Carolan v. City of Chicago , 2018 IL App (1st) 170205 ( 2018 )

2018 IL App (1st) 170205
FIRST DIVISION
June 18, 2018
No. 1-17-0205
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
MARGARET CAROLAN, as Independent Executor of ) Appeal from the
the ESTATE OF MICHAEL J. NORTON, deceased, and ) Circuit Court of
BRITTANY NORTON, ) Cook County
)
Plaintiffs-Appellants, )
)
v. ) No. 16 L 4331
)
THE CITY OF CHICAGO, a Municipal Corporation, )
and OFFICE OF EMERGENCY MANAGEMENT & )
COMMUNICATIONS, a Department of the City of )
Chicago, )
)
Defendants, ) The Honorable
) Daniel T. Gillespie,
(City of Chicago, Defendant-Appellee). ) Judge Presiding.
PRESIDING JUSTICE PIERCE delivered the judgment of the court, with opinion.
Justices Harris and Mikva concurred in the judgment and opinion.
OPINION
¶1 Plaintiffs Margaret Carolan, as independent executor of the estate of Michael J. Norton,
deceased, and Brittany Norton, the decedent’s daughter (collectively, plaintiffs), sued the City of
Chicago (City) and the Office of Emergency Management and Communications (OEMC) 1 to
1
In the circuit court, the City argued that OEMC was not a suable entity because “it is merely a
division of the City of Chicago, with no independent legal existence.” Plaintiffs did not advance any
argument in response to the City’s position. The circuit court agreed with the city and dismissed OEMC
No. 1-17-0205
recover damages for the death of Michael J. Norton. Plaintiffs alleged that, in May 2009,
defendants failed to timely dispatch police in response to a 911 call reporting an armed robbery
in progress at Norton’s convenience store and that Norton was shot and killed less than two
minutes before police arrived. The circuit court granted summary judgment in favor of the City
on the basis that the City was immune under the Local Governmental and Governmental
Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/4-102 (West 2008)), that the
City did not owe Norton any duty, and that plaintiffs could not establish either proximate cause
or that the City engaged in willful and wanton misconduct. For the following reasons, we affirm.
¶2 BACKGROUND
¶3 In the evening of May 14, 2009, Norton was working in the convenience store he owned
at 4759 West North Avenue, Chicago, Illinois, located on the first floor of an apartment building
that he owned and operated. Several people entered the store, including one wearing a ski mask
and armed with a gun. A passerby saw someone wearing a ski mask inside Norton’s store and
called 911. OEMC received the 911 call at 7:12 p.m. The passerby placed a second 911 call that
OEMC received at 7:17 p.m. At 7:20 p.m., a police unit was dispatched to the scene. Three
additional units were dispatched within the next two minutes, and additional units were
dispatched thereafter. When police arrived at Norton’s store, they found Norton tied up inside a
storage area with a gunshot wound to the head. Medical personnel pronounced Norton dead at
the scene. 2
¶4 Plaintiffs initiated this action 2010 and filed an amended complaint in June 2012. The
parties engaged in discovery and the case was set for trial. Plaintiffs voluntarily dismissed their
as a defendant. Plaintiffs raise no argument on appeal as to whether OEMC is a suable entity, and we
therefore treat the city as the only proper defendant.
2
Beatrice Rosado, who was a tenant in Norton’s building, and her boyfriend Elvin Payton were
identified as the offenders and both later pleaded guilty to killing Norton.
2
No. 1-17-0205
complaint on the eve of trial and timely refiled their complaint in April 2016. The refiled
complaint alleged that Norton was shot and killed two minutes before police arrived on the scene
and that the failure to dispatch police to an armed robbery in progress until eight minutes after
the initial 911 call was “willful and wonton” and “demonstrated a reckless disregard” for
Norton’s welfare. The refiled complaint asserted wrongful death and survival claims on behalf of
Norton’s estate and a loss of society claim on behalf of Brittany.
