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09/25/96 GAIL HARINEK v. CITY CHICAGO

September 25, 1996

GAIL HARINEK, PLAINTIFF-APPELLANT,
v.
CITY OF CHICAGO, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Patrick E. McMann, Judge Presiding.

Released for Publication October 22, 1996.

The Honorable Justice Greiman delivered the opinion of the court: Tully, P.j., and Cerda, J., concur.

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

Gail Harinek (plaintiff) appeals the trial court's dismissal of her second amended complaint which states claims of negligence (count II) and willful and wanton conduct (count III) against the City of Chicago (defendant or the City) for acts that occurred during a fire drill conducted by the City's Fire Department (the Department). The trial court's order of dismissal, entered pursuant to section 2-619 of the Code of Civil procedure (735 ILCS 5/2-619 (West 1992)), held that the City was immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/1-101 et seq. (West 1992)) and did not owe plaintiff a "special duty."

Plaintiff's second amended complaint alleges that on April 28, 1993, the Department conducted a fire drill on the eighth floor of the Chicago Title and Trust Building located at 171 North Clark Street in Chicago. Pursuant to a plan conceived by the City's fire marshall, plaintiff and fellow employees of the Chicago Title Insurance Company were instructed by the fire marshall to assemble in a small corridor near a bank of elevators. Plaintiff was instructed to stand next to a heavy fire door because the corridor was "overcrowded."

During the course of the drill, a co-worker unexpectedly opened the door which, due to her position in the door's path, struck and injured plaintiff.

In addition to plaintiff's claim of negligence, she specifically alleges that the fire marshall was "uniquely aware of the danger into which he placed plaintiff, that he was in control of plaintiff at the time she was injured, and that he owed a special duty towards Plaintiff."

The City moved to dismiss counts II and III, asserting that it did not owe plaintiff a duty in tort and that it was immune from liability by reason of the provisions of the Act.

The trial court ruled that the Act barred plaintiff's claim against the City and dismissed Counts II and III of plaintiff's complaint with prejudice. At the same time, the trial court denied the building owner's motion to dismiss the count against it on unrelated grounds. Plaintiff appealed to this court pursuant to Supreme Court Rule 304 (155 Ill. 2d R. 304(a)) on April 5, 1995.

When reviewing a motion to dismiss, the court must accept all well-pleaded facts as true and construe all reasonable inferences in favor of the plaintiff. Majewski v. Chicago Park District, 177 Ill. App. 3d 337, 338, 126 Ill. Dec. 724, 532 N.E.2d 409 (1988). The pertinent inquiry is whether the allegations, when viewed in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. Oropeza v. Board of Education, 238 Ill. App. 3d 399, 402, 179 Ill. Dec. 650, 606 N.E.2d 482 (1992). Our review of this dismissal is de novo. See Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 189 Ill. Dec. 31, 619 N.E.2d 732 (1993).

As a preliminary matter, the parties dispute whether the City owed plaintiff a legal duty of care. The threshold question in a negligence case is whether the defendant owes a duty of care to the plaintiff. Curtis v. County of Cook, 98 Ill. 2d 158, 162, 74 Ill. Dec. 614, 456 N.E.2d 116 (1983). The existence of a duty and the existence of immunity are separate and distinct issues. Barnett v. Zion Park District, 171 Ill. 2d 378, 388, 216 Ill. Dec. 550, 665 N.E.2d 808 (1996). Since the abolition of sovereign immunity, our courts have held that governmental units are liable in tort on the same basis as private tortfeasors unless a valid statute dealing with tort immunity imposes limitations upon that liability. Barnett, 171 Ill. 2d at 387. Whether a duty exists is a question of law subject to de novo review. Wolowinski v. City of Chicago, 238 Ill. App. 3d 639, 641, 179 Ill. Dec. 441, 606 N.E.2d 273 (1992).

Since we recognize that a private entity would, under the circumstances of this case, owe plaintiff a duty of reasonable care, we reject the City's claim of "no duty" based on the common law rule that a governmental body exercising its governmental authority for a governmental purpose is generally not liable in negligence. *fn1

Having recognized that the City owed plaintiff a duty of reasonable care in the performance of a City-planned and orchestrated fire drill, we next examine whether the City is immune ...


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