DeSmet v. County of Rock Island

Docket No. 100261.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

MARY L. DeSMET, as Personal Representative of the Estate

of Doris F. Hays, Deceased, Appellant, v. THE COUNTY OF

ROCK ISLAND, Illinois, et al., Appellees.

Opinion filed April 20, 2006.

JUSTICE KARMEIER delivered the judgment of the court,

with opinion.

Chief Justice Thomas and Justices Freeman, Fitzgerald,

Kilbride and Garman concurred in the judgment and opinion.

Justice McMorrow dissented, with opinion.

OPINION

The plaintiff, Mary L. DeSmet, as personal representative of

the estate of the decedent, Doris F. Hays (Hays), filed a

multicount complaint in the circuit court of Rock Island County

naming several local governmental entities, and their various

employees, parties defendant. Plaintiff=s complaint alleged that

each violated a duty to the plaintiff=s decedent and was liable to

plaintiff pursuant to the provisions of the Survival Act (755 ILCS

5/27B6 (West 2002)) and the Wrongful Death Act (740 ILCS

180/0.01 et seq. (West 2002)). All defendants moved to

dismiss, arguing that they owed no duty to Hays and they

were, in any event, immune under the Local Governmental and

Governmental Employees Tort Immunity Act (Act) (745 ILCS

10/1B101 et seq. (West 2002)). Although the defendants raised

the applicability of several sections of the Act, all specifically

argued they were immune from liability under the provisions of

section 4B102 of the Act (745 ILCS 10/4B102 (West 2002)).

After a hearing, the circuit court dismissed plaintiff=s complaint

with prejudice, ruling that section 4B102 immunity applied.

Plaintiff timely filed notice of appeal, and the appellate court

affirmed. No. 3B03B0964 (unpublished order under Supreme

Court Rule 23). We granted the plaintiff=s petition for leave to

appeal (177 Ill. 2d R. 315), and now affirm the judgment of the

appellate court.

BACKGROUND

The record, for purposes of the motions to dismiss, 1 reflects

that on April 5, 2002, Doris Hays was driving her vehicle on

U.S. Route 150 in rural Rock Island County when it left the

1

For purposes of clarification, we note that the facts set forth herein are

taken from plaintiff=s first amended complaint and a transcript of

interagency calls published in a newspaper article that plaintiff attached as

an exhibit to her response to defendants= motions to dismiss. The article

itself acknowledges that the Atranscript does not precisely reflect the audio-

taped version of the calls.@ One of the defendants, in reply to plaintiff=s

response, refused to concede the accuracy of the transcript, and another

argued that the exhibit should be stricken; however, both stated they were

willing to assume its accuracy for purposes of the motions to dismiss. We

will do so as well.

road and ran into a ditch. A passing motorist witnessed the

vehicle=s departure from the roadway and used her cell phone

to report her observation to Lori Sampson, clerk of the Village

of Orion. After Sampson received that telephone call, she

phoned Christine Wrigley, the dispatcher for Henry County.

Sampson told Wrigley that she had received a call from a

motorist who said she had witnessed a vehicle traveling at a

high rate of speed go off Route 150 in Rock Island County, just

over the Henry County/Rock Island County line. Wrigley asked

Sampson: AOkay, did they wreck?@ Sampson replied that the

caller Asaid she believed they had to of because they were

traveling at such a high rate of speed.@ Sampson noted that the

caller had not stopped to verify that the vehicle had wrecked,

stating, AShe continued on her way.@ Sampson told Wrigley that

she did not have a vehicle description; however, she described

the area that the caller had referred to as just over the Rock

Island County line, Awhere the couple of houses are at in the

ditch where it=s such a mess and they=ve got all that junky

equipment and so on.@ Wrigley then told Sampson she would

contact Rock Island County.

Instead of contacting Rock Island County, however, Wrigley

notified the City of Moline and the City of East Moline via the

Moline-East Moline Dispatch Center (Dispatch Center). Wrigley

informed dispatcher Debra Roman that she had received a

report of a vehicle Adown in the ditch@ on Route 150 Aat the

Rock Island, Henry County line *** on the Rock Island County

side by two houses with a lot of junk in the yard.@ Wrigley

indicated she did not have a vehicle description.

Roman then telephoned Rock Island County at its sheriff=s

department and reported the incident to Myrtle DeWitte, a

dispatcher for Rock Island County. The following conversation

ensued between the Dispatch Center and Rock Island County:

ARock Island County dispatcher Myrtle DeWitte:

Radio, Sergeant DeWitte.

Moline-East Moline dispatcher Debra Roman: Hello,

Myrtle, this is Deb at Moline.

DeWitte: Hi.

Roman: Henry County called.

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DeWitte: Um hum.

Roman: To tell me about a vehicle in the ditch.