¶5 The City moved for summary judgment. The City argued, in relevant part, that under
section 4-102 of the Tort Immunity Act, it was immune from any liability for failing to prevent
Norton’s death, failing to provide adequate police protection or services, or failing to make
arrests. Id. The City further argued that it did not owe Norton any common law duty to protect
him from a third party attack. Furthermore, the City argued that there was no genuine issue of
material fact as to proximate cause because Norton’s death was due to a criminal act by a third
party and plaintiff could only speculate as to whether an earlier dispatch of police to the scene
would have prevented Norton’s death. The City’s motion was fully briefed, and we summarize
the evidence submitted by the parties in connection with the City’s motion for summary
judgment.
¶6 Erin Hansen testified at her deposition that she was the supervisor of investigations for
OEMC. She explained that when a 911 call is received, a communications operator obtains the
relevant information from the caller and inputs data into a computer aided dispatch (CAD)
system. The communications operator then electronically transmits the CAD data to the
appropriate police dispatcher, who then assigns field units to the call. For ongoing situations such
as a robbery in progress, an operations supervisor follows up on the dispatch functions and
monitors the situation. Each 911 call is assigned an event number, event type, and priority level
3
No. 1-17-0205
by either the communications operator or the dispatcher. There are five priority levels. Priority 1,
the highest civilian priority level, indicates a threat to life and includes acts that are in progress
that could result in significant loss or damage to property where an arrest could be effectuated.
Level 1 contains subcategories A through D, with subcategory A indicating the highest ranking.
¶7 Hansen explained that, here, the initial 911 call was received by OEMC at 7:11:57 and
was logged by OEMC at 7:12:30 p.m. The call was coded as a “ROBIP,” indicating a robbery in
progress; was assigned priority level 1A; and was transferred to the appropriate dispatcher. The
second 911 call was received at 7:17:19 p.m. and logged at 7:21:23 p.m. OEMC standards
provide that a priority 1A call be dispatched within 10 minutes of the call being received.
Between 7:20:41 p.m. and 7:21:03 p.m., the dispatcher dispatched four units to 4759 West North
Avenue. Hansen could not say for certain why units were not dispatched sooner, but Hansen
explained that on May 14, 2009, between 2:50 p.m. and 10:23 p.m., District 25 (which includes
4759 West North Avenue) was under a “radio assignments pending” (RAP), meaning there were
more events pending than field units available. Hansen could not be certain that there were
actually more events pending than units available but stated that the most likely reason for the
eight minute dispatch time was that no units were available for immediate dispatch. OEMC
records did not reflect what activities the units that ultimately responded were engaged in prior to
being dispatched to 4759 West North Avenue.
¶8 On December 29, 2016, the circuit court entered a written order, granting summary
judgment in favor of the City. The circuit court concluded that a 911 operator’s alleged failure to
timely transmit a 911 request was a failure to provide adequate police protection and therefore
fell within the immunity provision of section 4-102 of the Tort Immunity Act. See id. The circuit
court further concluded that the City’s conduct was not willful and wanton because the conduct
4
No. 1-17-0205
alleged “could be, at most, characterized as inadvertence or incompetence.” The circuit court
noted that all available police units were on assignment at the time of the initial 911 call and that
police were dispatched within 8 minutes of the initial call, which was within the 10 minute
OEMC internal standard. Furthermore, the circuit court concluded that the City did not owe
Norton any common law duty to protect him against attacks by a third party because Norton and
the City did not stand in any recognized special relationship. Finally, the circuit court found that
plaintiffs could not establish proximate cause because the legal cause of Norton’s death was the
independent criminal act of a third party and legal cause is not established where the alleged
negligence only creates a condition that allowed the injury to be possible. Plaintiffs filed a timely
notice of appeal.
¶9 ANALYSIS
¶ 10 On appeal, plaintiffs argue that the City is not entitled to immunity under section 4-102 of
the Tort Immunity Act. Plaintiffs contend that the circuit court misconstrued their claims because
“[t]his case is not about what the police did or did not do, it is about the failure of 911 to dispatch
police pursuant to an emergency call.” Plaintiffs argue our legislature intended the Emergency
Telephone System Act (50 ILCS 750/15.1 (West 2008)) to govern immunity for the actions of
emergency dispatchers because it is the more recently enacted and specific legislative
pronouncement. Plaintiffs further argue that the circuit court erred in finding that plaintiffs could
not establish willful or wanton misconduct or proximate cause and that the City did not owe
Norton a duty.
