The opinion of the court was delivered by: Justice Burke
Appeal from the Circuit Court of Cook County. Honorable Gary L. Brownfield, judge Presiding.
Plaintiffs Manual Anthony Cadena, Larisa Cadena, Andres Cadena, and Marcella Garcia (Cadenas) and plaintiffs Dale Baikauskas and Christopher Baikauskas (Baikauskases) appeal from an order of the circuit court granting summary judgment in favor of defendant City of Chicago Heights (City) pursuant to sections 4--102 and 5--102 of the Illinois Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/4--102, 5--102 (West 1993)) in the Cadenas' and Baikauskases' actions against it based upon claims of negligence, wilful and wanton conduct, res ipsa loquitur, and strict liability under the ultrahazardous activity doctrine. On appeal, plaintiffs contend that the activities undertaken by the City during a Fourth of July fireworks display did not constitute police or fire protection services under sections 4--102 and 5--102, respectively, of the Tort Immunity Act and, therefore, the City was not immune from liability, and the City was engaged in an ultrahazardous activity in displaying fireworks, thereby also precluding any immunity under the Tort Immunity Act. For the reasons set forth below, we affirm.
On July 3, 1991, Chicago Fireworks Manufacturing Company, who is not a party to this appeal, conducted a Fourth of July fireworks display at Bloom Township High School in the City of Chicago Heights. The City's administrator, Enrico Doggett (Doggett), was in charge of coordinating all activities surrounding the fireworks display. Chicago Fireworks was responsible for putting on the display on July 3, 1991, and had been responsible for the display from 1976 to 1992. Doggett had been involved in the City's Fourth of July firewords event in his capacity as the City's administrator since 1975. Doggett's duties included ensuring that, because of the large crowds estimated at between 12,000 and 15,000, that the police were on the site for security and fire department personnel and emergency vehicles were on the site in case of an accident. Doggett was also in charge of overseeing food vendors, a petting zoo, rides for children in attendance, and entertainers. Doggett coordinated his activities with Joseph Piunti (Piunti), the chief of the City's fire department, Larry Heusman (Heusman), the chief of the paid-on-call division of the fire department, and the assistant chief of the police department. Doggett was further responsible for ensuring that the traffic department, which was a division of the police department, had barricades on the site. The barricades were set up by members of the paid-on-call division of the fire department. The procedures for setting up the fireworks display and the barricades had been essentially the same since Doggett began as the City's administrator in 1975, and "everyone knew where the barricades went, *** how it was supposed to be set up." According to Doggett, he was unaware of the procedures set out in the "National Fire Protection Association" safety guidelines, but assumed that either the fire protection officer or assistant chief of the fire department would have told him if there were any codes which had to be followed. On July 3, 1991, the "Fire Chief" wanted the western border of the barricades moved farther away from the ignition site of the fireworks display and Doggett agreed to the change.
Doggett also stated that after an accident during the 1975 fireworks display, which was held at the Bloom Township High School football field, the display was moved in 1976 to a large field at the high school where the display in 1991 was subsequently held. A perimeter was also established in 1976 and the perimeter remained basically the same from then on, with minor variations that were "sometimes made by *** [the owner of Chicago Fireworks], sometimes by [Doggett], sometimes by the fire chief." Neither Heusman nor Piunti were aware of any codes or regulations controlling the distance the barricades were to be placed from the ignition site of the fireworks display in 1991.
On July 3, 1991, it rained at approximately 6 p.m. and, while it was raining, workers from Chicago Fireworks placed tarps over the fireworks. During the fireworks display, one of the fireworks misfired and landed in the crowd which had gathered to view the display, injuring the Cadenas and Baikauskases. On July 9, the Cadenas filed a complaint against Chicago Fireworks, alleging that it was negligent based on Chicago Fireworks' act of firing fireworks in such a manner as to cause the fireworks to explode near the spectators, failure to properly protect the spectators, and failure to warn the spectators of the danger that portions of the fireworks would fall into the spectators.
On December 30, 1991, the Baikauskases filed a complaint against Chicago Fireworks and the City. Count I of the complaint alleged that Chicago Fireworks was negligent in permitting the fireworks to explode within the crowd of spectators, failing to adequately protect the spectators, and permitting the fireworks to be ignited in an unsafe condition; counts II and III alleged that the City was negligent and acted in a wilful and wanton manner in designating a spectator viewing area too close to the point of ignition of the fireworks display and in placing barricades too close to the ignition area of the fireworks display.
