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03/22/96 LINDA LAWSON v. CITY CHICAGO

March 22, 1996

LINDA LAWSON, AS MOTHER AND SPECIAL ADMINISTRATOR OF THE ESTATE OF DELONDYN LAWSON, DECEASED, PLAINTIFF-APPELLANT,
v.
CITY OF CHICAGO, A MUNICIPAL CORPORATION; POLICE SUPERINTENDENT MATTHEW RODRIGUEZ; AND CHICAGO BOARD OF EDUCATION, A BODY POLITIC AND MUNICIPAL CORPORATION, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE PADDY H. McNAMARA, JUDGE PRESIDING.

The Honorable Justice Gordon Delivered The Opinion OF The Court: Cousins, Jr., J. and Hourihane*, J., concur.

The opinion of the court was delivered by: Gordon

The Honorable Justice GORDON DELIVERED THE OPINION OF THE COURT:

The plaintiff, Linda Lawson, as mother and special administrator of the estate of Delondyn Lawson, filed the instant wrongful death and negligence action against the defendants, the City of Chicago and Police Superintendent Matthew Rodriguez (the City) *fn1 and the Chicago Board of Education (the Board), seeking to recover damages resulting from the death of her son, Delondyn, who was shot by a fellow student on the premises of Tilden High School (Tilden). Counts I, II and III against the City were dismissed pursuant to section 2-619 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619 (West 1992)) based on the City's tort immunity and lack of maintenance, ownership or control of the subject property. Counts IV, V and VI against the Board were dismissed pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 1992)) for failure to state a cause of action. The plaintiff filed an amended complaint against the Board consisting of three counts that closely resembled counts IV, V and VI of the original complaint. That amended complaint also was dismissed pursuant to section 2-615 of the Code. The plaintiff filed separate appeals from both dismissals, and those appeals were consolidated by motion in this court.

Plaintiff's multi-count complaint sought recovery against the City and the Board based on theories of premises liability; voluntary undertaking; and special duty. Count I of the original complaint against the City and count I of the first amended complaint against the Board alleged, respectively, that the City and the Board owned, operated, maintained and controlled Tilden and had a duty to maintain it and not allow injuries to persons lawfully on its premises. Those counts further alleged that the City and Board negligently permitted persons who were armed and dangerous on the premises and failed to operate or use metal detectors on November 20, 1992, the day the decedent was shot. *fn2 Count II of the respective complaints alleged that the City and Board were responsible for the safety and protection of all individuals lawfully on the premises and that by placing metal detectors at the school had voluntarily undertaken to provide special protection to prevent criminal attacks from third persons. Count III of the complaint and first amended complaint alleged that the City and the Board, respectively, owed a special duty to the decedent because the decedent was within their direct and immediate control and because the defendants were uniquely aware of a particular danger or risk to the decedent. Those counts also alleged that, in response to the alleged danger, the defendants purchased metal detectors but omitted to use the detectors on November 20, 1992, the day the decedent was shot.

Plaintiff's first amended complaint against the Board differed from counts IV, V and VI of the original complaint primarily in allegations concerning Joseph White, the student who shot Delondyn. The amended complaint alleged that Joseph White, who was on suspension from Tilden, "had a violent and belligerent disposition" and had been arrested for criminal trespass at Tilden on October 28, 1992 and for gambling on school grounds on November 16, 1992. It further alleged that the Board had "actual or constructive knowledge of the potential danger of student's, Joseph White [sic ], propensity to violate both the law and school regulations" and negligently permitted White, who was armed and dangerous, to enter the school premises on November 20, 1992. An additional difference between the original and amended complaints concerned allegations in the latter regarding the presence of metal detectors at Tilden. The latter complaint stated the detectors were operational and used on an intermittent basis but were not in use on the day Delondyn was killed. The amended complaint also alleged that the Board's installation of the metal detectors at Tilden was an undertaking to provide greater protection to students at that school rather than at other schools generally.

The City moved to dismiss plaintiff's counts I, II and III based on the fact that it neither owned nor controlled Tilden High School nor the metal detectors therein. In support thereof, the City relied upon the Board's answer to the City's request to admit facts in which the Board admitted ownership of the school property and of the metal detectors installed thereon. The City also argued that it was immune from liability for failure to make an arrest (745 ILCS 10/4-107 (West 1992)) and for failure to provide adequate police protection, to prevent the commission of crimes, to detect or solve crimes, and to identify or apprehend criminals (745 ILCS 10/4-102 (West 1992)). Finally, the City argued it owed no special duty to the plaintiff's decedent because the City did not exercise control over the decedent or create the perilous condition. The trial court granted the City's motion on all three counts; and the plaintiff appeals with respect to counts II and III only.

