 Ill.2d 22, 26-27, 305 N.E.2d 535, 538.

• 1 The general rule is that a municipality and its employees are not liable for failure to supply general police or fire protection. Exceptions to this rule have been found only in cases where the municipality was under a special duty to a particular individual. (Huey v. Town of Cicero (1968), 41 Ill.2d 361, 363, 243 N.E.2d 214, 216.) Absent a special duty, therefore, a municipality will not be held liable for its failure to exercise a governmental function designed for the public health and safety. (Stigler v. City of Chicago (1971), 48 Ill.2d 20, 24, 268 N.E.2d 26, 29.) A general duty would put the police in the position of guaranteeing the personal safety of every member of the community. The general rule simply embodies the conclusion that a police department's negligence is not the legal cause of harm committed by another. Porter v. City of Urbana (1980), 88 Ill. App.3d 443, 445, 410 N.E.2d 610, 612.

• 2 The plaintiff urges us to adopt the rationale of the Massachusetts Supreme Court in Irwin v. Town of Ware (1984), 392 Mass. 745, 467 N.E.2d 1292. In Irwin, the plaintiffs alleged police officers had negligently failed to take into protective custody an automobile driver who was intoxicated and who subsequently caused an accident resulting in harm to the plaintiffs. The accident occurred approximately 10 minutes after police had stopped the intoxicated driver but allowed him to go. The town argued the police officers owed only a duty to the general public to enforce statutes with respect to intoxicated drivers. The court, however, concluded the public duty rule was no bar. The court decided a special relationship exists between a police officer who negligently fails to remove an intoxicated motorist from the highways and a member of the public who suffers an injury as a result of that failure.

In finding a special relationship, the Irwin court relied primarily on the foreseeability of the harm to a member of the public from an officer's failure to act.

"Where the risk created by the negligence of a municipal employee is of immediate and foreseeable physical injury to persons who cannot reasonably protect themselves from it, a duty of care reasonably should be found." 392 Mass. 745, 756, 467 N.E.2d 1292, 1300.

We decline to adopt the approach taken by the court in Irwin. First, we know that most courts have refused to find a cause of action in similar cases. (See Jackson v. Clements (1983), 146 Cal.App.3d 983, 194 Cal.Rptr. 553; Everton v. Willard (Fla. App. 1983), 426 So.2d 996; Crosby v. Town of Bethlehem (1982), 90 App. Div.2d 134, 457 N.Y.S.2d 618; Fusilier v. Russell (La. App. 1977), 345 So.2d 543; Ivicevic v. City of Glendale (1976), 26 Ariz. App. 460, 549 P.2d 240; Massengill v. Yuma County (1969), 104 Ariz. 518, 456 P.2d 376; but see Huhn v. Dixie Insurance Co. (Fla. App. 1984), 453 So.2d 70.) "The special duty required to maintain the action cannot be established by the mere fact that someone with whom the officer had prior contact subsequently injured the plaintiff." (Shore v. Town of Stonington (1982), 187 Conn. 147, 156, 444 A.2d 1379, 1383.) Nor should a cause of action arise simply because the officer had prior contact with the plaintiff himself.

In addition, our supreme court has warned against confusing foreseeability with the concept of duty and in using foreseeability to find a duty.

"Professor Leon Green discusses foreseeability in distinguishing between the judge's rule in determining the duty owed and a jury's rule in ...

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