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August 4, 1994


Nickels, Heiple, Bilandic

The opinion of the court was delivered by: Nickels

JUSTICE NICKELS delivered the opinion of the court:

This appeal reviews whether plaintiffs have stated acause of action against defendant police officers and their respective municipalities for conduct while responding to a police call. Plaintiffs are Jane Doe (Jane) and her two minor children, Betty and John. Defendants on appeal are Calumet City and its officers James Horka, Daniel Surufka and Kevin Beasley; and the Village of Burnham and its officer Gregory Giglio. An additional defendant, Ben Valentine, is not a subject of this appeal.

Plaintiffs filed a complaint in the circuit court of Cook County charging defendants inter alia with: (1) negligence; (2) intentional infliction of emotional distress; and (3) liability for gender discrimination under 42 U.S.C. § 1983 (1982). The circuit court granted defendants' motion to dismiss all three counts for failure to state a claim upon which relief could be granted. (Ill. Rev. Stat. 1987, ch. 110, par. 2-615.) The appellate court, with one Justice Dissenting, armed. (240 Ill. App. 3d 911.) We granted plaintiffs leave to appeal and took jurisdiction pursuant to Supreme Court Rule 315(a) (107 Ill. 2d R. 315(a)).

In reviewing the negligence count, we must determine whether the plaintiffs have alleged sufficient facts to show that a special relationship existed between Betty, John and the defendants such that the Local Governmental and Governmental Employees Tort Immunity Act (hereinafter Tort Immunity Act) does not preclude liability. (Ill. Rev. Stat. 1965, ch. 85, par. 1-101 et seq.) In addition, we must determine whether an exception to the Tort Immunity Act exists for willful and wanton negligence of a police officer. On review of the intentional infliction of emotional distress count, we decide whether plaintiffs' complaint alleges sufficient facts to support each element of a cause of action. We review plaintiffs' gender discrimination count to determine whether plaintiffs' complaint satisfies the statutoryprerequisites for a cause of action under 42 U.S.C. § 1983 (1982). We also examine the application of our pleading rules to section 1983 claims in light of the Supreme Court's decision striking down heightened pleading standards for civil rights litigation in the Federal courts.

A motion to dismiss tests the legal sufficiency of a pleading and a court must accept all well-pleaded facts as true. ( Szajna v. General Motors Corp. (1986), 115 Ill. 2d 294, 298, 104 Ill. Dec. 898, 503 N.E.2d 760.) The following recitation of facts is therefore taken from the plaintiffs' complaint. At 4:30 a.m. a male intruder, Valentine, illegally entered the apartment of plaintiffs while they slept. Valentine entered Jane's bedroom and climbed on top of her, grabbing her clothing and touching her breasts and genital area. At this time, Valentine declared his intention to rape Jane and also threatened to kill her.

Jane's two minor children, Betty and John, were in the room during Valentine's attack of Jane. Afraid for the safety of her children, Jane pleaded with Valentine not to continue the attack with her children present. Valentine got off the bed and directed the children to leave. Valentine followed the children out of the bedroom, threatening to kill them.

Jane then made a break for the front door and Valentine caught her on the stairs leading from the apartment. Valentine and Jane fell down the stairs and Valentine then beat Jane and again threatened to kill her. Jane grabbed hold of the railing and would not let go. Valentine then left Jane and reentered the apartment where Betty and John remained, locking the door behind him. Jane unsuccessfully attempted to gain entry to the apartment by kicking and pushing the door.

Jane, clothed only in undergarments, then left the building screaming. Several neighbors, having heard the screams, dialed 911. Officer Giglio was the first to arrive at the scene. Officer Horka arrived a short time later and assumed a supervisory role.

Officer Horka asked Jane what had happened. Jane told him that there was a man in her apartment, and that the man had tried to rape her and had threatened to kill her and her children. Jane also told Officer Horka that her children were still in the apartment and she feared for their safety. Jane pleaded with Horka to break down the door and rescue her children. Several neighbors also pleaded with the officers to break down the door.

Officer Horka declined to break down the door, stating that he did not want to be responsible for the property damage. Jane repeatedly stated that she would pay for any damage and screamed that she herself would save her children. When Jane attempted to rescue her children, several defendant police officers ordered her to stay put and then physically restrained her. The plaintiffs' complaint also alleges that the defendant police officers prevented neighbors from breaking down the door. Instead of breaking down the door, an unknown defendant police officer called the landlord who resided in South Holland, Illinois, and requested a key.

