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Fryman v. Jmk/skewer

OPINION FILED OCTOBER 16, 1985.

LAURIE FRYMAN, PLAINTIFF-APPELLANT,

v.

JMK/SKEWER, INC., ET AL., DEFENDANTS (THE COUNTY OF PEORIA, DEFENDANT-APPELLEE). — BARBARA E. CLAPP ET AL., PLAINTIFFS-APPELLANTS,

v.

JMK/SKEWER, INC., ET AL., DEFENDANTS (THE COUNTY OF PEORIA, DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Peoria County; the Hon. Richard E. Eagleton, Judge, presiding.

PRESIDING JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:

This is a consolidated interlocutory appeal from the dismissal of all counts directed against the county of Peoria (the county) in this personal injury action. We affirm.

The facts of this case as extracted from the representative Fryman complaint are relatively simple. It is alleged that in October 1983, the Peoria County health department became aware that the Skewer Inn restaurant was serving contaminated food. No action was taken to either close Skewer Inn down or warn patrons that they might be exposed to contamination. Later that month, the plaintiffs ate food containing clostridium botulinum, the bacteria associated with the food poisoning known as botulism.

The trial court dismissed all complaints directed against the county. The cases were consolidated and and certified for interlocutory appeal pursuant to Supreme Court Rule 304(a) (87 Ill.2d 304 (a)).

This appeals presents one main issue (and several related subissues): Does the county owe a duty to the individual plaintiffs so that a breach of that duty would give rise to a private action under the facts alleged in the several complaints? We hold that it does not.

• 1-3 It is axiomatic that a duty running from defendant to plaintiff must be shown before an action in tort will lie. (Lance v. Senior (1967), 36 Ill.2d 516, 224 N.E.2d 231). There is little doubt that the county through its health department had a statutory duty to inspect the Skewer Inn. But the greater question remains: To whom was this duty owed? It has consistently been held in Illinois that a governmental body, when exercising its authority pursuant to a governmental duty and for a governmental purpose, cannot be liable to a private plaintiff for the negligent exercise of that authority (Hannon v. Counihan (1977), 54 Ill. App.3d 509, 369 N.E.2d 917). To ascertain whether the improper exercise of authority is actionable, courts have distinguished those functions which are truly governmental in character from those which are not. The resolution of this distinction requires an analysis of the manner and setting in which the authority is exercised. The traditional analysis inquires whether the governmental action is "discretionary" or "ministerial." The latter is actionable, the former is not. The reason for this distinction is that discretionary activities require that the public servant use his judgment in deciding whether a certain course of conduct would best promote the public good. (Madden v. Kuehn (1978), 56 Ill. App.3d 997, 372 N.E.2d 1131.) This judgment involves the consideration of innumerable factors, not the least of which is that someone's ox will be gored. In order to carry out his duties in the public's interests, the public servant must be free from the threat of a lawsuit by those adversely affected by his discretionary decision. Improper exercise of a ministerial function is not so protected. (Merrill v. City of Wheaton (1942), 379 Ill. 504, 41 N.E.2d 508.) When important interests are damaged by the failure of a public servant to perform his routine and mechanical tasks properly, no public policy considerations are compromised by holding him responsible. Another recognized exception is for "corporate" functions carried out by a municipality. When a municipality engages in an enterprise which it is authorized to carry out, but is not essentially a governmental function, the municipality is liable when the negligence of its agents or employees causes harm to third persons. Gravander v. City of Chicago (1948), 399 Ill. 381, 78 N.E.2d 304.

Plaintiffs argue that the facts as alleged indicate that the county's agents failed to perform a ministerial function. It is urged that once it became apparent that contamination was present, all that was left to do was to either shut the restaurant down or cart off all the contaminated food on the premises. Alternatively, they quote the enabling statute and argue that the mandatory language therein indicates that inspections are a ministerial function of the health department. Ill. Rev. Stat. 1981, ch. 111 1/2, par. 20c13(6).

• 4 Both arguments miss the point. Once the health department discovered contamination, the nature and extent of its duty changed. However, the persons to whom this duty ran did not change. It was still engaged in the inherently governmental task of enforcing the county health ordinances. Hence, a failure to enforce the law to the damage of third persons occurred. Such a failure is not actionable. Adamczyk v. Zambelli (1960), 25 Ill. App.2d 121, 166 N.E.2d 93.

Adamczyk is but one in a long line of cases insulating public bodies from liability for negligent enforcement of the law. In Stigler v. City of Chicago (1971), 48 Ill.2d 20, 268 N.E.2d 26, an action was brought against the city for failure to enforce its housing code. The infant plaintiff had become ill from eating paint chips containing lead. The court held as follows:

"This ordinance was enacted to benefit the public health and safety of the people of the city. Its enforcement was a governmental function rather than a ministerial or proprietary act. The ordinance did not give rise to any special duty to the plaintiff or to any particular person different from the public at large. (citation) If the failure of the city to enforce this ordinance should render it liable for injuries sustained thereby, the tremendous exposure to liability would certainly dissuade the city from enacting ordinances designed for the protection and welfare of the general public, and thereby the general public would lose the benefit of salutary legislative enactments." (Stigler v. City of Chicago (1971), 48 Ill.2d 20, 24-25.)

Our supreme court has recently affirmed this basic approach in Ferentchak v. Village of Frankfort (1985), 105 Ill.2d 474, 475 N.E.2d 822. There, it refused to hold the municipality liable for negligent enforcement of its building code where plaintiff's property was damaged because village officials had failed to inspect and require an adequate foundation for their new house.

• 5 Plaintiff's arguments regarding the duties created by the statute and ordinance are similarly misplaced. The statute limits the agency's enforcement of the laws to its "professional and technical competence." (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 20c13(6).) This alone supports the characterization urged by the county. Moreover, a statute directing or mandating the enforcement of the law creates necessarily governmental duties. First, it requires that one know what the law is. Next, one must apply the law to the facts. Finally, it must be decided to what extent the public interest demands strict or flexible enforcement. These last two decisions are entirely discretionary. Thus, the negligent execution of this discretion cannot give rise to a private action.

• 6 This so-called "public duty" rule contains a large exception. It sometimes happens that, in the course of enforcing the law, public officials will be put in a position where specific individuals come into their care or custody. When the public official negligently exercises care or custody over the individual and the individual is injured as a proximate result of this negligence, the public official is liable. (Gardner v. Village of Chicago Ridge (1966), 71 Ill. App.2d 373, 219 N.E.2d 147.) This is known as the "special duty" exception. This exception follows logically from the general rule. Governmental acts are not generally actionable because the duty being carried out runs to the benefit of the public generally. If circumstances arise whereby it becomes the duty of a public official to act on behalf of a specific individual, his failure to carry out this duty in a nonnegligent manner should be actionable.

The four elements of this exception are recited in Bell v. Village of Midlothian (1980), 90 Ill. App.3d ...


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