DeWitte: Okay.

Roman: On Route 150.

DeWitte: Uh huh.

Roman: And it=s right at the Rock Island County,

Henry County line.

DeWitte: Oh, heaven forbid they would handle it.

Roman: Well, I know.

DeWitte: Okay.

Roman: They call us instead of calling you.

DeWitte: (Laughter) Okay, what kind of vehicle, did

they say?

Roman: Uh, no they didn=t know, this is a third party

call.

DeWitte: Okay.

Roman: By some houses or something that, couple

houses that have a bunch of junk in the yard.

DeWitte: Oh, okay, we=ll check on it.

Roman: Ya, that=ll, that=ll narrow it.

DeWitte: Ya, that=ll get it for us.

Roman: Ya.

DeWitte: Okay, thanks.@

None of the parties contacted responded to the scene on

the day the calls were made. On that day, Doris Hays= family

also notified Rock Island County that she was missing. Three

days later, Hays= body was found lying outside her vehicle at

the scene of the accident.

On March 3, 2003, plaintiff, Mary DeSmet, as personal

representative of the estate of the decedent, Doris F. Hays,

filed a 24-count complaint in the circuit court of Rock Island

County naming as parties defendant: Rock Island County;

Michael Grehan, the sheriff of Rock Island County; Myrtle

DeWitte, a dispatcher for Rock Island County; Henry County;

Gilbert Cady, the sheriff of Henry County; the Village of Orion;

Lori Sampson, clerk of the Village of Orion; the City of Moline;

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the City of East Moline; the Moline-East Moline Dispatch

Center; Debra Roman, dispatcher for the Dispatch Center; and

Steven Etheridge, the police chief of the City of Moline. Plaintiff

was subsequently granted leave to file an amended complaint.

Defendants thereafter filed motions to dismiss plaintiff=s

amended complaint pursuant to section 2B619 of the Code of

Civil Procedure (735 ILCS 5/2B619 (West 2002)), relying

principally on section 4B102 of the Tort Immunity Act (745 ILCS

10/4B102 (West 2002)). Various defendants also relied on the

public duty rule, as well as sections 2B106, 2B109, 2B201,

2B204, 2B210, 2B212, 3B108, and 5B101 of the Tort Immunity

Act (745 ILCS 10/2B106, 2B109, 2B201, 2B204, 2B210, 2B212,

3B108, 5B101 (West 2002)), and section 3.150 of the

Emergency Medical Services (EMS) Systems Act. 210 ILCS

50/3.150 (West 2002).

At the hearing on the motions to dismiss, in response to

certain arguments raised by defendants, the plaintiff suggested

that the complaint Aalleged facts sufficient to show willful and

wanton conduct.@ When the circuit court observed that the

complaint Aspecifically used the word >negligence= @ and that it

Alooks to be pled in negligence,@ counsel for plaintiff

responded, A[T]hat being noted, if this court was inclined to

make a ruling today or in the future based on the words of

negligence in there, we would ask to amend it to just change

those words, even though the facts we think are sufficient.@ The

circuit court agreed that point was Aeasily cured by

amendment.@ However, the court was never presented with a

written motion to amend, and it did not make a ruling on the

plaintiff=s offer to do so. The circuit court ultimately dismissed

plaintiff=s complaint with prejudice, ruling that section 4B102

immunized all defendants.

On appeal, plaintiff contended that the circuit court erred in

granting defendants= motion to dismiss, arguing that (1) the

immunity provided by section 4B102 of the Act was not

available to the defendants; (2) the Apublic duty rule@ does not

apply to this case; and (3) the defendants voluntarily undertook

a duty to help Hays when they each received telephone calls

informing them of the accident and then forwarded this

information to another party. The appellate court held that

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section 4B102 immunity applied to all defendants.

Consequently, the court determined there was no need to

address plaintiff=s other issues. No. 3B03B0964 (unpublished

order under Supreme Court Rule 23).

ANALYSIS

At the outset, we note that immunity under the Tort

Immunity Act is an affirmative matter properly raised in a

section 2B619 motion to dismiss. Governmental entities bear

the burden of proving their immunity under the Act. Van Meter

v. Darien Park District, 207 Ill. 2d 359, 370 (2003). When a

court rules on a section 2B619 motion to dismiss, it must

interpret all pleadings and supporting documents in the light

most favorable to the nonmoving party. Van Meter, 207 Ill. 2d

at 367-68, quoting In re Chicago Flood Litigation, 176 Ill. 2d

179, 189 (1997). Our review of a section 2B619 dismissal is de

novo. Van Meter, 207 Ill. 2d at 368.