¶ 11 Summary judgment is appropriate if the pleadings, depositions, affidavits, and other
admissions on file establish that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016); Cohen v.
5
No. 1-17-0205
Chicago Park District, 2017 IL 121800, ¶ 17. The purpose of summary judgment is not to try a
question of fact, but rather to determine whether one exists. Robidoux v. Oliphant, 201 Ill. 2d
324, 335 (2002). “In determining whether a genuine issue of material fact exists, the court must
construe the pleadings, depositions, admissions, and affidavits strictly against the movant and
liberally in favor of the nonmovant.” West Bend Mutual Insurance Co. v. DJW-Ridgeway
Building Consultants, Inc., 2015 IL App (2d) 140441, ¶ 20. A party moving for summary
judgment bears the initial burden of production and may satisfy it by either showing that some
element of the case must be resolved in its favor or that there is an absence of evidence to
support the nonmoving party’s case. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624 (2007). Once
the moving party satisfies that initial burden, the burden shifts to the nonmoving party to come
forward with some factual basis that would entitle it to a favorable judgment. Id. We review a
circuit court’s ruling on summary judgment de novo. Standard Mutual Insurance Co. v. Lay,
2013 IL 114617, ¶ 15.
¶ 12 Plaintiffs contend that section 4-102 of the Tort Immunity Act does not apply here
because their claims do not allege any failure to provide adequate police protection. Plaintiffs
further argue that even if section 4-102 of the Tort Immunity Act could apply, section 15.1 of the
Emergency Telephone System Act provides the “controlling immunity” because it is the more
specific immunity. We find that section 4-102 of the Tort Immunity Act does apply based on our
supreme court’s decision in DeSmet v. County of Rock Island, 219 Ill. 2d 497 (2006).
¶ 13 Section 4-102 of the Tort Immunity Act provides:
“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
6
No. 1-17-0205
protection or service, failure to prevent the commission of crimes, failure to detect
or solve crimes, and failure to identify or apprehend criminals. This immunity is
not waived by a contract for private security service, but cannot be transferred to
any non-public entity or employee.” 745 ILCS 10/4-102 (West 2008).
¶ 14 In DeSmet, the plaintiff sued numerous governmental entities and government employees
to recover damages for the death of Doris Hays. Hays was driving her automobile near the
county line between Rock Island County and Henry County when her car left the road and ran
into a ditch. DeSmet, 219 Ill. 2d at 500. A passing motorist observed Hays’s car leave the road
and called the clerk of the Village of Orion, Illinois, to report what she saw including the
location of the accident. Id. at 500-01. The village clerk contacted a dispatcher for Henry
County, who in turn contacted the dispatcher for the City of Moline and the City of East Moline,
who in turn contacted the sheriff’s department for Rock Island County. Id. at 501. No emergency
services, however, were dispatched to the scene of the accident. Id. at 502. Three days later,
Hays’s body was found lying outside her vehicle at the scene of the accident. Id. Plaintiff filed a
complaint, asserting wrongful death and survival claims against Rock Island County, Henry
County, the Village of Orion, the City of Moline, the City of East Moline, and several
individuals in their official capacities. Id. at 502-03. The circuit court dismissed the plaintiff’s
complaint with prejudice, finding that the defendants were immune from tort liability under
section 4-102 of the Tort Immunity Act. Id. at 503. We affirmed the judgment of the circuit
court. Id. at 503-04.
¶ 15 Our supreme court affirmed. The court agreed with several appellate panels that section
4-102 is implicated where “the assistance required *** falls within the statutory umbrella of
‘police protection services.’ ” Id. at 512 (citing McElmeel v. Village of Hoffman Estates, 359 Ill.
7
No. 1-17-0205
App. 3d 824, 827-29 (2005), and Kavanaugh v. Midwest Club, Inc., 164 Ill. App. 3d 213, 221
(1987)). The court rejected the plaintiff’s argument that the defendants’ failure to respond to an
emergency call was the equivalent of failing to provide any police services, finding that the
“governmental defendants rendered police protection service to the general public via their
dispatch centers.” Id. at 513. The court further rejected the plaintiff’s argument that Doe v.
