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09/08/87 Gregory Schaffrath, Jr., v. the Village of Buffalo

September 8, 1987

GREGORY SCHAFFRATH, JR., ET AL., PLAINTIFFS-APPELLANTS

v.

THE VILLAGE OF BUFFALO GROVE ET AL., DEFENDANTS-APPELLEES

THE CIRCUIT COURT GRANTED DEFENDANTS' MOTION TO DISMISS THE COMPLAINT PURSUANT TO SECTION 2-615 OF THE ILLINOIS CODE OF CIVIL PROCEDURE. (ILL. RE

v.

STAT. 1985, CH. 110, PAR. 2-615.) THIS APPEAL FOLLOWED.



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

513 N.E.2d 1026, 160 Ill. App. 3d 999, 112 Ill. Dec. 417 1987.IL.1304

Appeal from the Circuit Court of Cook County; the Hon. David Cerda, Judge, presiding.

APPELLATE Judges:

JUSTICE BILANDIC delivered the opinion of the court. SCARIANO, P.J., and STAMOS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC, Plaintiffs appeal from an order dismissing their complaint for failure to state a cause of action.

On July 13, 1982, plaintiff Gregory Schaffrath, Jr., age 16, and plaintiff's decedent Patti Wildner, age 15, were passengers in an automobile owned and operated by Paul W. Kaufman, who was 22 years old. At about 12:15 a.m., defendant Officer Steven Haisley, of the Buffalo Grove police department, stopped Kaufman's vehicle in Buffalo Grove because of a loud muffler. The complaint alleges that when Officer Haisley requested Kaufman's driver's license, Kaufman produced four tickets from previous violations, one of which was for a loud muffler. No citation was issued.

Approximately 28 minutes after Officer Haisley stopped the Kaufman vehicle and it was out of the territorial jurisdiction of the village of Buffalo Grove, the car crossed to the left of the center line of Milwaukee Avenue in Niles, Illinois, striking a concrete abutment or pole. The accident occurred about eight miles from the location where Haisley stopped Kaufman. The accident resulted in the death of Patti Wildner and injury to Gregory Schaffrath, Jr. Kaufman was taken to Lutheran General Hospital, where it was determined that he had a blood-alcohol level of 0.091. The minimum statutory requirement for a determination of driving while under the influence of alcohol is 0.10. Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(a)(1).

Plaintiffs Gregory Schaffrath, Jr., his parents, the estate of Patti Wildner, and Patti Wildner's natural father have brought this action against the village of Buffalo Grove and Officer Steven Haisley, as an employee and/or agent of the village of Buffalo Grove, and Officer Haisley as an individual, for the injuries resulting from that accident.

The complaint alleges that the death of Wildner and injury to Schaffrath was a proximate result of Officer Haisley's careless, negligent and wrongful performance of his duties as a law enforcement officer of the village of Buffalo Grove. The complaint further alleges that as a result of the defendants' negligence and malfeasance, plaintiffs were deprived of liberty without due process of law and were further deprived of equal protection of the laws in violation of the fifth and fourteenth amendments of the United States Constitution and the Civil Rights Act (42 U.S.C. sec. 1983 (1982)).

Paul Kaufman, the driver of the vehicle, is not involved in this appeal, but is a named defendant in a separate action pending in the circuit court. Also, governmental immunity is not at issue. A municipality waives the statutory immunity provided in the Local Governmental and Governmental Employees Tort Immunity Act by securing insurance coverage against a particular form of liability. (Ill. Rev. Stat. 1985, ch. 85, par. 9-103(c).) The complaint alleges that the village of Buffalo Grove has insurance covering this type of liability, thus waiving the immunities provided in the Act for the purpose and scope of this appeal. I

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, 969, 414 N.E.2d 104.) In considering a motion to dismiss, the pleadings are to be liberally construed with the view of doing substantial Justice (Hayna v. Arby's, Inc. (1981), 99 Ill. App. 3d 700, 710, 425 N.E.2d 1174), and the court must accept as true all well-pleaded facts and reasonable inferences that can be drawn from those facts (Panorama of Homes, Inc. v. Catholic Foreign Mission Society, Inc. (1980), 84 Ill. App. 3d 142, 145, 404 N.E.2d 1104).

Applying these principles of liberal construction to plaintiffs' complaint, for the purposes of this opinion we will assume that Kaufman was intoxicated when he was stopped by Officer Haisley in the village of Buffalo Grove. Plaintiffs allege that the law imposed a duty on the officer to protect the minor passengers in a vehicle operated by an intoxicated driver. Officer Haisley did not arrest the driver.

Generally, law enforcement officials have no duty to protect individual citizens from criminal acts. Their responsibility is to the general public. (Santy v. Bresee (1984), 129 Ill. App. 3d 658, 473 N.E.2d 69, appeal denied (1985), 102 Ill. 2d 559.) The duty of the police to preserve the well-being of the community is owed to the public at large rather than to specific members of the community. (Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 243 N.E.2d 214.) This rule rests upon public policy considerations that a police department's negligence, oversights, blunders or omissions are not the proximate or legal cause of harms committed by others. A general duty would put the police in the position of guaranteeing the personal safety of every member of the community. (Porter v. City of Urbana (1980), 88 Ill. App. 3d 443, 445-46, 410 N.E.2d 610, appeal denied (1981), 82 Ill. 2d 588.) Plaintiffs acknowledge the existence of this general rule and concede that it precludes recovery.

However, the general rule does not apply and recovery is permitted when the police assume a special relationship to a person so as to elevate that person's status to something more than just being a member of ...


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