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09/26/97 KATHERINE CHICZEWSKI v. EMERGENCY

September 26, 1997

KATHERINE CHICZEWSKI, A MINOR, BY AND THROUGH HER NEXT FRIEND, LINDA CHICZEWSKI; LINDA CHICZEWSKI, INDIV.; AND JOSEPH CHICZEWSKI, INDIV., PLAINTIFFS-APPELLANTS,
v.
EMERGENCY TELEPHONE SYSTEM BOARD OF DU PAGE COUNTY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court Du Page County. No. 93--L--1319. Honorable Hollis L. Webster, Judge, Presiding.

Released for Publication October 24, 1997.

The Honorable Justice Hutchinson delivered the opinion of the court. Inglis and McLAREN, JJ., concur.

The opinion of the court was delivered by: Hutchinson

The Honorable Justice HUTCHINSON delivered the opinion of the court:

Plaintiffs, Katherine, Linda, and Joseph Chiczewski, appeal from the trial court's order granting summary judgment in favor of defendant, the Emergency Telephone System Board of Du Page County. Plaintiffs argue that the trial court erred in finding defendant to be a public agency and erred in finding insufficient evidence of willful and wanton misconduct by defendant. We affirm.

Defendant entered into a contract with Illinois Bell in 1989 to provide enhanced 911 service in Du Page County pursuant to the Emergency Telephone System Act (the Act) (50 ILCS 750/0.01 et seq. (West 1994)). Defendant began collecting a surcharge of $0.50 per month per access line to support this service. On September 5, 1991, the Illinois Commerce Commission (ICC) gave defendant the authority to operate the enhanced 911 service. Defendant was instructed by the ICC to enter into "Joint Powers Agreements" with various public entities that were part of other 911 systems but whose boundaries were contiguous.

The City of Naperville (Naperville) is an adjacent "public agency" with whom defendant was instructed to enter into an agreement, but the city opted out of the agreement pursuant to section 15.3 of the Act (50 ILCS 750/15.3 (West 1994)). The residents of Naperville were protected under a separate emergency telephone system. However, this system did not cover unincorporated areas outside of Naperville. Defendant was ordered by the ICC on September 25, 1991, to cover these areas with its enhanced 911 system.

Plaintiffs reside in an unincorporated area outside of Naperville that should have been covered by defendant's enhanced 911 system. On July 13, 1992, an intruder entered plaintiffs' home and severely injured plaintiff Katherine, the minor child of Linda and Joseph. Plaintiff Linda discovered her injured daughter and placed a 911 emergency call at approximately 4 a.m. The call was routed to Naperville's system instead of defendant's system. The 911 operator in Naperville informed plaintiff Linda that she could not dispatch emergency services to areas outside of Naperville, but she immediately transferred the call to the Du Page County sheriff's office. The police were at plaintiffs' home within 11 minutes of the emergency call, and paramedics arrived a few minutes later. Plaintiffs did not wait for emergency services but instead drove plaintiff Katherine to a hospital before help arrived.

Plaintiffs filed suit against various parties, including defendant. On May 3, 1994, plaintiffs filed their second amended complaint, the complaint relevant to this appeal, alleging that defendant's actions amounted to willful and wanton misconduct. Plaintiffs alleged that defendant was a "public agency" in this complaint but have since contended that defendant is not a public agency. Defendant filed its motion for summary judgment. On September 26, 1996, the trial court granted defendant's motion. The trial court found that defendant was a public agency and that plaintiffs had failed to produce any evidence to support their claim and granted defendant's motion for summary judgment. Plaintiffs timely appealed.

Plaintiffs raise two issues on appeal: whether the Act applies to defendant for purposes of this lawsuit; and whether the alleged actions of defendant constitute willful and wanton misconduct.

Plaintiffs assert that the trial court erred in applying the 1996 amendments of the Act to defendant. The Act now provides:

"No public agency, public safety agency, emergency telephone system board, or unit of local government assuming the duties of an emergency telephone system board, nor any officer, agent or employee of any public agency, public safety agency, emergency telephone system board, or unit of local government assuming the duties of an emergency telephone system board, shall be liable for any civil damages as a result of any act or omission, except wilful or wanton misconduct, in connection with developing, adopting, operating or implementing any plan or system required by this Act." 50 ILCS 750/15.1 (West Supp. 1995).

This amendment alters the previous statute by specifically mentioning emergency telephone boards and units of local government acting as such boards. Plaintiffs assert that this is a substantial change to the statute and should not be applied retroactively. Defendant argues that the change in the statute is merely the clarification of existing law and should be applied retroactively.

A material change to a statute is presumed to be an alteration of the original statute. People v. Woodard, 175 Ill. 2d 435, 449, 222 Ill. Dec. 401, 677 N.E.2d 935 (1997). If, however, the circumstances surrounding the enactment of the amendment indicate the intention to interpret the statute, then this presumption is rebutted. Friedman v. Krupp Corp., 282 Ill. App. 3d 436, 444, 217 Ill. Dec. 957, 668 N.E.2d 142 (1996). "An amendment of an unambiguous statute indicates a purpose to change the law, while no such purpose is indicated by the mere fact of an amendment of an ambiguous provision." O'Connor v. A&P Enterprises, 81 Ill. 2d 260, 271, 41 Ill. Dec. 782, 408 N.E.2d 204 (1980). "It is proper for a court to consider a subsequent amendment to a ...


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