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02/05/97 JAMES T. MORAN v. CITY CHICAGO

February 5, 1997

JAMES T. MORAN, PLAINTIFF-APPELLANT,
v.
CITY OF CHICAGO, A MUNICIPAL CORPORATION, AND SGT. PATRICK GROGAN (A/K/A BROGAN), STAR NO. 812, INDIVIDUALLY AND IN HIS CAPACITY AS A POLICE OFFICER OF THE CITY OF CHICAGO, JOHN DOE, I, INDIVIDUALLY AND IN HIS CAPACITY AS A POLICE OFFICER OF THE CITY OF CHICAGO, JOHN DOE, II, INDIVIDUALLY AND IN HIS CAPACITY AS A POLICE OFFICER OF THE CITY OF CHICAGO, JOHN DOE, III, INDIVIDUALLY AND IN HIS CAPACITY AS A POLICE OFFICER OF THE CITY OF CHICAGO, JOHN DOE, IV, INDIVIDUALLY AND IN HIS CAPACITY AS A POLICE OFFICER OF THE CITY OF CHICAGO, JOHN DOE, V, INDIVIDUALLY AND IN HIS CAPACITY AS A POLICE OFFICER OF THE CITY OF CHICAGO, DEFENDANTS-APPELLEES, AND LEROY BAUMAN, INDIVIDUALLY AND IN HIS CAPACITY AS A POLICE OFFICER OF THE CITY OF CHICAGO, STAR NO. 7613, DEFENDANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE KENNETH L. GILLIS, JUDGE PRESIDING.

Rehearing Denied March 26, 1997. Released for Publication March 31, 1997.

The Honorable Justice Gordon Delivered The Opinion OF The Court: Cousins, Jr., P.j. and McNULTY, J., concur.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:

Plaintiff, James T. Moran, brings this appeal pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), from the dismissal of counts IV through VI of his complaint against defendants, Sergeant Patrick Brogan, *fn1 the City of Chicago, and five John Doe police officers. Plaintiff's complaint sought to recover for injuries he sustained when Leroy Bauman *fn2 attacked him while he was being questioned by Brogan and the John Doe officers after they had broken up a physical altercation between the plaintiff and Bauman. Count IV alleged that the defendants owed the plaintiff a special duty and that they had acted willfully and wantonly in failing to protect the plaintiff from Bauman. Counts V and VI alleged that Brogan and the John Doe defendants had deprived the plaintiff of his federal civil rights, specifically, liberty/personal security and access to the courts, guaranteed under 42 U.S.C. § 1983 (1990). Pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1994)), Brogan and the City of Chicago moved to dismiss plaintiff's tort claims encompassed in count IV based upon the immunity provisions of sections 4-102, 2-204, 2-202, 2-109 *fn3 of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (745 ILCS 10/4-102, 2-204, 2-202, 2-109 (West 1994)). In a separate motion, Brogan moved to dismiss counts V and VI pursuant to section 2-615 of the Code of Civil procedure (735 ILCS 5/2-615 (West 1994)) for failure to state a cause of action. The trial court granted both motions and dismissed counts IV, V and VI.

The issues raised on appeal are: (1) whether count IV of the complaint alleged sufficient facts to establish that Brogan and the City of Chicago (hereinafter referred to as the "defendants") owed the plaintiff a special duty; (2) whether count IV alleged sufficient facts of willful and wanton conduct; (3) whether count V stated a cause of action for violation of civil rights under 42 U.S.C. § 1983 based upon allegations that the defendants deprived the plaintiff of his liberty and personal security rights; and (4) whether count VI stated a cause of action for violation of 42 U.S.C. § 1983 based upon allegations that the plaintiff was denied his constitutional right of access to the courts.

