513 N.E.2d 1002, 160 Ill. App. 3d 975, 112 Ill. Dec. 393 1987.IL.1308
Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.
JUSTICE CAMPBELL delivered the opinion of the court. O'CONNOR and MANNING, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL
This appeal arises out of a five-count complaint filed by plaintiffs, owners and residents of the premises located at 646 and 648 North Ridgeway, Chicago (the Ridgeway premises), against defendants: the Chicago Firefighters Union, Local No. 2; Frank Muscare, president of the union; the city of Chicago; Jane Byrne, mayor of Chicago; Richard Brzeczek, superintendent of the Chicago police department; and certain Chicago police officers and fire fighters, seeking recovery for personal and property damage allegedly incurred as the result of defendant fire fighters' failure to tend to a fire which occurred at the Ridgeway premises on February 22, 1980. In their complaint, plaintiffs alleged: negligence (count I), willful and wanton misconduct (count II), wrongful death (count III), survival action (count IV), and public nuisance (count V), all of which were predicated on defendants' alleged breach of their duty to provide fire protection to plaintiffs. On defendants' motion, the trial court dismissed the city of Chicago, Jane Byrne, Richard Brzeczek, and the police officers from the action on the grounds that plaintiffs had failed to timely file both the statutory notice of claim and the complaint. *fn1 The remaining defendants then moved to strike and dismiss the complaint on the grounds that plaintiffs' allegations failed to show that defendants had any duty to provide fire protection to plaintiffs, and that sections 5-101 and 5-102 of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, par. 1-101 et seq.) affirmatively preclude imposition of such a duty. In addition, defendants argued that plaintiffs had failed to timely file both the statutory notice of claim and the complaint.
In granting defendants' motion to dismiss, the trial court focused solely on what it found to be the two-fold "threshold issue": (1) whether fire fighters have a common law duty to the plaintiffs that is negated by the General Assembly's passage of sections 5 -- 101 and 5 -- 102 of the Tort Immunity Act, except under circumstances where a "special duty" exists; or (2) whether sections 5 -- 101 and 5 -- 102 are simply legislative restatements of the absence of a common law duty between a fire fighter and a specific plaintiff. The trial court found that regardless of whether sections 5 -- 101 and 5 -- 102 are statutory restatements of the absence of a duty owed by fire fighters, or whether the sections act to negate a common law duty (in the absence of a showing of special duty) by fire fighters, dismissal of the cause of action was required on the grounds that "no common law duty exists under the facts alleged in the complaint." In addition, the trial court found that plaintiffs had failed to sufficiently allege the existence of a special duty between defendants and plaintiffs.
On appeal, plaintiffs contend that the trial court erred in dismissing their complaint because: (1) defendants were not municipal employees acting within the scope of their employment at the time of the fire at the Ridgeway premises and, thus, are not entitled to the protections of sections 5 -- 101 and 5 -- 102 of the Tort Immunity Act; and (2) in the alternative, the special duty exception had been properly alleged in the complaint. For the following reasons, we affirm the judgment of the circuit court.
In support of their contention that the court erred in dismissing their complaint, plaintiffs initially argue that defendants' participation in an illegal strike at the time of the fire at the Ridgeway premises triggered two exceptions to the Tort Immunity Act, thereby precluding application of the Act's protections to them. First, plaintiffs contend that defendant fire fighters were not acting within the scope of their employment while they were on strike. Therefore, because section 2 -- 204 of the Tort Immunity Act limits coverage of the Act to public employees who are acting within the scope of their employment, the fire fighters were not covered and are liable for their failure to provide fire protection. Second, plaintiffs argue that pursuant to section 2 -- 202 of the Act, which denies immunity for acts or omissions which constitute willful and wanton negligence, defendants are liable for the intentional violation of the court order which enjoined the strike and for their refusal to tend to the fire at the Ridgeway premises.
In our view, plaintiffs' scope of employment argument is fundamentally incongruous. Assuming arguendo that defendant fire fighters were not acting within the scope of their employment at the time they failed to tend to the fire at the Ridgeway premises, then they must have been acting as private citizens. In the latter capacity, defendants were under no duty to provide fire protection. In support of their position, plaintiffs rely on Bauer v. City of Chicago (1985), 137 Ill. App. 3d 228, 484 N.E.2d 422. However, we find that Bauer more accurately supports a finding of no duty. In Bauer, a suspended Chicago police officer was involved in a shooting. The city of Chicago refused to represent the officer on the ground that he had not been acting within the scope of his authority at the time of the shooting. The trial court granted summary judgment in the city's favor. On appeal, the Bauer court held that, "as a matter of law, . . . a suspended police officer cannot be acting within the scope of his employment, even if that officer is engaged in direct police action. . . .. A suspended officer has only the same rights and obligations in preventing and stopping the commission of crime as any private citizen." 137 Ill. App. 3d 228, 233, 484 N.E.2d 422.
Although we make no determination as to whether the employment status of a suspended police officer is analogous to that of a striking fire fighter, Bauer indicates that once a determination is made that a public employee was not acting within the scope of his employment, that public employee's duty to others is that of any other private citizen. Thus, in the present case, whether defendants were protected by the Tort Immunity Act or whether they acted outside of the scope of their employment as private citizens, we find that they had no legal duty to offer fire protection to plaintiffs.
We next address plaintiffs' contention that defendants' intentional violation of the court's injunction and their refusal to tend the fire at the Ridgeway premises constituted willful and wanton negligence which, pursuant to section 2 -- 202, is not protected by the Tort Immunity Act. We disagree and find Jamison v. City of Chicago (1977), 48 Ill. App. 3d 567, 363 N.E.2d 87, and Nieder v. Gacy (1984), 121 Ill. App. 3d 854, 460 N.E.2d 342, determinative of the issue. As a preliminary note, in reaching this Conclusion, we make no determination as to whether defendants' conduct did constitute willful and wanton negligence. Rather, we address only the issue as to whether section 2 -- 202, a general provision, provides an exception to the liability protections of article V of the Tort Immunity Act, which specifically addresses and is limited to fire protection.
In Jamison, James O'Malley shot and killed John Jamison. For three days prior to the shooting, O'Malley's son had warned the Chicago police that his father had been acting in a violent manner and requested that the police arrest him. The police refused to do so and the shooting occurred. Plaintiff, administratrix of Jamison's estate, filed a wrongful death action against the city of Chicago and the individual police officers, alleging, inter alia, that the individual officers were guilty of willful and wanton negligence in refusing to arrest O'Malley.
In response, defendants moved to dismiss the complaint pursuant to section 4 -- 102 of the Tort Immunity Act, which specifically provides immunity to police personnel for failure to prevent the commission of crimes. The motion was denied and the question was certified for appeal. The appellate court declined to address the Tort Immunity Act issue and reversed the trial court on the grounds that plaintiff's complaint had failed to sufficiently allege willful and wanton negligence. Plaintiff amended the complaint and defendants again moved to strike and dismiss the complaint on the basis of the Tort Immunity Act. Once again, the motion was denied and the question was certified for appeal.
On appeal, the Jamison court addressed the issue of whether section 2 -- 202, a general provision of the Tort Immunity Act, overrides the more specific immunity sections of article IV of the Act, entitled "Police ...