Plaintiffs' complaint alleges that Officer Horka questioned Jane in a rude, demeaning and accusatory manner and asked inappropriate questions. Horka asked Jane: "Where is your husband?" "Do you know the guy?" "Why would you leave your children in the apartment if there was a strange man there?" "Why did you leave the apartment without a key?" Officer Horka also described Jane as "an hysterical woman" and stated that "this girl is freaking out." The complaint also alleges that Officer Horka stated that Jane was not coherent, while the neighbors could fully comprehend Jane's statements.

After questioning Jane, Officer Horka checked the front door and rang several apartment buzzers. Officer Horka and Officer Giglio then walked around thebuilding allegedly checking Jane's windows and rear door. Plaintiffs' complaint claims the rear balcony sliding glass doors, 12 feet above ground level, were unlocked and ajar. In addition, plaintiffs' complaint alleges that the rear door of the building and the back door to Jane's apartment were unlocked.

Officer Horka ordered Officer Giglio to stay at the back door. Officer Horka then walked to the front of the building where he met Officer Surufka, who had just arrived at the scene. Officer Horka spoke by radio to his supervisor, Sergeant Targonski, who directed Horka to break down the door. Officer Beasley then arrived at the scene. Several paramedics arrived and told the officers that a "lock pick," a locksmith, and ladder were available for gaining entry into the apartment. Officers Horka, Giglio, Surufka and Beasley did not attempt to gain entry into Jane's apartment. Officers Beasley and Surufka tapped on windows and rang the doorbell to the apartment.

At approximately 5 a.m., Investigator Miller of the Calumet City police department arrived at the scene and interviewed Jane. Accompanied by several officers, Investigator Miller entered the apartment through the rear door of the building and the back door of the apartment, which were unlocked. When the officers arrived, they found Valentine raping Betty. From the time the officers arrived until Investigator Miller interceded, Valentine had repeatedly raped Betty and forced her to perform deviate sexual acts. Also during this time, Valentine choked and threatened John.

From these facts, plaintiffs' complaint framed three theories for transferring the cost of their injuries to the defendant police officers and their respective municipalities. Betty and John brought a negligence count alleging the special duty exception to defendants' statutory immunity. In addition, the negligence countalso alleged willful and wanton misconduct. Jane brought a count alleging intentional infliction of emotional distress. Jane, Betty and John all joined in a count seeking recovery for gender discrimination pursuant to 42 U.S.C. § 1983 (1982).

Section I examines whether Betty and John have alleged sufficient facts to state a cause of action for negligence. Section II examines whether Jane has stated a cause of action for intentional infliction of emotional distress. Section III questions whether plaintiffs' complaint satisfies the statutory prerequisites for personal and municipal liability under 42 U.S.C. § 1983 (1982).

I. Negligence

Plaintiffs' complaint has a count entitled "Duty to Protect/Special relationship." This count frames a theory of simple negligence based on the special duty exception to the common law and statutory immunities granted police officers and their municipalities. In addition to alleging simple negligence, the count also contains an allegation that the officers' conduct was willful and wanton. As the simple negligence count and the willful and wanton allegation raise distinct issues, we address them separately.

A. Simple Negligence

In order to state a cause of action for negligence, a plaintiffs complaint must establish that defendant owed plaintiff a duty, that defendant breached that duty, and that plaintiffs injury was proximately caused by the breach. ( Curtis v. County of Cook (1983), 98 Ill. 2d 158, 162, 74 Ill. Dec. 614, 456 N.E.2d 116.) A motion to dismiss tests the legal sufficiency of a pleading. ( Aguilar v. Safeway Insurance Co. (1991), 221 Ill. App. 3d 1095, 1100, 164 Ill. Dec. 418, 582 N.E.2d 1362.) In determining the legal sufficiency of a complaint, all well-pleaded facts are taken as true and all reasonable inferences from those facts are drawn in favor of plaintiff. ( Sharps v. Stein (1980), 90 Ill. App. 3d 435, 438, 45 Ill. Dec. 742, 413 N.E.2d 75.) However, mere Conclusions of law or fact unsupported by specific factual allegations in a complaint are disregarded on a motion to dismiss. ( Groenings v. City of St. Charles (1991), 215 Ill. App. 3d 295, 299, 158 Ill. Dec. 923, 574 N.E.2d 1316.) On appeal, a reviewing court must determine whether allegations of the complaint, when viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. McCauley v. Chicago Board of Education (1978), 66 Ill. App. 3d 676, 677, 23 Ill. Dec. 464, 384 N.E.2d 100.