Calumet City, 161 Ill. 2d 374 (1994), recognized a willful and wanton exception to section 4-
102. The DeSmet court first observed that Doe’s holding was overruled sub silentio by
Zimmerman v. Village of Skokie, 183 Ill. 2d 30 (1998), 3 and further held that Doe addressed a
situation where a police officer’s “outrageous conduct” was governed by section 2-202 of the
Tort Immunity Act (745 ILCS 10/2-202 (West 2002)), due to that officer’s control over a crime
scene. DeSmet, 219 Ill. 2d at 515, 518-19 (citing Doe, 161 Ill. 2d at 390-91). The DeSmet court
observed that Doe involved a situation where police had responded to an emergency call,
whereas the defendants in DeSmet did not respond at all. Id. at 520. The court stated:
“Where no officers respond to the scene—whether it is because no police
protection services are provided or because the services provided prove to be
inadequate—the status quo ante is at least not altered to the detriment of those
present. We believe that to be the reasoning behind the legislature’s enactment of
section 4-102 of the Tort Immunity Act.” Id. at 521.
¶ 16 The court concluded:
“Although we firmly believe that citizens have a right to expect the police to
respond in a situation like this, the issue here is whether section 4-102 of the Tort
Immunity Act immunizes the defendants from liability and the consequent
3
Zimmerman was expressly abrogated in Coleman v. East Joliet Fire Protection District, 2016 IL
117952, which abolished the public duty rule and special duty exception.
8
No. 1-17-0205
payment of public funds in satisfaction of an individual’s damage claims.
[Citation.] Section 4-102 immunity applies in this case.” Id. at 522.
¶ 17 Here, similar to the situation in DeSmet, a passerby called 911 to report an emergency
situation and the City failed to dispatch police in response to the first emergency call. Under
these circumstances, the assistance required of the City’s 911 service—a police response to a
crime in progress—clearly falls within section 4-102’s “police protection services.” Under the
holding of DeSmet, we conclude that section 4-102 of the Tort Immunity Act provides immunity
to the City for any failure to provide police protection services or for any inadequate provision of
those services.
¶ 18 Plaintiffs contend, however, that even if section 4-102 could apply, section 15.1 of the
Emergency Telephone System Act should control because it is the more specific immunity.
Plaintiffs rely on plain language of section 15.1 of the Emergency Telephone System Act, a
federal district court decision in Harrell v. City of Chicago Heights, Illinois, 945 F. Supp. 1112
(N.D. Ill. 1996), and our supreme court’s decision in Coleman, 2016 IL 117952, to argue that
section 15.1 applies.
¶ 19 At the outset, we observe that plaintiffs’ brief incorrectly asserts that
“The plain language of 50 ILCS 750/15.1, as it existed at all relevant times,
provided that a ‘unit of local government assuming the duties of an emergency telephone
system board,’ such as the [OEMC], would not be liable for civil damages ‘that directly
or indirectly results from, or is caused by, any act or omission in the *** operation,
maintenance, performance, or provision of 9-1-1 service required by this Act, unless the
act or omission constitutes gross negligence, recklessness, or intentional misconduct.’ 50
ILCS 750/15.1 (2017) [sic].”
9
No. 1-17-0205
¶ 20 As the City correctly observes in its brief, however, the version of section 15.1 of the
Emergency Telephone System Act cited by plaintiffs did not become effective until January 1,
2016, when our legislature enacted Public Act 99-6, which was well after the events in question.
See Pub. Act 99-6, § 2-10 (eff. Jan. 1, 2016) (amending 50 ILCS 750/15.1). Plaintiffs made no
argument in the circuit court—and develop no argument on appeal—that the 2016 legislative
amendments apply to this case, nor did plaintiffs file a reply brief in this court to address their
reliance on the amended version of the statute. Plaintiffs have forfeited any contention that the
2016 amendments apply retroactively, and therefore we will rely on the version of section 15.1
that was in effect in May 2009, which provided, in relevant part:
“No public agency *** or unit of local government assuming the duties of an emergency
telephone system board, nor any officer, agent or employee of any public agency *** or
unit of local government assuming the duties of an emergency telephone system board,
shall be liable for any civil damages as a result of any act or omission, except willful or
wanton misconduct, in connection with developing, adopting, operating or implementing
any plan or system required by this Act.” 50 ILCS 750/15.1 (West 2008).
