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12/21/95 HELEN CALLOWAY v. ARTHUR KINKELAAR ET AL.

December 21, 1995

HELEN CALLOWAY, APPELLEE,
v.
ARTHUR KINKELAAR ET AL., APPELLANTS.



Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Effingham County, the Hon. Harold H. Pennock III, Judge, presiding.

The Honorable Justice McMORROW delivered the opinion of the court: Justice Freeman, specially concurring: Justice Heiple, dissenting: Chief Justice Bilandic joins in this dissent.

The opinion of the court was delivered by: Mcmorrow

The Honorable Justice McMORROW delivered the opinion of the court:

In this case we determine whether the Domestic Violence Act of 1986 (the Act) permits a cause of action for damages in favor of persons protected by the Act whose injuries are alleged to have been caused by the willful and wanton misconduct of police officers in performing or failing to perform the affirmative obligations imposed on them by the Act.

BACKGROUND

Plaintiff, Helen Calloway, filed a four-count complaint in the circuit court of Effingham County against the sheriff of Effingham County, Arthur Kinkelaar, and the County of Effingham seeking to recover damages for injuries she sustained as a result of defendants' alleged willful and wanton or negligent failure to comply with certain provisions of the Illinois Domestic Violence Act of 1986 (750 ILCS 60/101 et seq. (West 1992)). The complaint pleads one count of willful and wanton conduct and one count of negligence against each defendant.

The complaint alleges that during plaintiff's marriage to Michael Calloway, he engaged in a physically and mentally abusive course of conduct toward her and her children, including threats to kill her and to kill himself. Based on Calloway's conduct, plaintiff was granted an emergency order of protection on March 13, 1991, and a plenary order of protection on March 20, 1991. After the court entered these orders, the sheriff personally served them upon Michael Calloway. Plaintiff alleges that the sheriff knew or should have known of the terms of the orders of protection, which prohibited the following conduct: harassment or interference with the liberty of plaintiff or her children, entering plaintiff's place of employment, telephoning her at her work place, and entering or remaining at the home of plaintiff's parents.

On April 4, 1991, beginning at approximately 5:30 a.m., Michael Calloway violated the order of protection by making threatening telephone calls to plaintiff at her workplace, including a threat to kill himself in front of plaintiff and their five-year-old daughter if she did not come to the marital home to pick up the daughter. Plaintiff called her father to ask him to pick up the child. Immediately thereafter, Michael Calloway telephoned plaintiff at work again. During this conversation plaintiff informed him that her father was going to pick up their daughter. Calloway threatened to kill plaintiff's father if he entered the marital residence. Plaintiff then telephoned the Effingham County sheriff's department to report the threatening calls. Plaintiff told the dispatcher that her husband was armed with a gun and that their child was with him. She gave the dispatcher the location of the home, and also told the dispatcher she was going there herself to ensure the safety of her daughter.

At approximately 6 a.m., the sheriff was notified by his office of the threats reported by plaintiff. In response, the sheriff travelled to the marital residence. He briefly observed the house and then drove off, without further investigation.

Plaintiff returned to work after determining that her daughter and father were not at the marital home. Shortly thereafter she received additional threatening calls from Michael Calloway. He told plaintiff he had seen the sheriff's car in front of the house.

At approximately 7:30 a.m., the dispatcher from the sheriff's department telephoned plaintiff and asked whether she had gone to the marital home. Plaintiff responded that she had and that her daughter was safe, but that defendant was continuing to make threatening telephone calls to her at work. Plaintiff also emphasized to the dispatcher that Michael Calloway was in violation of the orders of protection. The dispatcher acknowledged her awareness of the order, saying that she had a copy of it in front of her.

At approximately 7:50 a.m., the sheriff department's dispatcher again called plaintiff and told her that officers within the department were advising plaintiff to call her attorney and ask him what should be done. Approximately 10 minutes later, Michael Calloway, armed with a gun, entered the restaurant in which his wife was working and went to the kitchen, where he found plaintiff. He grabbed her by the hair and forced her to leave with him, at gunpoint. She was forced to drive his pickup truck.

At 8:39 a.m., a law enforcement officer saw the pickup truck and followed it. Within minutes, State troopers, acting in accordance with orders, blocked the road in front of Michael Calloway's pickup truck. As the truck stopped, plaintiff jumped out and concealed herself behind one of the parked squad cars. Michael Calloway stayed inside the truck, where troopers at the scene found him with a self-inflicted gunshot wound to the chest.

As a result of defendants' alleged breaches of duty, plaintiff claims that she has sustained extreme emotional distress and trauma, requiring her to undergo psychological counseling and causing her to sustain significant financial losses.

The above allegations form the factual basis for all four counts of the complaint. Counts I and II are directed against the sheriff individually and counts III and IV are directed against the county under a theory of respondeat superior. The legal basis for counts I and III is the alleged willful and wanton violation of statutory duties found in the Domestic Violence Act. Counts II and IV allege negligent violations of the Act.

Defendants filed a motion to dismiss the complaint pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)), arguing that defendants owed plaintiff no actionable duty and therefore she failed to state a cause of action. In support, defendants invoked the common law public duty doctrine, under which municipalities and officers are immunized from liability for failing to supply police protection to specific individuals, as distinct from the public in general. Defendants further argued that the sole exception to this general rule of no liability is the special duty doctrine, which involves a multiple-factored test to determine whether, under a given set of circumstances, a police officer may be held liable to an injured plaintiff based on the officer's undertaking of a special duty toward that individual. Defendants argued that the complaint could not withstand the motion to dismiss because plaintiff failed to adequately plead all of the elements of the special duty doctrine, specifically the requirement that the plaintiff was under the immediate and direct control of the officers at the time of her injury.