At common law, municipalities in Illinois owed no duty to the public to supply police or fire protection. ( Santy v. Bresee (1984), 129 Ill. App. 3d 658, 661, 84 Ill. Dec. 853, 473 N.E.2d 69.) This "public duty" rule prevented a plaintiffs recovery for negligence. ( Porter v. City of Urbana (1980), 88 Ill. App. 3d 443, 445, 43 Ill. Dec. 610, 410 N.E.2d 610.) This common law protection afforded municipalities became embodied in statutory immunities granted under the Tort Immunity Act. (The Illinois Constitution of 1970 abolished the doctrine of sovereign immunity "except as the General Assembly may provide by law." Ill. Const. 1970, art. XIII, § 4.) The Tort Immunity Act provides:

"§ 4-102. Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes, failure to detect or solve crimes, and failure to identify or apprehend criminals." Ill. Rev. Stat. 1987, ch. 85, par. 4-102.

"§ 4-107. Neither a local public entity nor a public employee is liable for an injury caused by the failure to make an arrest or by releasing a person in custody." Ill. Rev. Stat. 1987, ch. 85, par. 4-107.

An exception to both the common law public duty rule and the statutory immunities has evolved where the actions of the municipality's agent showed a special relationship with the plaintiff that created a dutydifferent from the duty owed to the general public. ( Gardner v. Village of Chicago Ridge (1966), 71 Ill. App. 2d 373, 380, 219 N.E.2d 147 (finding "special duty" exists to exercise reasonable care where police call plaintiff into position of peril).) The courts have created a four-part test to determine whether plaintiffs can avail themselves of the special duty exception: (1) The municipality must be uniquely aware of the particular danger or risk to which plaintiff is exposed; (2) there must be specific acts or omissions on the part of the municipality; (3) the specific acts must be affirmative or willful in nature; and (4) the injury must occur while the plaintiff is under the direct and immediate control of municipal employees or agents. Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 508, 152 Ill. Dec. 121, 565 N.E.2d 654.

The trial court dismissed the action because Betty and John were not under the direct and immediate control of the officers. Plaintiffs argue that their complaint satisfies the direct and immediate control element based on allegations that the officers were in control of the scene and the building where the attack on Betty and John occurred. In particular, plaintiffs argue that Officer Horka's control over the other officers, Jane, and other potential rescuers satisfies the control prong.

This court has interpreted the control element to require that "the public employee initiates the circumstances which create the dangerous situation." ( Burdinie, 139 Ill. 2d at 525-26.) Applying this standard, this court has found the control element satisfied where an officer ordered a driver to halt in an active traffic lane and then directed her to inspect her license plate where she was injured. Leone v. City of Chicago (1993), 156 Ill. 2d 33, 40, 188 Ill. Dec. 755, 619 N.E.2d 119; see also Gordon v. County of Jackson (1992), 231 Ill. App. 3d 1017, 173 Ill. Dec. 562, 597 N.E.2d 270 (officer initiating dangerous situation by bringing intoxicated, unrestrained man knownto be violent to a hospital); Anthony v. City of Chicago (1988), 168 Ill. App. 3d 733, 119 Ill. Dec. 554, 523 N.E.2d 22 (firefighter initiating dangerous situation by ordering civilian to assist by opening elevator door); Brooks v. Lundeen (1977), 49 Ill. App. 3d 1, 7 Ill. Dec. 262, 364 N.E.2d 423 (officers initiating dangerous situation by ordering motorist to park next to road block when speeding motorist was approaching); Gardner v. Village of Chicago Ridge (1966), 71 Ill. App. 2d 373, 219 N.E.2d 147 (officer initiated dangerous situation by bringing witness to identify four defendants who proceeded to beat witness).

We find that plaintiffs' complaint does not allege sufficient facts to show that Betty and John were under the direct and immediate control of defendants. Defendant police officers did not initiate the circumstances that created the danger to Betty and John. The officers did not bring the intruder to the plaintiffs' home or order the children to remain there. Plaintiffs were not "called into a position of peril" by the police. ...

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