On February 6, 1992, the Cadenas filed a second amended complaint, adding the City as a defendant, and alleging, in count I, that the City and Chicago Fireworks were negligent in causing the fireworks to explode in the vicinity of the spectators, failing to protect the spectators from the ignited portions of the fireworks, failing to warn the spectators of the danger, permitting the fireworks to be ignited when wet, placing the barricades too close to the ignition area of the fireworks, and designating a spectator viewing area too close to the ignition area of the fireworks. Count II alleged that the City acted in a wilful and wanton manner with a reckless disregard for the safety of the spectators in designating a spectator viewing area too close to the ignition area of the fireworks, placing barricades too close to the ignition area of the fireworks, failing to warn spectators that ignited portions of the fireworks would or could fall into the spectator area and failing to properly protect the spectators from ignited portions of the fireworks. Count III alleged that the City and Chicago Fireworks were negligent and liable under the Family Expense Act for the same reasons as stated in count II. Count IV and V alleged that Chicago Fireworks was liable under strict liability and products liability, respectively, in using an unreasonably dangerous and defective firework. Count VI alleged that the City and Chicago Fireworks were negligent under a theory of res ipsa loquitur for the same reasons as stated in counts II and III. The remaining counts of the second amended complaint, VII through XXII, repeated counts I through VI for each individual Cadena plaintiff.
On February 11, 1992, the Baikauskases filed a motion to consolidate their case with the Cadenas' case, which the trial court granted. The City subsequently filed a motion to dismiss count II of the Baikauskases' complaint alleging negligence, and a motion to dismiss counts I, III, VI, VII, IX, XII, XIII, XIV, XVII, XVIII, XIX, and XXII of the Cadenas' second amended complaint pursuant to section 2--615 of the Civil Practice Act (Act) (735 ILCS 5/2--615 (West 1992)), arguing that it was immune from both the Baikauskases' and Cadenas' negligence claims pursuant to sections 3--106, 3--108 and 3--109 of the Tort Immunity Act (745 ILCS 10/3--106, 3--108, 3--109 (West 1993)), which provided immunity for injuries sustained on public property used for recreational purposes, failure to supervise activity of use of public property, and injuries sustained by any person who participated in a hazardous recreational activity, respectively.
In response to the City's motion to dismiss count II of their complaint, the Baikauskases argued that because the City was involved in a non-governmental function when it oversaw the fireworks display, it was not protected by the Tort Immunity Act. The Baikauskases further argued that because the City was engaged in an ultrahazardous activity in sponsoring the fireworks, it was strictly liable for any injuries caused by that activity.
In the City's reply to the Baikauskases' response to its motion to dismiss count II of their complaint, it argued that any distinction between governmental and non-governmental activities was irrelevant for purposes of the Tort Immunity Act. The City also argued that the Baikauskases' complaint failed to allege that the City was liable under an "ultrahazardous activity" theory; rather, their complaint merely alleged that the City was negligent, and engaged in wilful and wanton conduct.
During the pendency of plaintiffs' case in the trial court, another case arising from the same incident, McLellan v. Chicago Fireworks Manufacturing Co., No. 91 C 4295, was filed in the U.S. District Court for the Northern District of Illinois. The McLellan plaintiffs alleged that the City was liable to them based upon the grounds of negligence, res ipsa loquitur, and wilful and wanton misconduct. On September 21, 1994, the McLellan court granted the City's subsequent motion for summary judgment based on sections 4--102 and 5--102 of the Tort Immunity Act. In its order, the McLellan court, relying on Dockery v. Village of Steeleville, 200 Ill. App. 3d 926, 558 N.E.2d 449 (1990), stated: "The Dockery court reasoned that the crowd control and traffic management at the Steeleville Fourth of July celebration was a police function that has been recognized as an important part of police service. Accordingly, like the Village of Steeleville, the City of Chicago Heights 'is immune from liability for failure to provide adequate police protection or service.'
*** The reasoning of Dockery applies with equal force to the Chicago Heights fire department. Therefore, it too is immune from liability for failure to provide adequate fire protection and service.
