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HARRELL v. CITY OF CHICAGO HTS.

October 23, 1996

KEVIN HARRELL, as the Administrator of the Estate of Patrick E. Harrell, deceased, and DOLORES HARRELL, Plaintiffs,
v.
CITY OF CHICAGO HEIGHTS, ILLINOIS, a municipal corporation, ILLINOIS BELL TELEPHONE COMPANY, d/b/a AMERITECH ILLINOIS, and AMERITECH CORPORATION, Defendants.



The opinion of the court was delivered by: COAR

 Defendant City of Chicago Heights ("City") has filed a motion for summary judgment as to Counts I, II, and III of plaintiffs' fourth amended complaint. Defendant Illinois Bell Telephone Company d/b/a Ameritech Illinois ("Ameritech") has filed a motion for summary judgment as to Counts IV and V of plaintiffs' fourth amended complaint. Ameritech has also moved for summary judgment as to the City's cross-claim against Ameritech.

 I. Factual Background

 On or about May 31, 1990, the City and Ameritech entered into a contract for an enhanced 9-1-1 emergency service plan to be provided by Ameritech. Such a service plan would enable individuals residing within the City to access the City's emergency rescue services by dialing "9-1-1." See Ameritech's Motion for Summary Judgment, Exh. A (contract); City's 12(M) Stmt., P 14. After entering into this contract, Ameritech provided the City with lists of the telephone numbers and addresses of residences located within the City's municipal borders. The City was to designate the addresses that were to receive 9-1-1 service. Ameritech's 12(M) Stmt., PP 24-31. Although plaintiffs' decedent, Patrick E. Harrell, and his wife had lived within the City's municipal borders for more than twenty years, their telephone number and residence address were not designated to receive 9-1-1 service. Ameritech's 12(M) Stmt., PP 33-34; Plaintiffs' 12(N) Stmt., P 5. Neither Ameritech nor the City corrected this omission, despite having actual or constructive knowledge of it. Ameritech's 12(M) Stmt., PP 38-42.

 In December 1991, the City began to provide dispatching and enhanced 9-1-1 services for calls it received from residents of the City. To help finance the costs of the enhanced 9-1-1 plan, Ameritech imposed a $ 1 monthly surcharge on the City's residents, including plaintiffs' decedent. Despite paying the 9-1-1 monthly surcharge, plaintiffs' decedent and his wife did not receive 9-1-1 service because their residence address and telephone number had not been included in Ameritech's master list of City residents that were to receive 9-1-1 service. Plaintiffs' 12(N) Stmt., PP 3, 5. On July 11, 1993, plaintiffs' decedent suffered a coronary arrest at his home. City's 12(M) Stmt., P 7. Family members of the decedent, as well as a neighbor, placed several calls to the City requesting an ambulance be dispatched to the Harrell home. City's 12(M) Stmt., PP 15-19. The City's dispatcher, however, hesitated in responding to the first of these calls while attempting to ascertain whether the Harrells lived within the City's service boundaries. City's 12(M) Stmt., P 22. Though ambulances from neighboring municipalities ultimately arrived at the Harrell home and transported Patrick Harrell to the hospital, he died later that day. City's 12(M) Stmt., P 30.

 Plaintiffs have filed a five-count fourth amended complaint against the City and Ameritech. The City and Ameritech have filed cross-claims against each other. Counts I, II, and III of plaintiffs' fourth amended complaint are directed solely against the City. Count I is a wrongful death action; Count II is for loss of consortium; Count III is brought pursuant to 42 U.S.C. § 1983. Counts IV and V are directed solely against Ameritech. Count IV is a wrongful death action; Count V is a claim for loss of consortium. The City's motion to dismiss Count III of plaintiffs' fourth amended complaint was denied on January 29, 1996. Ameritech's motion to dismiss Counts IV and V of the plaintiffs' fourth amended complaint, as well as its motion to dismiss the City's cross-claim, was denied on February 1, 1996. After extensive discovery, the City and Ameritech have each moved for summary judgment on the underlying complaint. Ameritech has also moved for summary judgment as to the City's cross-claim.

 II. Standards

 Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c) ; Cox v. Acme Health Serv., Inc., 55 F.3d 1304, 1308 (7th Cir. 1995). A genuine issue of material fact exists for trial when, in viewing the record and all reasonable inferences drawn from it in a light most favorable to the non-moving party, a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995). The movant has the burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). If the movant satisfies this burden, the non-movant must set forth specific facts that demonstrate the existence of a genuine issue for trial. Fed. R. Civ. P. 56(e) ; Celotex, 477 U.S. at 324, 106 S. Ct. at 2553. Rule 56(c) mandates the entry of summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S. Ct. at 2552-53; Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). A scintilla of evidence in support of the non-moving party's position is not sufficient to oppose successfully a summary judgment motion; "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 250, 106 S. Ct. at 2511.

 III. Discussion

 A. City's Motion for Summary Judgment as to Plaintiffs' Claims

 1. Count I and Count II

 Count I of plaintiffs' fourth amended complaint asserts a claim for wrongful death. Count II of plaintiffs' fourth amended complaint asserts a claim for loss of consortium. In its motion for summary judgment, the City argues that Illinois' Local Governmental and Governmental Employees Tort Immunity Act, 745 ILL. COMP. STAT. ANN. 10/1-101 et seq. (West 1993 & Supp. 1996) [hereinafter Tort Immunity Act], grants the City absolute immunity from liability under both of these counts. Specifically, the City cites § 5-101 of the Tort Immunity Act, which provides:

 
Neither a local public entity nor a public employee is liable for failure to establish a fire department or otherwise to provide fire protection, rescue or other emergency service.
 
As used in this Article, "rescue services" includes, but is not limited to, the operation of an ambulance as defined in the Emergency Medical Services (EMS) Systems Act.

 Tort Immunity Act, § 5-101 (emphasis added). Defendant argues that the highlighted language grants immunity to local public entities in regard to their failure to deliver rescue or emergency services in specific instances, while the phrase preceding that language grants immunity to local public entities in regard to their failure to establish an agency that provides such services. See City's Memorandum in Support of Summary Judgment, at 5 [hereinafter City's Mem.]. However, this court is not convinced that defendant's reading of § 5-101 is accurate. Both phrases must be read in light of § 5-101's title: "Establishment of fire department--fire protection--Rescue or other emergency services." Tort Immunity Act, § 5-101 (section title). The topic of § 5-101, "establishment," indicates that the section's provisions should be read as governing a local public entity's provision of services in general, and not that entity's provision of services to particular individuals in specific instances. Read in this light, the first phrase of § 5-101 grants immunity to local public entities that choose not to establish their own fire departments; the second phrase refers to situations in which local public entities have also chosen not to provide for the delivery of fire, rescue, or emergency services by other means, such as contracting with neighboring public entities or private agencies. Under this interpretation, "provide" refers to the furnishing of rescue or emergency services in general, and not to the more specific idea of ...


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