A motion to dismiss a complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1994)) attacks the legal sufficiency of the complaint, whereas a section 2-619 motion raises defects, defenses or other affirmative matter which appear on the face of the complaint or are established by external submissions which act to defeat the plaintiff's claim (735 ILCS 5/2-619 (West 1994)). See Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 639 N.E.2d 1282, 203 Ill. Dec. 463 (1994); Lawson v. City of Chicago, 278 Ill. App. 3d 628, 662 N.E.2d 1377, 215 Ill. Dec. 237 (1996). While statutory immunity is affirmative matter that can be raised in a section 2-619 motion, it is better suited as support for a section 2-615 pleading-based motion that challenges the legal sufficiency of the plaintiff's complaint. See Calloway v. Kinkelaar, 168 Ill. 2d 312, 331-32, 659 N.E.2d 1322, 1331-32, 213 Ill. Dec. 675 (1995) (Freeman, J., specially concurring); Lawson, 278 Ill. App. 3d 628, 662 N.E.2d 1377, 215 Ill. Dec. 237. Here, since the defendants' section 2-619 motion did not raise any new factual matter, the question on appeal is the same whether defendants' motion is considered to be a section 2-615 or a section 2-619 motion; that is, whether under the allegations as pleaded in the plaintiff's complaint the defendants were immune from liability as a matter of law. Calloway, 168 Ill. 2d at 332, 659 N.E.2d at 1332. See Lawson, 278 Ill. App. 3d 628, 662 N.E.2d 1377, 215 Ill. Dec. 237; Thames v. Board of Education, 269 Ill. App. 3d 210, 645 N.E.2d 445, 206 Ill. Dec. 440 (1994).

I. Special Duty

Pursuant to the common law public duty rule, municipalities and law enforcement officials owe no duty to protect individual citizens. Leone v. City of Chicago, 156 Ill. 2d 33, 619 N.E.2d 119, 188 Ill. Dec. 755 (1993); Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 565 N.E.2d 654, 152 Ill. Dec. 121 (1990) overruled in part on other grounds, McCuen v. Peoria Park District, 163 Ill. 2d 125, 643 N.E.2d 778, 205 Ill. Dec. 487 (1994). Similarly, under the Tort Immunity Act, a public employee is not liable for acts or omissions occurring within the scope of his employment (745 ILCS 10/2-204 (West 1994)); and the public entity is not liable when its employee is not liable (745 ILCS 10/2-109 (West 1994)). With respect to police protection, the Tort Immunity Act provides that neither a public entity nor its employee is liable for failure to provide police protection service or adequate police protection service or for failure to prevent the commission of crime. 745 ILCS 10/4-102 (West 1994). However, with respect to the latter, the Act further Provides that, while police officers are not liable for injuries caused by acts or omissions in the execution and enforcement of the law, they are liable if their conduct is willful and wanton. 745 ILCS 10/2-202 (West 1994).

The special duty doctrine is an exception to the common law public duty rule and to the Tort Immunity Act. Calloway, 168 Ill. 2d 312, 659 N.E.2d 1322, 213 Ill. Dec. 675; Leone, 156 Ill. 2d 33, 619 N.E.2d 119, 188 Ill. Dec. 755. But see Calloway, 168 Ill. 2d at 331, 659 N.E.2d at 1331 (Freeman, J., specially concurring); Leone, 156 Ill. 2d at 43, 619 N.E.2d at 124 (Bilandic, J., dissenting); and Leone, 156 Ill. 2d at 49, 619 N.E.2d at 127 (Heiple, J., dissenting) (challenging notion that special duty doctrine is exception to Tort Immunity Act). *fn4 In accordance with that exception, if circumstances arise whereby care or custody is exercised over a specific individual by a municipality or public official so that an affirmative duty to exercise care on behalf of that individual comes into existence, the failure to carry out that duty in a non-negligent manner is actionable. Thames, 269 Ill. App. 3d 210, 645 N.E.2d 445, 206 Ill. Dec. 440. To invoke this special duty exception, the plaintiff must prove the following four elements: (1) unique awareness of a particular danger or risk to which the plaintiff was exposed; (2) specific acts or omissions; (3) specific acts that are affirmative or willful in nature; and (4) injury to the plaintiff while under the direct and immediate control of municipal employees or agents. E.g., Doe v. Calumet City, 161 Ill. 2d 374, 641 N.E.2d 498, 204 Ill. Dec. 274 (1994); Leone, 156 Ill. 2d 33, 619 N.E.2d 119, 188 Ill. Dec. 755; Burdinie, 139 Ill. 2d 501, 565 N.E.2d 654, 152 Ill. Dec. 121; Lawson, 278 Ill. App. 3d 628, 662 N.E.2d 1377, 215 Ill. Dec. 237. Here, as will be discussed below, plaintiff's complaint does not allege sufficient facts to establish the fourth element of the special duty exception, namely, direct and immediate control.

