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American National Bank & Trust Co. v. City of Chicago

August 10, 2000

AMERICAN NATIONAL BANK & TRUST COMPANY, SPECIAL ADM'R FOR THE ESTATE OF RENEE KAZMIEROWSKI, DECEASED,
APPELLANT, V. THE CITY OF CHICAGO ET AL., APPELLEES.



The opinion of the court was delivered by: Justice Miller

Agenda 14-November 1999.

The plaintiff, American National Bank and Trust Company, as special administrator of the estate of Renee Kazmierowski, brought the present action in the circuit court of Cook County against the defendants, the City of Chicago and two of its paramedics, John Glennon and Kevin T. O'Malley. Raising several theories of liability, the plaintiff sought recovery for the defendants' alleged failure to respond properly to an emergency call by the decedent for medical assistance. The circuit court granted the defendants' motion for dismissal of the complaint. The appellate court affirmed that judgment in an unpublished order. No. 1-97-1212 (unpublished order under Supreme Court Rule 23). We allowed the plaintiff's petition for leave to appeal (177 Ill. 2d R. 315(a)), and we now affirm in part and reverse in part the judgment of the appellate court and remand the cause to the circuit court for further proceedings.

The following factual summary is derived from the allegations in the plaintiff's amended complaint and from the information contained in its accompanying exhibits, which include a transcript of the decedent's emergency call and the paramedics' report. At around 7:55 a.m. on April 24, 1995, the decedent, Renee Kazmierowski, suffered an asthma attack while at home at her apartment in Chicago. She called 911 to request help. She provided her address and telephone number and said that she lived on the third floor of the building. The 911 operator replied that paramedics were on the way; the operator did not attempt to keep the decedent on the telephone while the paramedics were responding to the call.

Two paramedics, John Glennon and Kevin T. O'Malley, were directed to respond to what they were told was a "heart attack" victim. They were allowed into the decedent's apartment building by a neighbor in the building and went to the third floor. They asked the neighbor whether he had summoned help, and the neighbor replied that he had not. The paramedics then knocked on the door of the only other apartment located on the third floor, but they received no response. The neighbor escorted a firefighter, who had also responded to the call, through his apartment to the back of the building. The firefighter knocked on the back door, but he received no response and was not able to see into the apartment. While the firefighter was checking the back of the building, the paramedics called the dispatcher, who confirmed that they were at the correct address. In response to the paramedics' questions, the dispatcher also said that the caller had not provided her age, and that an attempt to return the call had reached an answering machine. The neighbor told the paramedics that the apartment was occupied by a young couple, who did not appear to have any medical problems. The paramedics concluded that they were not needed at the address in question, and they left the scene. That afternoon, the same paramedics returned to the apartment, again in response to an emergency call. On this occasion, a man let the paramedics into the apartment, and they found the decedent lying dead on the floor.

The plaintiff's amended complaint comprised a total of 11 counts. These alleged negligence and willful and wanton misconduct, and sought recovery from the City and the two paramedics under the Wrongful Death Act and the Survival Act. An additional count sought to impose liability on the City under a federal civil rights provision. The complaint alleged that the 911 operator acted negligently, willfully, and wantonly in failing to keep decedent on the phone while the paramedics responded. The complaint further alleged that the front door of decedent's apartment was unlocked when the paramedics responded to her call, and that the paramedics acted negligently, willfully, and wantonly in failing to try the unlocked door and enter the apartment.

The defendants moved to dismiss the amended complaint under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1994)). The defendants argued that they were immune from liability for the decedent's death under the Emergency Medical Services (EMS) Systems Act (EMS Act) (210 ILCS 50/1 through 33 (West 1994)). The defendants further contended that the plaintiff had failed to adequately allege that they owed the decedent a special duty of care or engaged in willful and wanton misconduct. The circuit court granted the defendants' motion, ruling that the defendants were immune from liability under the EMS Act and that the plaintiff had failed to adequately allege a special duty or willful and wanton misconduct.

The appellate court affirmed the circuit court judgment in an unpublished order. No. 1-97-1212 (1998) (unpublished order under Supreme Court Rule 23). The appellate court rejected the defendants' contention, raised for the first time on appeal, that section 5-101 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/5-101 (West 1994)) granted immunity to the defendants. The appellate court concluded, however, that section 17 of the EMS Act (210 ILCS 50/17 (West 1994)) immunized the defendants from liability for the decedent's death. The appellate court also held that the plaintiff had failed to adequately allege that the defendants owed the decedent a special duty or that their conduct was willful and wanton. We allowed the plaintiff's petition for leave to appeal. 177 Ill. 2d R. 315. We later granted leave to the Illinois Trial Lawyers Association and to the Illinois Governmental Association of Pools and the Illinois Municipal League to submit briefs as amici curiae. 155 Ill. 2d R. 345. For the reasons that follow, we now affirm in part and reverse in part the judgment of the appellate court, and we remand the cause to the circuit court for further proceedings.

Before this court, the plaintiff does not challenge the dismissal of counts I, II, and XI of the amended complaint; counts I and II charged the City with negligence, and count XI alleged a violation of the decedent's civil rights. Among the counts that remain, counts III and IV allege willful and wanton misconduct by the City for its failure to implement and enforce proper training for paramedics and for its failure to train and supervise the paramedics; count V seeks to recover from the City for its vicarious liability for the willful and wanton misconduct of the two paramedics in this case. Counts VI, VII, VIII, and IX are directed against paramedics Glennon and O'Malley; these counts allege negligence by the paramedics and seek recovery under the Wrongful Death Act and the Survival Act. The final count remaining for our consideration is count X, which alleges willful and wanton misconduct by the two paramedics.

A motion to dismiss brought pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1994)) attacks the legal sufficiency of a complaint. In ruling on a section 2-615 motion, a court must accept as true all well-pleaded facts in the complaint and all reasonable inferences that may be drawn from the complaint. The court is to interpret the allegations of the complaint in the light most favorable to the plaintiff. A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved under the pleadings that will entitle the plaintiff to recover. McGrath v. Fahey, 126 Ill. 2d 78, 90 (1988).

The plaintiff initially argues that the defendants' section 2-615 motion to dismiss should not have been considered by the trial court because portions of the motion instead should have been included in a motion brought under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1994)), which permits the dismissal of an action because of certain affirmative defects or defenses. We believe that the plaintiff has waived this objection, however, for the plaintiff failed to raise it in the circuit court. See Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 536 (1996). We now turn to the merits of the present appeal.

In support of the appellate court's and circuit court's rulings, the defendants contend that the present action is barred by the immunity provision found in section 5-101 of the Tort Immunity Act (745 ILCS 10/5-101 (West 1994)). The defendants did not raise this contention in the circuit court, but they argued the point before the appellate court in support of the circuit judge's favorable ruling. The appellate court disagreed with the defendants, who renew the contention before this court, arguing that section 5-101 of the Tort Immunity Act applies to this case and grants them immunity in these circumstances. Section 5-101 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." 745 ILCS 10/5-101 (West 1994).

The appellate court ruled that section 5-101 provides immunity "only where a public entity chooses not to provide any fire protection, rescue or emergency services at all, and not where a public entity offers these services in general but fails to provide them in a particular case." The defendants challenge the appellate court's interpretation, arguing that the statute immunizes a local public entity that establishes a ...


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