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May 12, 1995


Appeal from the Circuit Court of Cook County. Honorable Lester D. Foreman, Judge Presiding.

The Honorable Justice Rakowski delivered the opinion of the court: McNAMARA, P.j., and Zwick, J., concur.

The opinion of the court was delivered by: Rakowski

JUSTICE RAKOWSKI delivered the opinion of the court:

Townhome owners appeal from the order dismissing with prejudice count XI of their Amended Complaint which sought relief from the Village of Tinley Park (Village) for its alleged gross negligence in issuing a building permit and failing to disclose to plaintiffs the poor soil conditions at the site of their townhomes. The issue before this court is whether the trial court erred in dismissing count XI against the Village on the ground that plaintiffs failed to allege a special duty giving rise to a negligence action against the Village. We affirm.

In October 1992, plaintiffs Millericks and Lugo and Calabrese purchased two respective townhomes located at the Meadow Mews townhome complex in the Village. Prior to entering into the contracts to buy their townhomes, plaintiffs each asked the Village's building department about the presence of peat on the property. Unnamed Village employees told the Millericks and Lugo there was no peat present on the property. Allegedly, on three separate occasions, Lugo called the building department and was told there was no peat present on the property.

In April 1993, plaintiffs discovered the floors in their individual townhomes were sloping from settlement, which was allegedly caused because the townhomes were constructed on shallow spread footings in peat and organic silt. Plaintiffs then filed an 11-count Amended Complaint naming as defendants the Village, a residential home builder (Tolan), and a soil engineer (Walter). The Amended Complaint alleged defendant Walter prepared four soil reports for the Meadow Mews property. In the first two reports, Walter stated the soil testing revealed a 15-foot layer of compressible peat and organic silt. He recommended removing the peat and organic silt prior to construction and replacing it with fill, or building the townhomes on caisson foundations. In Walter's last two reports, he recommended excavation of only two or three feet of unsuitable soil and construction of the townhomes on shallow spread footings. The Village received copies of all four reports.

In count XI of the Amended Complaint, plaintiffs sought damages from the Village for its gross negligence in issuing a building permit to Tolan, failing to enforce Village building codes, and misstating to plaintiffs the condition of the soil when asked about the presence of peat. The Village filed a motion to dismiss pursuant to sections 2-615 and 2-619 (735 ILCS 5/2-615, 2-619 (West 1992)) asserting that plaintiffs' case did not come under the special duty exception, and that even if plaintiffs' complaint did allege a special duty, sections 2-103, 2-104, and 2-106 of the Local Governmental and Government Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-103, 2-104, 2-106 (West 1992)) barred their claim. The trial court dismissed count XI against the Village, holding the special duty exception did not apply.

Contrary to plaintiffs' assertion, the trial court did not rely on section 2-104 of the Tort Immunity Act (745 ILCS 10/2-104) in dismissing count XI. Rather, the record reveals the trial court dismissed count XI because plaintiffs failed to allege a special duty. The Tort Immunity Act does not create duties or obligations, but provides municipalities with immunities or affirmative defenses for specific government functions which bar a plaintiff's right to recovery. Ramirez v. Village of River Grove (1994), 266 Ill. App. 3d 930, 932, 641 N.E.2d 7, 204 Ill. Dec. 48.

In order to survive a motion to dismiss, a complaint must allege sufficient facts to state a cause of action. Here, plaintiffs' complaint based on negligence must establish the Village owed plaintiffs a duty, breached the duty, and the breach proximately caused plaintiffs' injuries or damages. ( Doe v. Calumet City (1994), 161 Ill. 2d 374, 384, 641 N.E.2d 498, 204 Ill. Dec. 274.) The existence of a duty is a question of law, and is a pivotal issue in this case. Absent a duty, there can be no recovery in negligence as a matter of law.

The law is clear that there is no common law duty to the general public for a municipality's failure to enforce an ordinance or building code. Liability only arises where a municipality owes plaintiffs a "special duty" that is different from the duty owed to members of the general public. ( Ferentchak v. Village of Frankfort (1985), 105 Ill. 2d 474, 475 N.E.2d 822, 86 Ill. Dec. 443; Lakeside Condominium "C" Assoc. v. Frediani Developers, Inc. (1985), 135 Ill. App. 3d 972, 482 N.E.2d 665, 90 Ill. Dec. 686; Stigler v. City of Chicago (1971), 48 Ill. 2d 20, 268 N.E.2d 26.) The following four elements comprise the special duty exception:

"'(1) the municipality must be uniquely aware of the particular danger or risk to which the plaintiff is exposed [citation];

(2) there must be allegations of specific acts or omissions on the part of the municipality [citation];

(3) the specific acts or omissions *** must be either affirmative or wilful in nature [citation]; and

(4) the injury must occur while the plaintiff is under the direct and immediate control of employees or agents of the municipality [citation].'" Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 508, 565 N.E.2d 654, 152 Ill. Dec. 121, quoting Bell v. Village of ...

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