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Fender v. Town of Cicero

March 16, 2004

[5] SANDRA FENDER AND FRANK FENDER, INDIV. AND AS PARENTS AND NEXT FRIEND OF MATTY FENDER, A MINOR, PLAINTIFFS-APPELLANTS,
v.
THE TOWN OF CICERO, A MUNICIPAL CORPORATION; JOHN DOE(S), THE TOWN OF CICERO POLICE OFFICERS; WALDEMAR A. CRUZ, INDIV. AND AS AGENT AND/OR EMPLOYEE OF THE TOWN OF CICERO; LOUIS G. MAZZA, INDIV., AND AS AGENT AND/OR EMPLOYEE OF THE TOWN OF CICERO; JERRY A. SIMEK, INDIV., AND AS AGENT AND/OR EMPLOYEE OF THE TOWN OF CICERO, DEFENDANTS-APPELLEES.
COLLEEN M. POULL, AS SPECIAL ADM'R OF THE ESTATES OF KEVIN CHRISTOPHER POULL, CHARISSA MARIE POULL, SHAWN ANTHONY POULL, WILLIAM JOHN POULL, AND STEPHANIE MARIE MARTIN, DECEASED MINORS, PLAINTIFF-APPELLANT,
v.
THE TOWN OF CICERO, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE



[6] Appeal from the Circuit Court of Cook County No. 01 L 6405 Honorable David R. Donnersberger, Judge Presiding. Appeal from the Circuit Court of Cook County No. 01 L 6402 Honorable Jennifer Duncan Brice, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Cahill

[8]  Plaintiffs Sandra Fender, Frank Fender and Colleen M. Poull appeal from the dismissals of their complaints against the Town of Cicero (Cicero) and Cicero police officers, including John Doe(s), Waldemar A. Cruz, Louis G. Mazza and Jerry A. Simek, for negligence in failing to rescue the victims of a residential fire. Defendants argued, and the trial court agreed, that the complaints must be dismissed because defendants were immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/1-101 et seq. (West 2000)). We affirm.

[9]  On September 15, 1997, an arson fire at Poull's home, 2322 S. 61th Avenue, Cicero, resulted in the deaths Poull's five children Kevin, Charissa, Shawn and William Poull and Stephanie Martin. The Fenders and their daughter Matty, who apparently were visiting the Poull home at the time of the fire, suffered injuries from exposure to flames and smoke. The first emergency personnel at the scene were Cicero police officers, including Cruz, Mazza and Simek.

[10]   The Fenders and Poull filed complaints against the Town of Cicero and the individual police officers, alleging negligence for the failure of the officers to attempt a rescue when they knew victims were trapped inside the building. Plaintiffs argued that although Cicero had trained and equipped the police officers to respond to fire emergencies as "public safety officers," the officers did not attempt a rescue. In contending that Cicero held out its police officers to the public as being prepared for fire emergencies, plaintiffs relied on language in a Cicero town handbook, which is not of record. Plaintiffs asserted that Cicero led its citizens to believe that it had instituted a program of extended emergency training for police officers and firemen, and once having voluntarily undertaken such a program, the town should have ensured that the officers would attempt a rescue.

[11]   In general, municipalities are liable in tort to the same extent as private parties unless an immunity provision applies under the Act (745 ILCS 10/1-101 et seq. (West 2000)). Van Meter v. Darien Park District, 207 Ill. 2d 359, 368-69, 799 N.E.2d 273 (2003). The Act "governs whether and in what situations local governmental units are immune from civil liability." Harrison v. Hardin County Community Unit School District No. 1, 197 Ill. 2d 466, 471, 758 N.E.2d 848 (2001). The rationale for immunity is that public officials, when acting within their official discretion, should be allowed to exercise their judgment without fear that a mistake made in good faith might subject them to lawsuit. Harrison, 197 Ill. 2d at 472.

[12]   The sections of the Act that are relevant to the plaintiffs' claims are:

[13]   "§2-109. A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable." 745 ILCS 10/2-109 (West 2000).

[14]   "§2-201. Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused." 745 ILCS 10/2-201 (West 2000).

[15]   "§4-102. Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes, failure to detect or solve crimes, and failure to identify or apprehend criminals." 745 ILCS 10/4-102 (West 2000).

[16]   "§5-101. 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." 745 ILCS 10/5-101 (West 2000).

[17]   "§5-102. Neither a local public entity that has undertaken to provide fire protection service nor any of its employees is liable for an injury resulting from the failure to suppress or contain a fire or from the failure to provide or maintain sufficient personnel, equipment or other fire protection facilities." 745 ILCS 10/5-102 (West 2000).

[18]   "§5-103. (a) Neither a local public entity, nor a public employee acting in the scope of his employment, is liable for an injury resulting from the condition of fire protection or firefighting equipment or facilities. ***

[19]   (b) Neither a local public entity nor a public employee acting in the scope of his employment, is liable for an injury caused by an act or omission of a public employee while engaged in fighting a fire. However, this Section shall not apply if the injury is caused by the willful and wanton conduct of the public employee." 745 ILCS 10/ 5-103(a), (b) (West 2000).

[20]   Section 1-210 of the Act defines "willful and wanton conduct" as "a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property." 745 ILCS 10/1-210 (West 2000). This definition applies "in any case where a 'willful and ...


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