Plaintiffs maintain that defendant's arguments are inapplicable because there is no immunity for injuries caused by an inherently and abnormally dangerous or ultrahazardous activity. In light of Dockery, we must summarily reject plaintiffs' argument. The Dockery court had the opportunity to hold that fireworks displays are intrinsically and inherently dangerous, and did not do so. We can go no further than Dockery. ***
Since all three counts of the plaintiffs' amended complaint as they relate to the City of Chicago Heights are concerned with inadequate police and fire services, the City is entitled to summary judgment in its favor and against plaintiffs on Counts 1 (Negligence), Count 2 (Res Ipsa Loquitur), and Count 3 (Wilful and Wanton Misconduct) of the 'Amended Complaint At Law.' " (Emphasis in original.)
On March 25, 1994, the Cadenas filed a response to the City's motion to dismiss counts I, II, III, VII, X, XV, XVII, XXII, and XXIV of their complaint, which were based on claims of negligence and wilful and wanton conduct, arguing that the Tort Immunity Act did not provide the City protection from negligence claims arising from its conduct. The Cadenas further argued that because a similar motion to dismiss filed by the City in McLellan had been denied by the federal court, the City's motion should also be denied in the present case. The Cadenas also adopted the arguments set forth in the Baikauskases' response to the City's motion to dismiss, i.e., that the City was involved in a non-governmental function when it oversaw the fireworks display and, therefore, was not protected by the Tort Immunity Act, and the City was engaged in an ultrahazardous activity in sponsoring the fireworks and, therefore, the City was strictly liable for any injuries and not protected under the Tort Immunity Act.
On November 9, 1994, the City filed a motion for summary judgment against the Cadenas and Baikauskases. The City argued that it was immune from liability pursuant to sections 4--102 and 5--102 of the Tort Immunity Act and, as a result, it could not be held liable for failure to provide police protection or fire protection. The City contended that the deposition testimony of Piunti, acting fire chief for the City, Heusman, the paid on-call fire chief for the City, and Doggett, the City's administrator, showed that the City was only providing police and fire protection services for crowd control, prevention of fire, and preparation for the possibility of fire or injuries to the spectators present. The City further argued that, under Dockery, the City was immune from liability for providing police and fire protection during the fireworks display. The City further argued that summary judgment should be granted to it based on the McLellan court's finding that the City was immune from liability to persons injured at the July 3, fireworks display pursuant to sections 4--102 and 5--102 of the Tort Immunity Act.
In response to the City's motion for summary judgment, the Cadenas argued that: the City was engaged in an ultrahazardous activity and was therefore strictly liable for any injuries caused by the fireworks display; the City was not immune from liability under the Tort Immunity Act because it arbitrarily designated an area for the crowd to be located and it voluntarily assumed a duty to protect the crowd from a "hazardous recreational activity"; the City was not immune from liability under sections 3--106 and 3--109 of the Tort Immunity Act, which provide immunity for injuries sustained on public property used for recreational purposes, and injuries sustained by any person who participated in a hazardous recreational activity, respectively; and "[t]he fact that the Federal court had decided a similar issue in a related case was completely unrelated and irrelevant to the case at bar." On the same day, the Baikauskases filed a response to the City's motion for summary judgment, adopting the Cadenas' response, and arguing that the City was not protected by governmental immunity because the City failed to raise governmental immunity in its answer and had admitted that it was not engaged in a governmental activity at the time of the accident.
In reply, the City contended that: Illinois case law did not support plaintiffs' argument that the use of fireworks was an ultrahazardous activity; it did not participate in any ultrahazardous activity because it merely sponsored the fireworks display; it had not predicated its motion for summary judgment on section 3--109 of the Tort Immunity Act and, therefore, the Cadenas' argument relating to that issue was meaningless; and pursuant to sections 4--102 and 5--102 of the Tort Immunity Act and the Dockery decision, it was immune from liability for any injuries caused by the fireworks display on July 3, 1991.
After a hearing on the City's motion for summary judgment, the trial court granted the motion, stating:
"The city seeks summary judgment on the ground that it is immune from liability for failure to provide adequate police and fire protection under sections 4--102 and 5--102 of the Illinois Tort Immunity Act.
Section 4--102 provides immunity for a local public entity's failure to provide adequate ...