Before this court, plaintiff presents three issues for our

consideration, all of which concern the applicability of section

4B102 of the Act. We set forth those issues precisely as plaintiff

has phrased them: (1) whether a municipality that sends no

assistance whatsoever in response to a request for help at an

accident scene can claim the immunity provided by section

4B102 of the Tort Immunity Act for failure to provide adequate

police or service; (2) whether a call placed for help at an

accident scene automatically triggers a police search rather

than a paramedic response, thus triggering the immunity of

section 4B102 for failure to provide adequate police services, or

whether such a call instead simply triggers a duty to send

rescue personnel, whose misconduct is not shielded by section

4B102; and (3) whether Doe v. Calumet City=s recognition of a

willful and wanton exception to the immunity otherwise

provided by section 4B102 for injuries resulting from failure to

provide adequate police service remains good law and applies

in this instance. Additionally, in response to defendants=

argument that they owed no duty to plaintiff=s decedent

because of the Apublic duty rule,@ plaintiff argues, alternatively,

that the rule is Aan anachronism and should be abolished,@ or

the Arule is actually an immunity provision.@

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Under the facts of this case, we hold that section 4B102 of

the Act provides immunity for defendants. Given that

determination, we deem it unnecessary to clarify the nature

and continued viability of the public duty rule in this context.

In Illinois, governmental entities were originally immune

from tort liability under the doctrine of sovereign immunity. This

court abolished sovereign immunity in 1959. See Molitor v.

Kaneland Community Unit District No. 302, 18 Ill. 2d 11 (1959).

In response to this court=s decision in Molitor, the legislature

enacted the Local Governmental and Governmental

Employees Tort Immunity Act in 1965. Zimmerman v. Village of

Skokie, 183 Ill. 2d 30, 43 (1998); Barnett v. Zion Park District,

171 Ill. 2d 378, 386 (1996). As we noted in Village of

Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 490

(2001), the purpose of the Act is to protect local public entities

and public employees from liability arising from the operation of

government. A >By providing immunity, the legislature sought to

prevent the diversion of public funds from their intended

purpose to the payment of damage claims.= @ Village of

Bloomingdale, 196 Ill. 2d at 490, quoting Bubb v. Springfield

School District 186, 167 Ill. 2d 372, 378 (1995).

The ratification of the Illinois Constitution of 1970 validated

both Molitor and the Tort Immunity Act. Harinek v. 161 North

Clark Street Ltd. Partnership, 181 Ill. 2d 335, 344 (1998). As

we observed in Harinek, article XIII, section 4, of the Illinois

Constitution now makes the General Assembly the ultimate

authority in determining whether local units of government are

immune from liability. Harinek, 181 Ill. 2d at 344-45.

Some decisions of this court have indicated that the

Acommon law public duty rule@ survived the abolition of

sovereign immunity and the enactment of the Tort Immunity

Act. See Zimmerman, 183 Ill. 2d at 44-45, citing approvingly

Huey v. Town of Cicero, 41 Ill. 2d 361, 363 (1968)

(AIndependent of statutory or common-law concepts of

sovereign immunity, the general rule is that a municipality or its

employees is not liable for failure to supply general police or

fire protection. [Citations.] This rule has been maintained in the

face of decisions holding municipalities liable for affirmative

negligent or wilful acts by their employees@). In Zimmerman,

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this court explained the rule and its purpose:

AThe public duty rule establishes that >a municipality or

its employees is not liable for failure to supply general

police or fire protection.= Huey v. Town of Cicero, 41 Ill.

2d 361, 363 (1968). The rationale behind the nonliability

principle of the public duty rule is that a municipality=s

duty is to preserve the >well-being of the community= and

that such a duty is >owed to the public at large rather

than to specific members of the community.= Schaffrath

v. Village of Buffalo Grove, 160 Ill. App. 3d 999, 1003

(1987).@ Zimmerman, 183 Ill. 2d at 44.

Schaffrath, cited approvingly in Zimmerman, provides

additional insight into the rationale for the public duty rule as it

pertains to police protection: AThe duty of the police to preserve

the well-being of the community is owed to the public at large

rather than to specific members of the community. [Citation.]

This rule rests upon public policy considerations that a police

department=s negligence, oversights, blunders or omissions are

not the proximate or legal cause of harms committed by others.

A general duty would put the police in the position of

guaranteeing the personal safety of every member of the

community.@ Schaffrath v. Village of Buffalo Grove, 160 Ill. App.

3d 999, 1003 (1987).

As noted, in addition to explaining the rule and its purpose,

this court, in Zimmerman, also affirmed the continuing viability

of the public duty rule:

AIn Huey, this court determined that the public duty rule

remained viable, even after the passage of the Tort

Immunity Act, on the basis that the rule existed

>[i]ndependent[ly] of statutory or common-law concepts

of sovereign immunity.= Huey, 41 Ill. 2d at 363.