The Board's motion to dismiss plaintiff's first amended complaint for failure to state a cause of action argued that plaintiff's premises liability theory contained insufficient allegations of a condition that gave rise to liability. The motion also argued that the Board's failure to operate the metal detectors on the day the decedent was shot was not a breach of its duty with respect to its voluntary undertaking to provide metal detectors since, as alleged by the plaintiff, the voluntary undertaking was to provide metal detectors on an intermittent and random basis which it had done. As to the special duty count, the Board argued that the plaintiff did not allege sufficient facts of a special relationship between the Board and the decedent to elevate decedent's status to a position higher than the general public. The trial court dismissed plaintiff's first amended complaint finding the complaint did not allege sufficient facts of premises liability or special duty; and the plaintiff appeals from that dismissal as well.

The issues presented for review are whether the City is liable in tort for a voluntary undertaking; whether the City owed a special duty to the decedent; and whether the plaintiff's first amended complaint stated causes of action against the Board for premises liability, voluntary undertaking and special duty.

A motion to dismiss pursuant to section 2-615 of the Code attacks the legal sufficiency of the complaint whereas a section 2-619 motion raises defects or defenses which negate a plaintiff's cause of action completely or refute crucial conclusions of law or conclusions of material fact that are unsupported by allegations of specific fact. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 639 N.E.2d 1282, 203 Ill. Dec. 463 (1994). In ruling on the latter motion, the court may consider external submissions of the parties. American Health Care Providers, Inc. v. County of Cook, 265 Ill. App. 3d 919, 638 N.E.2d 772, 202 Ill. Dec. 904 (1994). Motions to dismiss pursuant to either section of the Code admit all well-pleaded facts together with all reasonable inferences which can be gleaned from those facts. E.g., Calloway v. Kinkelaar, 168 Ill. 2d 312, 659 N.E.2d 1322, 213 Ill. Dec. 675 (1995); Spillyards v. Abboud, 1996 Ill. App. LEXIS 96, Nos. 1-93-3866, 1-94-0075, slip op. at 5 (1st Dist. Feb. 23, 1996); Winfrey v. Chicago Park District, 274 Ill. App. 3d 939, 654 N.E.2d 508, 211 Ill. Dec. 46 (1995). They do not admit conclusions of law or conclusions of fact unsupported by allegations of specific fact. American Health Care Providers, Inc. v. County of Cook. Appellate review of a dismissal pursuant to either motion is de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 619 N.E.2d 732, 189 Ill. Dec. 31 (1993).

I. Dismissal of City

With respect to plaintiff's causes of action against the City, it is well settled under the common law public duty rule that a municipality is not liable in tort when performing customary duties toward the public at large ( Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 565 N.E.2d 654, 152 Ill. Dec. 121 (1990)) or for failing to provide police protection or to prevent the tortious or unlawful acts of others ( Huey v. Town of Cicero, 41 Ill. 2d 361, 243 N.E.2d 214 (1968); Santy v. Bresee, 129 Ill. App. 3d 658, 473 N.E.2d 69, 84 Ill. Dec. 853 (1984)). That common law rule is now embodied in the legislative enactment of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 1992)). Section 4-102 of the Tort Immunity Act provides in pertinent part:

"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." 745 ILCS 10/4-102 (West 1992).

It is the plaintiff's contention that, notwithstanding the Tort Immunity Act, the City is liable for its voluntary undertaking to operate the metal detectors and in failing to operate them on the day Delondyn was shot. See Restatement (Second) of Torts ยง 323 (1965). *fn3 In support of this contention, the plaintiff relies on Cross v. Wells Fargo Alarm Services, 82 Ill. 2d 313, 412 N.E.2d 472, 45 Ill. Dec. 121 (1980); Siklas v. Ecker Center for Mental Health, Inc., 248 Ill. App. 3d 124, 617 N.E.2d 507, 187 Ill. Dec. 299 (1993) and Comastro v. Village of Rosemont, 122 Ill. App. 3d 405, 461 N.E.2d 616, 78 Ill. Dec. 32 (1984). However, Cross and Siklas are not relevant to the case at bar since those cases did not involve the Tort Immunity Act. See Rascher v. City of Champaign, 262 Ill. App. 3d 592, 595, 634 N.E.2d 1121, 1122, 199 Ill. Dec. 767 (1994) ("[Cross ] did not involve the question of governmental tort immunity and, therefore, lends no support to plaintiff's position" that city's voluntary undertaking overrides Tort Immunity Act). The ...


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