Whereas section 4-102 of the Tort Immunity Act contains no exception for willful and wanton
conduct (DeSmet, 219 Ill. 2d at 515), section 15.1 of the Emergency Telephone System Act
expressly permitted for civil liability based on willful or wanton misconduct (50 ILCS 750/15.1
(West 2008)).
¶ 21 Plaintiffs make little effort to explain how a tort claim for damages based on an alleged
willful or wanton failure to promptly dispatch police in response to an emergency call amounts
to an “act or omission *** in connection with developing, adopting, operating or implementing
any plan or system required by [the Emergency Telephone System] Act.” Id. The plain language
10
No. 1-17-0205
of the applicable version of section 15.1 related to an emergency system operator’s development,
adoption, operation, or implementation of an emergency “plan or system” and did not expressly
contemplate the provision of emergency services. Therefore, based on the plain language of
section 15.1, the provision of 911 services was not governed by the Emergency Telephone
System Act in May 2009.
¶ 22 The parties direct our attention to four appellate court decisions and one federal district
court order that have addressed the applicability of the Emergency Telephone System Act. Those
cases, however, were all decided prior to our supreme court’s decision in DeSmet, and only two
of those cases addressed a situation that clearly fell within section 15.1.
¶ 23 In Galuszynski v. City of Chicago, 131 Ill. App. 3d 505 (1985), the plaintiffs sued the
City to recover damages for injuries they sustained during a burglary. The plaintiffs alleged that
they called 911 to report someone attempting to break into their home but that police did not
arrive until 24 minutes after the 911 call, during which time the intruder entered the plaintiffs’
home and attacked them. Id. at 506. The City moved to dismiss the plaintiffs’ complaint,
asserting that the City was immune under section 4-102 of the Tort Immunity Act and that the
plaintiffs failed to allege any special duty. Id. The circuit court dismissed the plaintiffs’
complaint, and we affirmed the circuit court’s judgment, finding that the plaintiffs did not
adequately allege any special duty. Id. at 508. The plaintiffs also argued on appeal that section
15.1 of the Emergency Telephone System Act provided for tort liability based on willful or
wanton misconduct on the part of police officials operating a 911 system. Id. at 509. We
observed, however, that the plaintiffs’ argument would require us to find that section 4-102 of
the Tort Immunity Act was “implicitly repealed by the enactment of section 15.1 of the
[Emergency Telephone System Act],” and we declined to make any such finding. Id.
11
No. 1-17-0205
¶ 24 One year later, a different panel of this court filed an opinion in Barth v. Board of
Education of the City of Chicago, 141 Ill. App. 3d 266 (1986). There, the plaintiff sued both the
Board of Education of the City of Chicago and the City of Chicago to recover for injuries
sustained by his 11-year-old son, who suffered a head injury while at school. Id. at 269. Twenty
five minutes after the injury, the school called 911. Id. at 269-70. The school called 911 two
more times in the next 45 minutes. Id. at 270. An ambulance was dispatched three minutes after
the third call, and the boy was taken to the hospital. Id. at 271. The plaintiff’s complaint asserted
negligence claims against the defendants and alleged that the defendants’ conduct was willful
and wanton. Id. At trial, a doctor testified that the delay in transporting the boy to the hospital
permitted a blood clot on the boy’s brain to grow from the size of a walnut to the size of an
orange. Id. After the close of the plaintiff’s case in chief, the circuit court denied the defendants’
motions for a directed verdict, which asserted in part that the defendants were immune from
liability. Id. at 271-72. A jury returned a verdict in favor of plaintiff, and defendants appealed. Id.
at 272. On appeal, we rejected the defendants’ arguments that the 911 system was a police
protection service and therefore concluded that defendants were not immune from liability under
section 4-102 of the Tort Immunity Act. Id. at 278-79. We expressly disagreed with
Galuszynski’s assumption that the 911 system was a police protection service for the purpose of
section 4-102 of the Tort Immunity Act. Id. We concluded that “the applicable standard of
liability is that of wilful and wanton misconduct, found in section 15.1 of the [the Emergency
Telephone System] Act.” Id. at 280.
