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09/23/88 Maria Soto Et Al., v. Maria Soto Et Al.

September 23, 1988

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION VALIANT R.W. POLINY, PLAINTIFF-APPELLANT

v.

MARIA SOTO ET AL., DEFENDANTS-APPELLEES



533 N.E.2d 15, 178 Ill. App. 3d 203, 127 Ill. Dec. 397 1988.IL.1431

Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. LORENZ, P.J., and PINCHAM, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Plaintiff Valiant R.W. Poliny appeals from an order of the circuit court of Cook County dismissing one of three counts of his complaint for failure to state a cause of action against defendants City of Chicago and two of its police officers, Maria Soto and James Stein, charging them with negligence in leaving him at an arrest scene where he was subsequently attacked by a friend of the arrestee. On appeal, plaintiff argues that the judicially created "special duty" exception to the tort immunity of police officers is "improperly formulated" and against public policy and section 9-103 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, par. 9-103) is unconstitutional. For the reasons set forth below, we affirm.

Plaintiff's complaint alleges that on July 20, 1985, he and Donald Nagolski were walking on Sheffield Avenue near Clark Street in Chicago when they were attacked and beaten by Rolando Calderon. Nagolski was assisted by witnesses at the scene and taken to a hospital. Plaintiff followed Calderon up Clark Street for several blocks and subsequently flagged a police car manned by defendants Soto and Stein. Plaintiff led the officers to where Calderon was standing with some friends, one of whom was Jose Rosario. After the officers arrested Calderon, and in their presence, Rosario and another unnamed person verbally abused and threatened plaintiff for having caused Calderon's arrest. Plaintiff then requested that the officers "assist him back to the stationhouse [located approximately two blocks away] to file his complaint and that they not leave him alone with Rosario and the other individual." The officers discussed, but subsequently refused, plaintiff's request and left the scene. Shortly thereafter, plaintiff was attacked and battered by Rosario.

In July 1986, plaintiff and Nagolski filed a three-count complaint against the City of Chicago, Officers Soto and Stein, Calderon, and Rosario. Count I consists of a claim by both plaintiff and Nagolski against Calderon, count II is a claim by plaintiff against Rosario, and count III is a claim by plaintiff against the City and Officers Soto and Stein. The City subsequently filed a motion to dismiss count III and, on April 27, 1987, the court granted the motion based on its finding that plaintiff failed to state a cause of action. This appeal followed.

To sufficiently state a cause of action based on negligence, the plaintiff must establish the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from that breach. (Eddings v. Dundee Township Highway Commissioner (1985), 135 Ill. App. 3d 190, 478 N.E.2d 888.) The existence of a duty is a question of law properly addressed by the court. (Horrell v. City of Chicago (1986), 145 Ill. App. 3d 428, 495 N.E.2d 1259.) Absent a legal duty, there can be no recovery in negligence as a matter of law. Keller v. Mols (1984), 129 Ill. App. 3d 208, 472 N.E.2d 161.

Pursuant to section 4-102 of the Tort Immunity Act, "[neither] a local public entity nor a public employee is liable . . . for failure to provide adequate police protection or service, failure to prevent the commission of crimes and failure to apprehend criminals." (Ill. Rev. Stat. 1985, ch. 85, par. 4-102.) "The duty of police to preserve a community's well-being and to prevent the commission of crimes is owed to the public at large, not to specific individuals." (Fessler v. R.E.J. Inc. (1987), 161 Ill. App. 3d 290, 295, 514 N.E.2d 515, appeal denied (1988), 118 Ill. 2d 542.) This "public duty" rule "embodies the Conclusion that a police department's negligence-its oversights, blunders, omissions-is not the proximate or legal cause of harms committed by others." (Porter v. City of Urbana (1980), 88 Ill. App. 3d 443, 445, 410 N.E.2d 610.) A narrow exception to this rule arises, however, where a special relationship exists between the police and an individual, thereby creating a "special duty" owed by the police to the individual. (See, e.g., Gardner v. Village of Chicago Ridge (1966), 71 Ill. App. 2d 373, 380, 219 N.E.2d 147, after remand (1970), 128 Ill. App. 2d 157, 262 N.E.2d 829 (police officers owed a duty to the plaintiff, who "was called into a position of peril by the police" when he accompanied them to identify his assailants from an earlier attack and was attacked again by suspects under the control of the police).) In determining whether a special duty is owed, the following requirements must be met: "(1) the municipality must be uniquely aware of the particular danger or risk to which plaintiff is exposed; (2) there must be allegations of specific acts or omissions on the part of the municipality; (3) the specific acts or omissions must be either affirmative or wilful in nature; and (4) the injury must occur while the plaintiff is under the direct and immediate control of employees or agents of the municipality." (Emphasis added.) Marshall v. Ellison (1985), 132 Ill. App. 3d 732, 737, 477 N.E.2d 830.