***

This court=s holding in Huey that the public duty rule

exists >[i]ndependent[ly] of statutory or common-law

concepts of sovereign immunity= (emphasis added)

(Huey, 41 Ill. 2d at 363) establishes that neither this

court=s decision in Molitor abolishing sovereign

immunity, the General Assembly=s passage of the Tort

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Immunity Act, nor the ratification of the 1970 Illinois

Constitution altered the common law public duty rule

that a governmental entity generally owes no duty to

provide an individual citizen with specific municipal

services.@ Zimmerman, 183 Ill. 2d at 45.

Finally, this court, in Zimmerman, observed that A >the

existence of a duty and the existence of an immunity are

separate issues.= @ Zimmerman, 183 Ill. 2d at 45, quoting

Barnett, 171 Ill. 2d at 388. In Zimmerman, this court stated,

A >[u]nlike immunity, which protects a municipality from liability

for breach of an otherwise enforceable duty to the plaintiff, the

public duty rule asks whether there was any enforceable duty

to the plaintiff in the first place.= @ Zimmerman, 183 Ill. 2d at 46,

quoting 18 McQuillin on Municipal Corporations '53.04.25, at

165 (3d rev. ed. 1993). Assuming the continued viability of the

public duty rule, defendants in this case assert, inter alia, that

they owed no duty to Hays, so the issue of immunity is never

reached.

While Zimmerman and subsequent cases continue to

reference and apply the public duty rule in various contexts

(see Sims-Hearn v. Office of the Medical Examiner, 359 Ill.

App. 3d 439, 443-46 (2005); Alexander v. Consumers Illinois

Water Co., 358 Ill. App. 3d 774 (2005)), in the context of police

protection services, this court=s comments lend support to

plaintiff=s contention that the public duty rule has been codified

in section 4B102 of the Tort Immunity ActBas an immunity.

Indeed, this court apparently acknowledged as much in Aikens

v. Morris, 145 Ill. 2d 273 (1991), when it referred to Athe

common law blanket immunity, codified in section 4B102, which

immunizes a municipality and its employees for the failure to

provide police protection.@ Aikens, 145 Ill. 2d at 282 (ASection

4B102 immunity may apply in the context where police officers

are simply >providing [or failing to provide] police services= @);

see also Hernandez v. Kirksey, 306 Ill. App. 3d 912, 915

(1999) (section 4B102 codifies the common law public duty

rule). In Aikens, this court explained:

AWe note, *** in an effort to preserve the clarity of

our jurisprudence, that section 4B102 of the Tort

Immunity Act codifies the separate common law rule

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that municipalities or their employees are not liable for

failure to supply police or fire protection. This

long-standing rule survived Molitor. (See Huey v. Town

of Cicero (1968), 41 Ill. 2d 361, 363.) Under the rule, a

police department=s duty to preserve the well-being of

the community is owed to the public at large, rather than

specific individuals. [Citations.] The duty is so limited

because of strong public policy considerations which

seek to avoid placing police departments in the

untenable position of guaranteeing the personal safety

of each individual in the community.@ Aikens, 145 Ill. 2d

at 278 n.1.

This court=s comments in Aikens suggest, as plaintiff

argues, that the public duty rule, at least in this context, has

been incorporated into the Tort Immunity Act as an Aimmunity.@

However, the current status of the public duty rule is not a

point this court must resolve in this case because, even if these

A >governmental units are liable in tort on the same basis as

private tortfeasors= @ (Village of Bloomingdale, 196 Ill. 2d at

490, quoting In re Chicago Flood Litigation, 176 Ill. 2d at 192),

we find that section 4B102 immunity applies in any event. It is

our prerogative to forgo the determination of issues

unnecessary to the outcome of a case. See Calloway v.

Kinkelaar, 168 Ill. 2d 312, 326-27 (1995) (acknowledging Athe

public duty doctrine, a common law immunity based on public

policy,@ but declining to reach the issue of the rule=s

applicability); Lovgren v. Citizens First National Bank of

Princeton, 126 Ill. 2d 411, 417-18 (1989); see also Sundance

Homes, Inc. v. County of Du Page, 195 Ill. 2d 257, 288 (2001)

(Freeman, J., specially concurring, joined by McMorrow, J.). As

we may reject an ineffective assistance of counsel claim in a

criminal case on the basis of lack of prejudice, assuming

counsel=s deficient performance, arguendo, for purposes of

analytical expedience (see People v. Ceja, 204 Ill. 2d 332, 358

(2003)), so may we assume a defendant owes a duty, for the

sake of analysis, in order to expedite the resolution of an

immunity issue.

We now address the central issue presented by plaintiff=s

appeal, i.e., whether the circuit court erred in dismissing

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plaintiff=s complaint with prejudice on the basis of section

4B102 of the Tort Immunity Act. Section 4B102 provides in

pertinent part:

ANeither 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 *** .@ 745 ILCS

10/4B102 (West 2002).

