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03/29/88 Mark Anthony, v. the City of Chicago Et Al.

March 29, 1988

MARK ANTHONY, PLAINTIFF-APPELLANT

v.

THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

523 N.E.2d 22, 168 Ill. App. 3d 733, 119 Ill. Dec. 554 1988.IL.443

Appeal from the Circuit Court of Cook County; the Hon. Thomas R. Rakowski, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE HARTMAN delivered the opinion of the court. STAMOS and BILANDIC, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN

Plaintiff, Mark Anthony, claims error in the dismissal of his second amended complaint with prejudice for failure to state a cause of action against the City of Chicago (City), the Chicago Fire Department (Department) and an unknown city fireman. For reasons which follow, we reverse and remand.

Following previous dismissals of earlier complaints, on April 9, 1987, Anthony filed a three-count, second amended complaint pursuant to leave of court. Count I, in relevant part, asserted defendants' negligence in that they permitted Anthony to remain on the premises and "instructed, directed and encouraged" Anthony's aid in opening an elevator door from which smoke was escaping, in a burning building, without providing him with proper training, clothing, assistance or equipment and without warning him of the elevator's dangerous condition. In count II, Anthony alleged that because defendants "knew or should have known he was likely to be injured" by these same acts, defendants acted wantonly, wilfully and with a reckless disregard for his safety. Anthony attempted in count III to plead defendants' "special duty" to him and the breach thereof,

The City moved to dismiss, citing sections 5-102 and 5-103 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1985, ch. 85, par. 1-101 et seq.) and asserting that: (1) these sections provide fire fighters with blanket immunity from liability for injuries arising from fire fighting activities, subject only to exceptions enumerated in the Act; and (2) the exceptions stated in sections 5-102 and 5-103 of the Act, relating to the operation of a motor vehicle and fire services provided by "fire protection districts or corporations," are inapplicable to the case at bar. Ill. Rev. Stat. 1985, ch. 85, pars. 5-102, 5-103.

Following a hearing on August 12, 1987, the court declined to recognize a "special duty" exception capable of piercing the statutory immunity shielding fire fighters from liability and dismissed the second amended complaint with prejudice.

Anthony appeals, requesting a vacatur or, in the alternative, a reversal of the August 12, 1987, order.

To overcome a motion to dismiss, Anthony must assert facts supporting the allegations of the cause of action; in other words, he must allege facts which establish: a duty; a breach of that duty; and resulting injury. (Bell v. Village of Midlothian (1980), 90 Ill. App. 3d 967, 969, 414 N.E.2d 104.) Anthony contends the circuit court erred in dismissing his second amended complaint and failing to recognize the special duty exception to fire fighters' immunity under the Act.

A municipality or its employees may not be held liable for failure to supply general police or fire protection. (Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 363, 243 N.E.2d 214; Ill. Rev. Stat. 1985, ch. 85, pars. 5-102, 5-103.) Where a public employee, however, exercises care or custody over an individual, the individual's status is elevated beyond that of a member of the general public, the "special duty" exception is activated and the employee is liable for injury proximately caused by his negligence. Huey v. Town of Cicero, 41 Ill. 2d at 363; Fessler v. R. E. J. Inc. (1987), 161 Ill. App. 3d 290, 295, 514 N.E.2d 515; Fryman v. JMK/Skewer, Inc. (1985), 137 Ill. App. 3d 611, 616, 484 N.E.2d 909; Santy v. Bresee (1984), 129 Ill. App. 3d 658, 662, 473 N.E.2d 69; Gardner v. Village of Chicago Ridge (1966), 71 Ill. App. 2d 373, 378-79, 219 N.E.2d 147, later appeal (1970), 128 Ill. App. 2d 157, 262 N.E.2d 829, cert. denied (1971), 403 U.S. 919, 29 L. Ed. 2d 696, 91 S. Ct. 2230.

Defendants acknowledge the creation of the special duty exception by our supreme court, but argue that it has been applied to police only and urge that it not be extended to injuries caused by fire fighters. See Galuszynski v. City of Chicago (1985), 131 Ill. App. 3d 505, 475 N.E.2d 960; Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 3d 172, 446 N.E.2d 1183; Gardner v. Village of Chicago Ridge (1966), 71 Ill. App. 2d 373, 219 N.E.2d 147.

Illinois case law does not limit the exception to a particular class or type of public official; instead, the exception has been held relevant to a variety of public entities. (See Huey v. Town of Cicero, 41 Ill. 2d at 363; Fryman v. JMK/Skewer, Inc., 137 Ill. App. 3d at 616; Curtis v. County of Cook (1982), 109 Ill. App. 3d 400, 407, 440 N.E.2d 942, affirmed in part, reversed in part (1983), 98 Ill. 2d 158, 456 N.E.2d 116; Bell v. Village of Midlothian, 90 Ill. App. 3d at 970.) Moreover, this court recently recognized that the exception could be applied to fire fighters. (See Jackson v. Chicago Firefighters Union, Local No. 2 (1987), 160 Ill. App. 3d 975, 980-82, 513 N.E.2d 1002.) Cases relied upon by defendants, Adams v. Brooks (1984), 123 Ill. App. 3d 840, 463 N.E.2d 460, and Adams v. City of Peoria (1979), 77 Ill. App. 3d 683, 396 N.E.2d 572, lend little support to them. Although these decisions held that the Act provides fire fighters with blanket immunity from injuries arising from fire fighting activities, subject only to the two exceptions ...


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