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05/11/94 HELEN CALLOWAY v. ARTHUR KINKELAAR AND

May 11, 1994

HELEN CALLOWAY, PLAINTIFF-APPELLANT,
v.
ARTHUR KINKELAAR AND COUNTY OF EFFINGHAM, A MUNICIPAL CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Effingham County. No. 92-L-2. Hon. Harold H. Pennock, III, Judge Presiding.

Petition for Leave to Appeal Allowed October 6, 1994.

Goldenhersh, Rarick, Maag

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

Plaintiff, Helen Calloway, appeals from an order of the circuit court of Effingham County granting the motions of defendants, ArthurKinkelaar, as sheriff of Effingham County (hereinafter sheriff), and the county of Effingham (hereinafter county), to dismiss plaintiff's complaint for failure to state a cause of action. The trial court followed the general rule that law enforcement officials have no duty to protect individual citizens from crime, only a duty to protect the general citizenry. We affirm in part, reverse in part, and remand.

I

Plaintiff brought a four-count complaint against the sheriff and the county for damages she sustained after she was abducted by her estranged husband. Count I, a wilful and wanton count, and count II, a negligence count, are directed against the sheriff for his failure to fulfill an alleged duty to plaintiff by virtue of an order of protection which was previously entered with the express purpose of preventing such abuse and harassment by her estranged husband. (Ill. Rev. Stat. 1991, ch. 40, par. 2312-1 (now 750 ILCS 60/201 (West 1992)); ch. 38, par. 112A-4(i) (now 725 ILCS 5/112A-4(i) (West 1992)).) Counts III and IV mirror counts I and II but are directed against the county under a theory of respondeat superior. Plaintiff's complaint alleges that during her marriage, her husband engaged in a course of physically and mentally abusive conduct toward her and her two children, including physical attacks and death threats to plaintiff and threats of her husband to commit suicide. As a result of her husband's violent and abusive conduct, plaintiff was granted an emergency order of protection on March 13, 1991, which prohibited her husband from:

"(a) Harassing, physically abusing, or interfering with the personal liberty of Plaintiff or her children;

(b) Entering or remaining at the home of Plaintiff's parents;

(c) Entering Plaintiff's place of employment at Garden's Restaurant in Effingham, Illinois; [or]

(d) Making telephone calls to Plaintiff's place of employment."

On March 13, 1991, the sheriff personally served the emergency order of protection on the husband, and on March 20, 1991, plaintiff was granted a plenary order of protection. The plenary order of protection was personally served on her husband by the sheriff on the same day it was granted, and thus, the sheriff "knew or should have known of the prohibitions contained therein.

At approximately 5:30 a.m., on April 4, 1991, contrary to the provisions of the order of protection, the husband began making telephone calls to plaintiff at her place of employment. The calls were threatening in nature and included, among other threats, athreat by the husband to kill himself in the presence of plaintiff and their five-year-old daughter if plaintiff did not go to the marital home to pick up their daughter. In response to such threats, Plaintiff called her father and asked him to go to the marital home and pick up her daughter. Immediately after calling her father, plaintiff received another call from her estranged husband at which time she advised him that her father was coming to pick up their daughter. The husband responded that he would kill plaintiff's father if he entered the marital home. At approximately 5:50 a.m., plaintiff telephoned the Effingham County Sheriff's Department and advised the dispatcher of the telephone calls she was receiving from her estranged husband, including his threats to kill plaintiff's father. Plaintiff further advised the dispatcher that her husband was armed with a gun and that their minor daughter was with him. Plaintiff provided the dispatcher with the location of the marital home and also told the dispatcher she was going to the marital home herself to ensure the safety of her daughter.

At approximately 6 a.m., the sheriff was notified by his office of the telephone calls and threats made by plaintiff's husband. In response, the sheriff drove to the marital residence and briefly observed it from his squad car. The sheriff left without further investigation. Upon her arrival, plaintiff determined that her daughter and father were not at the marital home. She then returned to the restaurant where she was employed. Shortly after her return, plaintiff received more threatening telephone calls from her estranged husband who told her he saw the sheriff in front of his home. At approximately 7:30 a.m., plaintiff received a telephone call from the sheriff's department dispatcher who asked plaintiff whether she had gone to the marital home. Plaintiff told her she had, and her daughter was safe, but her estranged husband was continuing to make harassing telephone calls to her. Plaintiff "advised and emphasized" to the dispatcher that her estranged husband was in violation of the order of protection. The dispatcher ...


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