When construing a statute, this court must, if possible, give

effect to each paragraph, sentence, clause, and word. People

v. Maggette, 195 Ill. 2d 336, 350 (2001). A court should

construe a statute, if possible, so that no term is rendered

superfluous or meaningless. Maggette, 195 Ill. 2d at 350. In

interpreting an immunity provision, our primary goal is to

ascertain and give effect to the intention of the legislature. We

seek that intent primarily from the language used in the Tort

Immunity Act. Barnett, 171 Ill. 2d at 388. Where an enactment

is clear and unambiguous, we are not at liberty to depart from

the plain language and meaning of the statute by reading into it

exceptions, limitations or conditions that the legislature did not

express. Village of Bloomingdale, 196 Ill. 2d at 493, quoting

Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990). This court may

not legislate, rewrite or extend legislation. If a statute, as

enacted, seems to operate in certain cases unjustly or

inappropriately, the appeal must be to the General Assembly,

and not to this court. Village of Bloomingdale, 196 Ill. 2d at 494,

quoting Michigan Avenue National Bank v. County of Cook,

191 Ill. 2d 493, 522 (2000).

Section 4B102, the immunity statute at issue, is couched in

the disjunctive. The pertinent portion of the statute contains

three clauses separated in two locations by the term Aor.@ The

statute, by its terms, immunizes local public entities and public

employees from liability for failure to (1) establish a police

department or (2) otherwise provide police protection or (3) if

police protection service is provided, for failure to provide

adequate police protection service. While the wording and

context of other less comprehensive provisions of the Tort

Immunity Act might warrant a different interpretation (see

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American National Bank & Trust Co. v. City of Chicago, 192 Ill.

2d 274, 280-81 (2000) (interpreting section 5B101 of the Act,

which fails to address inadequate governmental protection)), if

we were to interpret section 4B102 in any other way than the

tripartite manner indicated, we would be excising one of the

three aforementioned clauses from the statute as written by the

legislature. We do not possess that authority. Village of

Bloomingdale, 196 Ill. 2d at 494.

We first address plaintiff=s claim that section 4B102 does not

apply because Athere was no particular need for police

assistance.@ Plaintiff notes that the call for assistance did Anot

target any particular type of governmental agency@ and

maintains that Athe nature of the call suggests that at least one

non-police agency would be an appropriate responder.@

Plaintiff=s attempt to circumvent the application of section

4B102 is unavailing.

We again examine the essential facts provided in plaintiff=s

complaint and response. One has to assume that Lori

Sampson accurately conveyed the information given her by the

anonymous caller, because there is nothing in the record to the

contrary. Sampson told Christine Wrigley, the Henry County

dispatcher, that someone had witnessed a vehicle go off Route

150 at a high rate of speed and, because of its speed upon

departure from the road, the witness speculated that the

vehicle must have wrecked. Sampson described the location

with specificity and indicated that it was in Rock Island County.

Wrigley, in turn, contacted Debra Roman at the Dispatch

Center, informing her of the vehicle=s location, but telling her

only that there was a vehicle Adown in the ditch.@ Wrigley did

not mention the speed at which the vehicle was traveling when

it left the roadway, and she did not convey any assumptions

regarding an accident or injuries. It was that information which

Roman passed on to Rock Island County=s dispatcher, Myrtle

DeWitte. Consequently, authorities in Rock Island County, the

county in which accident actually occurred, knew only that

there was Aa vehicle in the ditch.@ Thus, plaintiff=s factual

allegations, stripped of unsupported speculation, conclusions

and characterizations, indicate that the defendants, collectively,

failed to respond to an anonymous report of a possible

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accident or Avehicle in the ditch.@ Nothing in the motorist=s

report confirmed that an accident had in fact occurred or that

anyone was injured. Plaintiff bases her case upon this failure to

respond to an anonymous, unconfirmed report of a possible

accident.

Appellate panels have held that Apolice protection service@

under section 4B102 is implicated where police are called upon

to assist or locate motorists who have driven off the roadway.

See McElmeel v. Village of Hoffman Estates, 359 Ill. App. 3d

824, 827-29 (2005); Kavanaugh v. Midwest Club, Inc., 164 Ill.

App. 3d 213, 221 (1987). We agree with those decisions

insofar as they hold that the assistance required in such

situations falls within the statutory umbrella of Apolice protection

services.@ We therefore reject plaintiff=s argument that the

caller=s report required an immediate emergency medical

response. Until the police had determined that an accident had

in fact occurred, and that there were injuries associated with

the accident, an emergency medical response was not

indicated. Consequently, section 4B102 applies in the first

instance, rather than some other statutory provision of the Tort

Immunity Act.