Generally, the control element is established by allegations that the defendants initiated the circumstances which created the dangerous condition or that the defendants called the plaintiff into a position of peril. Doe, 161 Ill. 2d 374, 641 N.E.2d 498, 204 Ill. Dec. 274; Burdinie, 139 Ill. 2d 501, 565 N.E.2d 654, 152 Ill. Dec. 121. The control element has been found to exist where police officers ordered plaintiffs to move to or took them to certain areas of danger. E.g., Leone, 156 Ill. 2d 33, 619 N.E.2d 119, 188 Ill. Dec. 755 (ordering motorist to halt in traffic and directing her to stand in the street); Brooks v. Lundeen, 49 Ill. App. 3d 1, 364 N.E.2d 423, 7 Ill. Dec. 262 (1977) (ordering motorist to park next to road block when speeding motorist approaching); Gardner, 71 Ill. App. 2d 373, 219 N.E.2d 147 (bringing witness to side of highway to identify four suspects).

In the instant case, plaintiff's complaint alleged that at approximately 3:45 a.m., on August 9, 1989, Leroy Bauman became involved in a physical altercation with a Chicago police officer in a tavern called the Whistle Stop Inn; that the plaintiff, who was an off-duty Cook County deputy sheriff, entered the Whistle Stop Inn to assist the police officer; that physical contact was made between Bauman and the plaintiff; and that the altercation continued on the public sidewalk outside the inn. The complaint further alleged that Sergeant Brogan and the John Doe defendants arrived, intervened, separated plaintiff and Bauman, and "surrounded and detained" the plaintiff to investigate and determine whether to arrest the plaintiff for battery. The complaint stated that, while the plaintiff was being "interrogated," Bauman shouted and screamed, demanded that the plaintiff be arrested, threatened to physically attack the plaintiff, and thereupon violently punched him in the face and knocked him to the ground causing injuries to him.

Count IV of plaintiff's complaint purports to raise a special duty and willful and wanton conduct. It alleges that the City, Brogan and the John Doe defendants had actual knowledge that Bauman had violent propensities, that Bauman was intoxicated, and that Bauman was screaming and threatening the plaintiff with physical harm. It further alleges that, while possessed of that knowledge, the defendants "detained and interrogated the Plaintiff in such proximity to *** Bauman that they put the plaintiff in a position where he was unable to visually monitor Bauman's conduct and where the Plaintiff was unable to physically defend himself from the previously threatened attacks of Bauman." It further alleged that the defendants acted willfully and wantonly by failing to take the necessary steps to physically restrain Bauman and to prevent him from gaining access to the plaintiff and, as a result of those failures, the plaintiff sustained injuries.

The plaintiff argues that his allegations establish that the defendants had direct and immediate control based on the fact that they surrounded, detained and questioned him. The defendants urge, on the other hand, that the control element is absent because the plaintiff has not alleged that they initiated the circumstances which created the condition of peril. They argue that the condition of peril, namely, the physical altercation and hostility between Bauman and the plaintiff, existed before they arrived on the scene. See Doe, 161 ...


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