¶ 25 In Harrell, 945 F. Supp. at 1114, the plaintiffs sued the City of Chicago Heights, Illinois
Bell Telephone Company, and Ameritech Corporation for wrongful death, loss of consortium,
and federal civil rights violations for allegedly failing to provide emergency services. The
12
No. 1-17-0205
plaintiffs alleged that Patrick Harrell suffered a heart attack and that family members and
neighbors called 911, but that the dispatcher hesitated in responding to the first of the emergency
calls while attempting to ascertain whether the plaintiffs lived within the city’s service
boundaries. Id. Harrell was eventually transported to a hospital by an ambulance from a
neighboring municipality, but died at the hospital. Id. The plaintiffs contended that the city and
the telephone providers were liable based on the failure to designate the plaintiffs’ phone number
and address to receive for 911 services despite the fact that the plaintiffs lived within the city’s
municipal boundaries for more than 20 years. Id. The city moved for summary judgment
asserting, in part, that it was immune from liability under section 5-101 of the Tort Immunity Act
(745 ILCS 10/5-101 (West 1992)). Harrell, 945 F. Supp. at 1115. The district court disagreed,
finding that there was no “ ‘complete[ ] fail[ure]’ to provide emergency services and any
subsequent actions fell outside the scope of the immunity provisions of [section] 5-101.” Id. at
1116. The district court then determined that the city’s liability in relation to 911 services “is
more properly governed by [the Emergency Telephone System Act].” Id. The district court
looked to section 15.1 and concluded “the [c]ity could be liable for damages caused by willful
and wanton misconduct taken by itself or its agents in regard to the failure to include the Harrell
residence in the [911] system or for the failure expeditiously to dispatch rescue vehicles to the
Harrell residence.” Id. at 1117. The district court relied on our decision in Barth to conclude that
applying section 5-101 of the Tort Immunity Act’s immunity for failure to “otherwise ***
provide [***] rescue or other emergency service” would “defeat the purpose of the [Emergency
Telephone Service] Act.” (Internal quotation marks omitted.) Id. The federal district court, like
the court in Barth, distinguished Galuszynski on the basis that “the [c]ity’s provision of [911]
paramedic service is clearly not a ‘police protection service.’ ” Id. In sum, the district court
13
No. 1-17-0205
concluded that the city could be liable for damages on a showing of willful and wanton
misconduct. Id. at 1118.
¶ 26 Finally, in Chiczewski v. Emergency Telephone System Board of Du Page County, 295
Ill. App. 3d 605 (1997), the plaintiffs sued defendant to recover damages for injuries sustained
by a minor child during a home invasion. The plaintiffs resided in an unincorporated area outside
of the City of Naperville. Id. at 607. The Illinois Commerce Commission had previously ordered
the defendant to cover that unincorporated area with its emergency telephone system, but the
defendant had failed to so. Id. at 606-07. When the child’s mother called 911, her call was routed
to Naperville’s emergency telephone system rather than the defendant’s system. Id. at 607. The
Naperville dispatcher could not dispatch emergency services outside of Naperville but
immediately transferred the mother’s call to the Du Page County sheriff’s office. Id. Police
arrived at the plaintiffs’ home within 11 minutes of the emergency call and paramedics arrived a
few minutes later, but the mother had already left to drive the child to a hospital. Id. Plaintiffs
sued, asserting that defendant’s failure to implement a 911 system was willful and wanton. Id.