Plaintiff next contends A[w]here a municipality receives a

call for emergency assistance but fails to respond, and that

failure is the consequence of human error rather than any

exercise of discretion, Section 4B102 of the Tort Immunity Act

is not implicated.@ Plaintiff suggests that the Alegislature did not

intend to shield municipalities from liability caused by a

complete and inexcusable failure to act.@ She argues: A[T]here

was no failure to provide adequate police service, the conduct

that 4B102 addresses. Instead, there was a complete absence

of any police service, and 4B102 does not address that

situation.@ (Emphases in original.)

In passing, we note that plaintiff=s reference to Ahuman

error@ suggests an assertion of negligence (see Jolley v.

Consolidated R. Corp., 167 Ill. App. 3d 1002, 1008 (1988)

(equating Ahuman error@ with Anegligence@)), as opposed to the

Autter indifference to or conscious disregard for the welfare@ of

another that are the hallmarks of willful and wanton conduct.

See Doe v. Chicago Board of Education, 213 Ill. 2d 19, 28

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(2004). Plaintiff=s attribution of defendants= failure to respond to

Ahuman error@ is consistent with the allegations of Anegligence@

in her complaint. Notwithstanding this characterization, for

purposes of analysis, we will treat the complaint as if it alleged

either negligence or willful and wanton conduct. As we will

explain hereafter, it was properly dismissed in either event.

First, we reject plaintiff=s attempt to equate the failure to

Arespond@ to the report in this case with a failure to provide

Aany police service@ for purposes of section 4B102. Although

section 4B102 of the Act does immunize a local public entity for

its Afailure to establish a police department or otherwise provide

police protection service@ (745 ILCS 10/4B102 (West 2002)),

that portion of the statute is not at issue here because the

record in this case clearly shows that these governmental

defendants rendered police protection service to the general

public via their dispatch centers. The dispatch services simply

proved inadequate in this instance insofar as they failed to

deliver personalized police services to the scene in a timely

manner. The allegations of plaintiff=s complaint bear this out.

Plaintiff alleges that the defendants A[f]ailed to train and

supervise *** employees@ and Afailed to have in force

procedures which would ensure that all emergency calls for

assistance are responded to in a timely fashion.@ Those

allegations implicate the structural adequacy of police

protection services that defendants provided to the general

public. In essence, plaintiff alleges that those inadequacies

resulted in a failure Ato obtain sufficient information concerning

decedent=s motor vehicle accident,@ a failure Ato timely dispatch

appropriate law enforcement personnel,@ and a failure Ato

timely dispatch emergency medical personnel.@ Thus, plaintiff=s

allegations implicate the adequacy of services provided to the

general publicBservices that are intended to determine whether

and when police officers will be dispatched into the community

in response to specific calls for assistance. As we will explain

hereafter, when officers do respond to the scene of a call for

assistance, different rules of immunity may apply; however,

section 4B102 governs in the circumstances before us.

Moreover, since section 4B102 contains no exception for

willful and wanton misconduct, that section would immunize

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defendants even if we were to accept plaintiff=s argument that

the facts alleged in her complaint support that characterization.

As we noted in Village of Bloomingdale, and our prior decisions

discussed therein, when the legislature intends to limit an

immunity provision to cover only negligence and not willful and

wanton misconduct, it has A >unambiguously done so.= @ Village

of Bloomingdale, 196 Ill. 2d at 491, quoting Barnett, 171 Ill. 2d

at 391. When the plain language of an immunity provision in

the Tort Immunity Act contains no exception for willful and

wanton misconduct, we have reasoned that the legislature

A >intended to immunize liability for both negligence and willful

and wanton misconduct.= @ Village of Bloomingdale, 196 Ill. 2d

at 491, quoting Barnett, 171 Ill. 2d at 391-92. This court applied

that reasoning in Harinek and Chicago Flood Litigation to hold

that section 2B201 of the Tort Immunity Act immunized

defendants against allegations of willful and wanton

misconduct. Harinek, 181 Ill. 2d at 347; In re Chicago Flood

Litigation, 176 Ill. 2d at 196. Identical reasoning was utilized in

Henrich v. Libertyville High School, 186 Ill. 2d 381, 395 (1998),

and Barnett, 171 Ill. 2d at 391-92, en route to holdings that the

version of section 3B108 then in effect afforded Afull immunity.@

Barnett, 171 Ill. 2d at 393. The analysis employed in those

decisions compels the same conclusion in this case.

Section 4B102 of the Act is comprehensive in the breadth of

its reach, addressing situations where no police protection is

provided to the general public and those in which inadequate

protection is provided. Moreover, section 4B102 contains no

exception for willful and wanton misconduct. We hold, given the

facts of this case, that section 4B102 immunizes defendants

against both negligence and willful and wanton misconduct.

