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Board of Education of Indian v. DU Page County Election Commission

July 15, 2003


Appeal from the Circuit Court of Du Page County. No. 01-L-1016 Honorable John T. Elsner, Judge, Presiding.

The opinion of the court was delivered by: Justice Grometer


Plaintiff, Board of Education of Indian Prairie School District No. 204 (Board), appeals an order of the circuit court of Du Page County dismissing its complaint against defendants, Du Page County Election Commission (Commission), Dean Westrom, Jeanne McNamara, and Charlotte Mushow. Westrom, McNamara, and Mushow are election commissioners and are sued solely in their official capacities. For the reasons that follow, we reverse and remand this cause for further proceedings.


Plaintiff planned to construct a new elementary school and two new middle schools, as well as make additions to some existing school buildings. In order to fund these projects, plaintiff sought authority to issue bonds in the amount of $88,800,000 and increase property taxes from 3.04% to 3.74%. It enacted resolutions directing the Commission to, inter alia, publish notice of the election at least 10 days, but no more than 30 days, prior to the election as provided for in the Election Code (Code) (10 ILCS 5/12--5 (West 2000)). Indian Prairie School District stretches through two counties. The Will County Election Commission published notice as requested; however, defendants did not publish notice until five days before the election, on February 22, 2001, and February 23, 2001. The election was held on February 27, 2001. Both measures received a majority of the votes.

Plaintiff discovered the Commission's error in May 2001. As a result, plaintiff's ability to secure necessary funds for its construction projects was jeopardized. Plaintiff thus sought and obtained corrective legislation from the legislature. On June 7, 2001, the Governor signed into effect an act that validated the election. Plaintiff spent $55,870 securing this legislation.

In the action below, plaintiff sought to recoup these expenses. The trial court dismissed plaintiff's complaint pursuant to section 2--615 of the Civil Practice Law (735 ILCS 5/2--615 (West 2002)), articulating two bases for its decision. First, the trial court concluded that section 12--5 of the Code (10 ILCS 5/12--5 (West 2000)) did not create a duty on the part of the Commission that ran to a private party. Second, the court found that, since there had never been an action filed to void the results of the referenda, plaintiff suffered no damages. As there were no damages, the court reasoned, any amounts spent securing corrective legislation were not spent in mitigation of damages. Plaintiff then filed this timely appeal.


Plaintiff contends that the trial court erred in dismissing its complaint. Plaintiff first argues that, because it had an interest distinct from that of the public as a whole, the Commission owed it a duty under the Code. Second, plaintiff contends that whether any damages were proximately caused by defendants' actions is a question of fact. Defendants contest both issues and additionally argue that, even if plaintiff is correct on these two points, any duty they owed was breached only if their conduct was willful. Defendants then argue that plaintiff did not allege that their failure to publish timely notice was willful.

Because this cause comes to us following a dismissal pursuant to section 2--615 of the Civil Practice Law (735 ILCS 5/2--615 (West 2002)), our review is de novo. Safeway Insurance Co. v. Daddono, 334 Ill. App. 3d 215, 218 (2002). All well-pleaded facts in plaintiff's complaint and all reasonable inferences capable of being drawn therefrom must be taken as true, and the allegation must be viewed in the light most favorable to plaintiff. Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 186 Ill. 2d 472, 491 (1999). The ultimate question is, of course, whether the complaint states a cause of action, and the complaint should not be dismissed unless it is clear that plaintiff cannot prove any set of facts that would warrant relief. Board of Directors of Bloomfield Club Recreation Ass'n v. Hoffman Group, Inc., 186 Ill. 2d 419, 424 (1999). Furthermore, the existence of a duty raises a question of law. Ziemba v. Mierzwa, 142 Ill. 2d 42, 47 (1991).

Finally, before turning to the particular issues raised by the parties, we note that defendants repeatedly quote plaintiff's pleadings in another case filed in Will County. Defendants call these quotations admissions. Defendants do not, however, attempt to establish the elements of judicial estoppel (see People v. Coffin, 305 Ill. App. 3d 595, 598 (1999)) or otherwise explain why plaintiffs should be bound by arguments made in a different case. Moreover, we note that, even within the context of a single case, pleading in the alternative is permissible. 735 ILCS 5/2-613(b) (West 2002). Accordingly, we attribute no weight to these quotations.

A. Duty

The trial court dismissed plaintiff's complaint, in part, because it believed that the Code established no duty to plaintiff on defendants' part. In its oral ruling, the trial court stated that it "was unable to find a single recorded case in the history of Illinois where the negligence in following a statute gave rise to a cause of -- a duty owed to a private party." Accordingly, the court determined that no duty was owed to plaintiff. We disagree. The principle that the violation of a statute can form the basis for a negligence action is well established in this state. See, e.g., Yates v. Shackelford, 336 Ill. App. 3d 796, 802 (2002); Illinois Bell Telephone Co. v. Plote, Inc., 334 Ill. App. 3d 796, 805 (2002); Allstate Insurance Co. v. Winnebago County Fair Ass'n, Inc., 131 Ill. App. 3d 225, 232 (1985).

When dealing with the obligations of a public entity, special considerations apply. A private cause of action may not be based upon a statute if the duty imposed runs to the public generally. Arizzi v. City of Chicago, 201 Ill. App. 3d 368, 371 (1990). Instead, for a private action to lie, the entity must owe a duty to the plaintiff distinct from any duty owed to the public as a whole. O'Fallon Development Co. v. City of O'Fallon, 43 Ill. App. 3d 348, 358-59 (1976). Moreover, since the abolition of sovereign immunity in this state (see Walker v. Forest Preserve District of Cook County, 27 Ill. 2d 538, 540 (1963)), the ratification of the Constitution of 1970, and the enactment of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1--101 et seq. (West 2000)), "governmental units are now liable in tort on the same basis as private tortfeasors unless a valid statute dealing with tort immunity imposes conditions upon that liability." ...

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