The circuit court granted summary judgment in favor of the defendant, finding that the
defendant’s conduct was not willful and wanton. Id. On appeal, the plaintiffs argued in part that
the defendant failed to enter into an agreement with Naperville and was aware that the plaintiff’s
home was not sufficiently covered by Naperville’s emergency telephone system. Id. at 609. We
rejected that argument and observed that the plaintiffs “failed to plead any facts or present any
evidence that [the] defendant should have been aware that calls from [the] plaintiffs’ subdivision
would be misrouted to Naperville.” Id. We further found that the plaintiffs could not establish
willful and wanton misconduct because the plaintiffs only showed “that a misrouting of an
emergency call may have contributed to an 11-minute response time by emergency personnel,”
14
No. 1-17-0205
which did not evince “intent, utter indifference, or conscious disregard.” (Internal quotation
marks omitted.) Id. at 610.
¶ 27 Chiczewski and Harrell clearly involve claims alleging the failure to develop, adopt,
operate, or implement an emergency telephone system as required by law, and thus fall within
section 15.1 of the Emergency Telephone System Act. However, Barth’s broader holding—that
the 911 system is not a police protection service—is contrary to our supreme court’s subsequent
holding in DeSmet. Furthermore, Barth is only consistent with DeSmet to the extent that DeSmet
recognized that the type of emergency response required affects the applicability of section 4-
102 of the Tort Immunity Act. See DeSmet, 219 Ill. 2d at 512 (finding section 4-102 is
implicated where “the assistance required *** falls within the statutory umbrella of ‘police
protection services’ ”). Therefore, Barth stands for the proposition that when an emergency 911
caller requests emergency medical services and does not request any police response, section 4-
102 is inapplicable because the response does not involve any sort of police protection service. It
is not altogether clear to us, however, that under the applicable version of section 15.1 of the
Emergency Telephone System Act, a tort claim based solely on a delay in dispatching
emergency services implicates section 15.1. Regardless, the 911 call here clearly requested
police intervention in response to a robbery in progress and therefore involves a police protection
service for the purposes of section 4-102 of the Tort Immunity Act, which is not supplanted by
section 15.1 of the Emergency Telephone System Act.
¶ 28 Furthermore, plaintiffs’ reliance on Coleman is misplaced. The sole issue in Coleman
was the continued viability of the public duty rule. There, the plaintiff brought wrongful death
and survival claims on behalf of the decedent Coretta Coleman. Coretta, who lived in Sugar
Creek, an unincorporated area in Will County, placed a 911 call seeking emergency medical
15
No. 1-17-0205
services. Her call was routed to a police dispatch center operated by the Will County sheriff’s
office, which was then transferred to Orland Central Dispatch. Coleman, 2016 IL 117952, ¶ 5.
The defendant, East Joliet Fire Protection District, provided fire and ambulance services to Sugar
Creek and contracted with Orland Central Dispatch to dispatch those services. Id. An ambulance
was dispatched to Coleman’s address but when paramedics arrived, there was no response and
the doors were locked. Id. ¶ 7. The paramedics spoke to Coleman’s neighbors and said that they
could not make a forced entry without police present and that the neighbors should call the police
to make a forced entry. Id. ¶ 8. A supervisor at the East Joliet Fire Protection District ordered the
paramedics to leave. Id. ¶ 9. Coleman’s neighbors called 911 and asked for police to be
dispatched, and another neighbor called 911 to report an emergency at “1600 Sugar Creek
Drive,” which was Coleman’s address. Id. ¶ 10. The dispatcher contacted Orland Central
Dispatch to report a medical emergency, but gave Coleman’s address as “1600 Sugar Creek.” Id.
¶ 11. An ambulance was dispatched to 1600 Sugar Creek Court instead or 1600 Sugar Creek
Drive, and paramedics could not find Coleman’s house. Id. A different ambulance found
Coleman’s house 41 minutes after the initial 911 call and were able to enter the home, but found
Coleman unresponsive. Id. She was taken to a hospital where she was pronounced dead. Id.
¶ 29 Coretta’s husband, as administrator of her estate, sued numerous defendants for wrongful
death and survival. Id. ¶ 12. Several of the plaintiff’s claims asserted willful and wanton conduct.