Plaintiff, however, submits that this court, in Doe v. Calumet

City, 161 Ill. 2d 374 (1994), recognized a willful and wanton

exception to the immunity otherwise provided by section

4B102, and she suggests that the exception applies to the facts

of this case. To the extent that Doe still represents good law,

we hold it is inapplicable under these circumstances, where the

police failed to respond to the scene of a possible accident.

Since this court=s decision in Doe cannot be properly

understood without reference to the outrageous conduct

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alleged of the supervising police officer in that case, we set

forth the facts at some length.

Jane Doe and her two children, Betty and John, were the

victims of a home invasion accompanied by violent assaults.

The intruder, Valentine, first sexually assaulted Jane and

threatened to kill her. Jane subsequently escaped from her

apartment and struggled with Valentine on the stairwell of her

building. During the course of that struggle, Valentine beat

Jane and again threatened to kill her. Valentine eventually left

Jane on the stairwell, reentered her apartmentBwhere Jane=s

children were still locatedBand locked the door behind him.

Jane, clothed only in undergarments, then left the building

screaming. Several neighbors heard the screams and dialed

911. Officer Horka was one of several officers to arrive at the

scene, and he assumed a supervisory role.

Officer Horka asked Jane what had happened. Jane told

him that there was a man in her apartment, and that the man

had tried to rape her and had threatened to kill her and her

children. Jane also told Horka that her children were still in the

apartment and she feared for their safety. Jane pleaded with

Horka to break down the door and rescue her children. Several

neighbors also pleaded with the officers to break down the

door. However, Officer Horka declined to break down the door,

stating that he did not want to be responsible for the property

damage. Jane repeatedly stated that she would pay for any

damage and screamed that she herself would save her

children. When Jane attempted to rescue her children, several

defendant police officers ordered her to stay put and then

physically restrained her. The complaint subsequently filed by

Jane and her children alleged that the defendant police officers

also prevented neighbors from breaking down the door.

The complaint further alleged that Horka delayed outside

the apartment, questioning Jane in an accusatory and rude

manner, attempting to obtain a key from the landlord, and

attempting to gain entry to the front door of the apartment by

ringing the doorbell. The complaint alleged that Horka and

another officer walked around the apartment building, checking

Jane=s windows and rear door, but they did not gain entry at

those locations. Plaintiffs= complaint claimed the rear balcony

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sliding glass doors, 12 feet above ground level, were unlocked

and ajar, and that the rear door of the building and the back

door to Jane=s apartment were also unlocked.

According to the complaint, Officer Horka spoke by radio to

his supervisor, Sergeant Targonski, who directed Horka to

break down the door. Several paramedics arrived and told the

officers that a Alock pick,@ a locksmith, and a ladder were

available for gaining entry into the apartment. However, Officer

Horka, and other officers at the scene, still did not attempt to

gain entry into Jane=s apartment. Finally, Investigator Miller of

the Calumet City police department arrived at the scene,

interviewed Jane, and, accompanied by several officers,

entered the apartment through the rear door of the building and

the back door of the apartment, which were unlocked. When

the officers entered the apartment, they found Valentine raping

Betty. From the time the officers arrived until Investigator Miller

interceded, Valentine had repeatedly raped Betty and forced

her to perform deviate sexual acts. Also during this time,

Valentine had choked and threatened John. See Doe, 161 Ill.

2d at 381-83.

As this court noted in Doe, from those facts, Aplaintiffs=

complaint framed three theories for transferring the cost of their

injuries to the defendant police officers and their respective

municipalities. Betty and John brought a negligence count

alleging the special duty exception to defendants= statutory

immunity. In addition, the negligence count also alleged willful

and wanton misconduct. Jane brought a count alleging

intentional infliction of emotional distress.@ Doe, 161 Ill. 2d at

383-84. Pertinent to our present inquiry, the circuit court

granted defendants= motion to dismiss the negligence and

willful and wanton misconduct counts for failure to state a claim

upon which relief could be granted. Doe, 161 Ill. 2d at 380.

This court agreed that the negligence count was properly

dismissed because plaintiffs had not established all of the

necessary elements for application of the special duty doctrine.

Doe, 161 Ill. 2d at 387. In the course of that portion of the

court=s analysis, this court engaged in a cursory discussion of

sections 4B102 and 4B107 of the Tort Immunity Act (Ill. Rev.

Stat. 1987, ch. 85, pars. 4B102, 4B107), and thereafter

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concluded that A[a]n exception to both the common law public

duty rule and the statutory immunities has evolved where the

actions of the municipality=s agent showed a special

relationship with the plaintiff that created a duty different from

the duty owed to the general public.@ Doe, 161 Ill. 2d at 385-86.