In the instant case, plaintiff concedes that he is unable to satisfy the fourth requirement of the special duty exception, i.e., he was not in the immediate control of the police when he was attacked by Rosario. He argues, however, that the control requirement should be eliminated as an element of the special duty exception and, alternatively, that the special duty exception should be expanded to include individuals who are material witnesses, as well as individuals who "assist" the police in making an arrest of a wrongdoer and who may be "foreseeably" injured by bystanders at the scene after the police have departed. In support thereof, he first asserts that the "control" requirement, which was originally articulated in Bell v. Village of Midlothian (1980), 90 Ill. App. 3d 967, 414 N.E.2d 104, is "based on a sandy foundation" and is therefore an erroneously formulated requirement under the special duty exception. Specifically, plaintiff argues that Brooks v. Lundeen (1977), 49 Ill. App. 3d 1, 364 N.E.2d 423, the case cited to in Bell in support of the control requirement, is "inapposite to the rule for which it is cited."

We first observe that our supreme court has not taken exception to application of the fourth requirement as an element of stating a cause of action in negligence against police officers under the special duty exception to their tort immunity under the Act. (See Curtis v. County of Cook (1982), 109 Ill. App. 3d 400, 440 N.E.2d 942, aff'd in part and rev'd in part (1983), 98 Ill. 2d 158, 456 N.E.2d 116 (the appellate court's treatment of the special duty issue was deemed "adequate and correct" by our supreme court).) Consideration of this element also has been embraced with regularity in our appellate decisions. See, e.g., Kavanaugh v. Midwest Club, Inc. (1987), 164 Ill. App. 3d 213, 517 N.E.2d 656; Hernandez v. Village of Cicero (1986), 151 Ill. App. 3d 170, 502 N.E.2d 1226; Luber v. City of Highland (1986), 151 Ill. App. 3d 758, 502 N.E.2d 1243; Tannenbaum v. Lincoln National Bank (1986), 143 Ill. App. 3d 572, 493 N.E.2d 143; 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.

In addition, plaintiff's specific argument that the control element is based on a "sandy foundation," i.e., Bell's citation to Brooks v. Lundeen (1977), 49 Ill. App. 3d 1, 364 N.E.2d 423, in support thereof, was rejected in Fessler v. R.E.J. Inc. (1987), 161 Ill. App. 3d 290, 514 N.E.2d 515, appeal denied (1988), 118 Ill. 2d 542. In Brooks, the decedent drove up to a roadblock scene, two police officers initiated control over him by directing him to park his car on the shoulder of the road, they did not warn him of the reason for the roadblock, and he was subsequently killed when Lundeen's car smashed into his parked car. On appeal, this court upheld the jury's verdict in favor of the plaintiffs on their wrongful death action, resting its decision upon the existence of an affirmative duty to warn which it found to arise once a special relationship was created between decedent and the police upon the action of the police in directing decedent to park his car on the shoulder of the road.

Based on the foregoing, plaintiff argues that since the question of whether the officers " had to have been present at the accident in order for Plaintiffs to prevail was not an issue" in Brooks, Brooks is insufficient authority to support the Bell control requirement. Clearly, plaintiff's argument is without merit. The Brooks court's holding in fact was based on the special relationship created by the presence of the police and their initial control of decedent in directing him to park his car on the shoulder of the roadway. Accordingly, we agree with the Fessler court that Brooks sufficiently supports the control requirement articulated in Bell.

We also reject plaintiff's contention that the police owed him a special duty based on his status as a "material witness." Plaintiff relies on Gardner v. Village of Chicago Ridge (1966), 71 Ill. App. 2d 373, 219 N.E.2d 147, after remand (1970), 128 Ill. App. 2d 157, 262 N.E.2d 829, and Schuster v. City of New York (1958), 5 N.Y.2d 75, 154 N.E.2d 534, 180 N.Y.S.2d 265, cited by the Gardner court, in support of this argument. In Gardner, the court found that the police owed the plaintiff a duty where the plaintiff "was called into a position of peril" by the police when he agreed to accompany them to identify the assailants who had beaten him earlier and was attacked by the suspects who were under the control of the police. In Schuster, the plaintiff supplied information to the police at their request through public notices to private citizens to report the whereabouts of a well-known criminal, the plaintiff's part in the criminal's capture was widely publicized, he received threats as a result thereof and notified the police but did not receive any protection from them, and he was subsequently killed three weeks later. The Schuster court held that where a municipality uses a private person in making an arrest, it owes a duty to that person to furnish protection to ...


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