The trial court dismissed the entire complaint, with prejudice, for failure to state a cause of action. The appellate court affirmed the dismissal of the negligence counts but reversed the dismissal of counts I and III, which were premised on willful and wanton violations of duties imposed by the Domestic Violence Act. We allowed defendants' petition for leave to appeal (145 Ill. 2d R. 315).

ANALYSIS

The ultimate issue for this court to determine is whether the well-pleaded allegations of plaintiff's complaint are actionable under Illinois law. Defendants focus almost exclusively on common law and statutory principles of governmental immunity. According to defendants, plaintiff cannot state a cause of action pursuant to the Domestic Violence Act, even for willful and wanton misconduct, unless she first establishes the elements of the special duty exception to governmental immunity. Defendants also raise a challenge to the constitutionality of the special duty doctrine and request this court to abolish it.

The complaint alleges that "plaintiff was a person entitled to special protection pursuant to the provisions of [the Domestic Violence Act and Code of Criminal Procedure], and had been so found by virtue of the Emergency Order of Protection and Plenary Order of Protection ***." Defendants, who knew that Michael Calloway was in violation of the orders of protection, had probable cause to arrest him pursuant to the Domestic Violence Act. In light of the information given to defendants regarding Calloway's abuse, threats, and harassment of plaintiff, defendants had a duty under the statute to "immediately use all reasonable means to prevent further abuse and harassment, including *** providing or arranging transportation for plaintiff to a place of safety; *** [and] arresting Michael Calloway." The complaint further alleges that defendants breached their statutory duties by engaging in conduct that was willful and wanton and/or negligent. These acts or omissions included defendants' failure to arrest or disarm Calloway in light of their knowledge of his threatening conduct, failure to arrange for plaintiff's transportation to a safe place, and failure to initiate an investigation upon driving to Calloway's home after being advised of the threats.

In deciding whether a complaint states a cause of action based on the negligent violation of a statute or ordinance, courts generally inquire whether the legislation in issue was designed to protect human life or property and, if so, whether the plaintiff is a member of the class intended to be protected. (E.g., Kalata v. Anheuser-Busch Cos. (1991), 144 Ill. 2d 425, 434, 163 Ill. Dec. 502, 581 N.E.2d 656.) This court also has recognized that tort liability may arise, on public policy grounds, for tortious conduct that would defeat the aims and goals of a particular statutory scheme. (See Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 23 Ill. Dec. 559, 384 N.E.2d 353 (penalizing employer's retaliatory discharge of employee who filed worker's compensation claim).) If the plaintiff is a member of the protected class and his or her injury is of the type that the statute was intended to protect against, the plaintiff may recover upon establishing that the defendant's violation of the ordinance or statute proximately caused plaintiff's injury. ( Curtis v. County of Cook (1983), 98 Ill. 2d 158, 162, 74 Ill. Dec. 614, 456 N.E.2d 116.) A private remedy may be implied from a remedial statute where there is a clear need to effectuate the purpose of such statute ( Sawyer Realty Group. Inc. v. Jarvis Corp. (1982), 89 Ill. 2d 379, 389, 59 Ill. Dec. 905, 432 N.E.2d 849), even though no express remedy has been provided in the legislation ( Sawyer, 89 Ill. 2d at 386, citing Kelsay v. Motorola. Inc. (1978), 74 Ill. 2d 172, 23 Ill. Dec. 559, 384 N.E.2d 353).

In the case at bar, plaintiff's complaint is premised on the provisions of the Domestic Violence Act of 1986, which the General Assembly intended to be "liberally construed and applied to promote its underlying purposes" (750 ILCS 60/102 (West 1992)). Section 102 sets forth the Act's purposes: to "recognize domestic violence as a serious crime against the individual and society which *** promotes a pattern of escalating violence which frequently culminates in intra-family homicide" (750 ILCS 60/102(1) (West 1992)) and to "recognize that the legal system has ineffectively dealt with family violence in the past *** and has not adequately acknowledged the criminal nature of domestic violence; that, although many laws have changed, in practice there is still widespread failure to appropriately protect and assist victims" (750 ILCS 60/102(3) (West 1992)).

Of particular significance to the case at bar are two additional provisions of section 102, which state the following as express purposes of the Act:

"(4) Support the efforts of victims of domestic violence to avoid further abuse by promptly entering and diligently enforcing court orders which prohibit abuse and, when necessary, reduce the abuser's access to the victim ***.

***

(6) Expand the civil and criminal remedies for victims of domestic violence; including, when necessary, the remedies which effect physical separation of the parties to prevent further abuse." (Emphasis added.) 750 ILCS 60/102(4), (6) (West 1992).

Under section 201, "persons protected by this Act" include "any person abused by a family or household member" (750 ILCS 60/201(a)(i) (West 1992)). In the case at bar there is no dispute that plaintiff is a person protected under the Act or that she obtained, in accordance with the procedures outlined in article II of the Act, an emergency and a plenary order of protection based on Michael Calloway's abuse and harassment.

"Abuse" is defined as "physical abuse, harassment, intimidation of a dependent, interference with personal liberty." (750 ILCS 60/103(1) (West 1992).) "Harassment" includes the following types of conduct, which unless "rebutted by a preponderance of the evidence *** shall be presumed to cause emotional distress":

"(i) creating a disturbance at petitioner's place of employment;

(ii) repeatedly telephoning petitioner's place of employment, home or residence;

(vi) threatening physical force, confinement or restraint on one or more occasions." 750 ...


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