Id. ¶ 13. Defendants moved for summary judgment, asserting that they did not owe Coretta any
duty under the public duty doctrine and alternatively asserted various statutory immunities,
including the Emergency Medical Services (EMS) Systems Act (210 ILCS 50/3.150 (West
2006)), the Emergency Telephone System Act, and the Tort Immunity Act. Coleman, 2016 IL
117952, ¶ 15. The circuit court granted summary judgment in favor of defendants based on the
16
No. 1-17-0205
public duty rule and the appellate court affirmed. Id. Our supreme court granted the plaintiff’s
petition for leave to appeal and abolished the public duty rule, concluding that “the underlying
purposes of the public duty rule are better served by application of conventional tort principles
and the immunity protection afforded by statutes than by a rule that precludes a finding of a duty
on the basis of the defendant’s status as a public entity.” Id. ¶ 61. The supreme court then
remanded the case to the circuit court for further proceedings. Coleman is plainly inapplicable to
the situation here, as the court did not undertake any effort to determine the scope of any
statutory immunity. Furthermore, in Coleman, the circuit court and appellate court did not reach
the issue of whether any statutory immunity applied, instead relying solely on the common law
public duty rule. Here, the circuit court did not rely on the public duty rule to reach its decision
and instead considered conventional tort principles and the relevant statutory immunities as
instructed by Coleman.
¶ 30 Finally, even assuming arguendo that section 15.1 of the Emergency Telephone System
Act did apply, the circuit court properly granted summary judgment in favor of the City because
plaintiffs did not come forward with any evidence that might create any genuine issue of material
fact as to whether the City’s conduct was willful or wanton.
¶ 31 Willful and wanton conduct is defined as “conduct as a course of action which shows
actual or deliberate intent to harm or which, if the course of action is not intentional, shows an
utter indifference to or conscious disregard for a person’s own safety or the safety or property of
others.” Pfister v. Shusta, 167 Ill. 2d 417, 421-22 (1995). Willful and wanton conduct “includes a
range of mental states, from actual or deliberate intent to cause harm, to conscious disregard for
the safety of others or their property, to utter indifference for the safety or property of others.”
Harris v. Thompson, 2012 IL 112525, ¶ 41. Whether conduct rises to the level of willful and
17
No. 1-17-0205
wanton is ordinarily a question of fact (id. ¶ 42), but the circuit court may enter judgment in
favor of the defendant as a matter of law where the evidence clearly shows that the conduct
cannot meet the willful and wanton standard (Lacey v. Perrin, 2015 IL App (2d) 141114, ¶ 39).
¶ 32 Here, units were dispatched within eight minutes of the first call, and Hansen stated that
OEMC standards require that units be dispatched within 10 minutes of receiving a priority 1A
emergency call. Although Hansen could not be certain that there were actually more events
pending than units available, she stated that the most likely reason for the eight minute dispatch
time was that no units were available for immediate dispatch. Plaintiffs did not come forward
with any evidence to show that there were units available for dispatch. Plaintiffs argue that “units
2530, 2534, 2590, 2599, 2573 each appeared to have been available for assignment.” However,
at her deposition, Hansen stated that unit 2530 was a “sergeant’s car” and would not typically be
dispatched to an incident; units 2590 and 2599 were the field unit and watch commander,
respectively, and would not typically be dispatched to a robbery; and unit 2534 was on another
assignment. Finally Hansen stated that unit 2573 did not appear to have been on another
assignment, but there are no other facts in the record to show that unit 2573 was available for
dispatch. And while plaintiffs contend that Hansen was not certain that the RAP was the cause of
any dispatch delay, plaintiffs do not identify any evidence in the record to show that the
dispatcher deliberately ignored the first emergency call or that the dispatcher consciously
disregarded the first emergency call. Based on the record before us, we agree with the circuit
court that there is no genuine issue of material fact that the City’s conduct fell below the standard
of willful or wanton. Therefore, even if section 15.1 of the Emergency Telephone System Act
applied, the City would be immune from civil liability.
18
No. 1-17-0205
¶ 33 Based on our disposition, we need not address whether the City owed Norton a duty or
whether plaintiffs could establish that the City’s conduct was a proximate cause of Norton’s
death.
¶ 34 CONCLUSION
¶ 35 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 36 Affirmed.
19