Appeal from the Circuit Court of Cook County. No. 02 L 6039. Honorable Philip L. Bronstein, Judge Presiding.
The opinion of the court was delivered by: Justice Hoffman
This is a permissive interlocutory appeal brought pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). The certified question before us is whether section 4-102 or 4-107 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/4-102, 4-107 (West 2002)) provides absolute immunity to a municipality and its police officers who are alleged to have willfully and wantonly failed to prevent a crime against a victim of domestic violence. For the reasons which follow, we answer the question in the negative and remand the matter to the circuit court.
 The facts giving rise to this litigation are substantially undisputed. On May 3, 2002, Ronyale White called "911" requesting police assistance because her husband, Louis Drexel, was in her house. White informed the operator that Drexel was in violation of an order of protection issued by the circuit court and that he owned a gun. An emergency telephone dispatcher relayed this information to Chicago police officers Christopher Green and Donald E. Cornelius, and one of the officers acknowledged receipt of the information. Neighborhood witnesses reported that two police officers drove in a marked car to White's house, but left the scene without investigating or assisting in the matter approximately five minutes before Drexel shot White. White died as a result of the gunshot wounds on the following day.
The plaintiff, Melissa Moore, as independent administrator of White's estate, subsequently filed a complaint against Green, Cornelius, and the City of Chicago (hereinafter referred to as the "City"), asserting wrongful death and survival actions. She alleged in her fourth-amended complaint*fn1 that, at the relevant time period, White was a member of the class of persons designed to be protected under the Illinois Domestic Violence Act of 1986 (hereinafter referred to as the "Domestic Violence Act") (750 ILCS 60/101 et seq. (West 2002)), and that the officers had a duty under the statute to use all reasonable means to prevent further abuse, harassment, or exploitation of White by, inter alia, providing or arranging transportation for her to a place of shelter or arresting Drexel. Moore charged that the officers breached the duty of care owed to White through one or more of the following willful and wanton acts or omissions: traveling to White's house and leaving the scene prior to investigating or offering any assistance with respect to a violation of an order of protection; knowingly rejecting White's plea for assistance; acknowledging receipt of the information relayed by the emergency dispatcher and preventing other officers from assisting White by failing to appear at the scene; failing to "intervene in the situation" at White's home, knowing she was in need of protection; and failing to transport White to a safe location.
The City filed a motion to dismiss the plaintiff's complaint pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/ 2-619 (West 2002)), arguing that, pursuant to sections 4-102 and 4-107 of the Local Governmental and Governmental Employees Tort Immunity Act (hereinafter referred to as the "Tort Immunity Act") (745 ILCS 10/1-101 et seq. (West 2002)), it was absolutely immune from any liability predicated on an alleged failure to prevent a crime or to make an arrest. Thereafter, Green and Cornelius joined in the City's motion. The plaintiff argued in her response that section 305 of the Domestic Violence Act (750 ILCS 60/305 (West 2002)), which provides an exception to law enforcement immunity for conduct which is willful and wanton, controlled her causes of action rather than section 4-102 or 4-107 of the Tort Immunity Act, as asserted by the defendants.
The circuit court denied the defendants' motion to dismiss, agreeing with the plaintiff's position that section 305 of the Domestic Violence Act was the applicable immunity provision. The City filed a motion for reconsideration of the court's ruling, and Green and Cornelius also joined in that motion. The circuit court denied the motion to reconsider. It did, however, find that resolution of the defendants' motion involved a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from its order may materially advance the ultimate termination of the litigation. The circuit court set forth in its written order the following question of law involved:
"Does Section 4-102 or 4-107 of the Local Governmental and Governmental Employees Tort Immunity Act provide absolute immunity to a municipality and its police officers who are alleged to have willfully and wantonly failed to prevent a crime against a protected person by their actions or inactions (as specified in ¶ 19 of Counts I and II of the Fourth Amended Complaint at Law attached) under Section[s] 201 and 305 of the Illinois Domestic Violence Act of 1986 [sic]?"
The defendants timely filed an application for leave to appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), which this court granted on October 23, 2003.
On appeal, we are asked to consider whether the immunity provisions contained in section 4-102 or 4-107 of the Tort Immunity Act (745 ILCS 10/4-102, 4-107 (West 2002)), or the one found in section 305 of the Domestic Violence Act (750 ILCS 60/305 (West 2002)) applies to the instant case. Because this appeal concerns a question of law certified by the circuit court pursuant to Supreme Court Rule 308 and presents a question of statutory interpretation, our review is de novo. Feltmeier v. Feltmeier, 207 Ill. 2d 263, 266, 798 N.E.2d 75 (2003); Lanning v. Harris, 342 Ill. App. 3d 965, 967, 796 N.E.2d 667 (2003).
The Tort Immunity Act protects local public entities and public employees from liability arising from the operation of government. 745 ILCS 10/1-101.1 (West 2002). Specifically, section 4-102 of the Tort Immunity Act provides that:
"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 2002).
Section 4-107 provides in pertinent part that "[n]either a local public entity nor a public employee is liable for an injury caused by the failure to make an arrest ***." 745 ILCS 10/4-107 (West 2002). The plain language of sections 4-102 and 4-107 provide no exception for willful and wanton misconduct. See Hernandez v. Kirksey, 306 Ill. App. 3d 912, 917, 715 N.E.2d 669 (1999).
In 1986, the General Assembly enacted the Domestic Violence Act to aid victims of domestic violence and to prevent further violence. See 750 ILCS 60/102 (West 2002); Radke v. Radke, 349 Ill. App. 3d 264, 268, 812 N.E.2d 9 (2004). Persons protected under the Act include "any person abused by a family or household member". 750 ILCS 60/201(a)(i) (West 2002). Article II of the Act specifically addresses the procurement and enforcement of orders of protection, while Article III details the responsibilities of law enforcement officers towards victims of abuse. Specifically, section 304 provides that, whenever a law enforcement officer has reason to believe that a person has been abused, neglected, or exploited by a family or household member, the officer shall immediately use all reasonable means to prevent further abuse, neglect, or exploitation, including, inter alia: (1) arresting the party committing the abuse; (2) seizing and taking inventory of weapons if there is probable cause to ...