This court, in Doe, thus held that the Aspecial duty doctrine,@ a

judicially created exception to the judicially created public duty

rule, could be used to override both the public duty rule and

any applicable statutory immunities.

To the extent that Doe held the special duty doctrine could

override statutory immunities, that portion of the decision was

overruled by this court, sub silentio, in Zimmerman.

Zimmerman, 183 Ill. 2d at 46-50 (ABecause the special duty

doctrine is a judicially created exception to the public duty rule,

the special duty doctrine cannot, and was not intended to,

contravene the immunities provided to governmental entities

under the Tort Immunity Act. Such operation constitutes a

violation of the Illinois Constitution=s provisions governing

sovereign immunity (Ill. Const. 1970, art. XIII, '4) as well as the

separation of powers (Ill. Const. 1970, art. II, '1)@).

This court in Doe also held that the allegations of willful and

wanton misconduct in plaintiffs= complaint stated a cognizable

claim against one of the police officers involved, Officer Horka,

pursuant to section 2B202 of the Tort Immunity Act. Doe, 161

Ill. 2d at 388-90. Section 2B202 of the Act provides that A[a]

public employee is not liable for his act or omission in the

execution or enforcement of any law unless such act or

omission constitutes willful and wanton conduct.@ 745 ILCS

10/2B202 (West 2002). This court=s decision in Doe

suggestsBwithout ever statingBthat Officer Horka, the

supervising officer in control of the crime scene, was engaged

in the Aexecution or enforcement@ of the law for purposes of

section 2B202. In concluding that Aplaintiffs= complaint

presented a jury question as to whether Officer Horka=s

conduct was willful and wanton,@ this court emphasized the

following:

AThe complaint repeatedly states that Officer Horka was

the officer in control at the scene. Plaintiffs= complaint

alleges that Officer Horka was aware of the facts

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surrounding the intrusion into plaintiffs= home, including

the assault of Jane and the presence of the intruder in

the plaintiffs= home with Betty and John. *** A rational

trier of fact could find that Officer Horka=s conduct

showed an >utter indifference or conscious disregard for

the safety of= Betty and John.@ Doe, 161 Ill. 2d at 390-

91.

However, this court held that A[t]he allegations in the complaint

[were] insufficient to create a jury question regarding the willful

and wanton nature of the conduct of@ other officers named in

the complaint, who had also responded to scene and were also

aware of the facts surrounding the ongoing criminal action.

Doe, 161 Ill. 2d at 391. This court found the distinguishing

factor to be the control that Horka exercised over the crime

scene and over other officers who responded to the scene.

Doe, 161 Ill. 2d at 390-91. See also Calloway v. Kinkelaar, 168

Ill. 2d 312, 323 (1995) (acknowledging the significance of the

element of control in Doe: AThis officer [Horka] physically

restrained the mother and neighbors from trying to break in to

save the minor girl, who was being repeatedly raped by the

assailant, and the young boy, who was being choked and

threatened@).

What emerges from this court=s decision in Doe is a fact-

specific application of section 2B202 that bears some striking

similarities to an application of the special duty exception to the

public duty rule. The special duty exception to the public duty

rule requires that (1) the municipality must be uniquely aware

of the particular danger or risk to which plaintiff is exposed; (2)

there must be specific acts or omissions on the part of the

municipality; (3) the specific acts must be affirmative or willful

in nature; and (4) the injury must occur while the plaintiff is

under the direct and immediate control of municipal employees

or agents. Doe, 161 Ill. 2d at 386. Although this court found

that Athe police did not owe plaintiffs a special duty different

from the duty owed the general public@ because plaintiffs=

complaint did Anot allege sufficient facts to show that Betty and

John were under the direct and immediate control of

defendants@ (Doe, 161 Ill. 2d at 387), the court held that Officer

Horka=s control of the crime scene was sufficient, considering

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all the attendant circumstances, to allege a cause of action

based upon willful and wanton misconduct under section

2B202. We note that Horka not only exercised control over the

crime scene, but also, according to the complaint, stopped

others from entering the apartment to rescue the children.

Our review of Doe=s application of section 2B202 reveals

three elements of importance which distinguish Doe from the

case now before us.. First, and most obvious, in Doe, Officer

Horka actually responded to the scene and, second, he was, at

least ostensibly, engaged in Athe execution or enforcement@ of

the law when he assumed a supervisory role over the

investigation and law enforcement activities at the scene. As

plaintiff acknowledges, the police in this case did not respond

at all. Even if they had, they would have been providing service

in the nature of a community caretaking function, not Aenforcing

or executing@ the law, as this court has heretofore interpreted

that phrase. As we stated in Aikens, ASection 4B102 immunity

may apply in the context where police officers are simply

>providing [or failing to provide] police services,= but section

2B202 immunity requires more particular circumstances for its

application, i.e., an act or a course of conduct >in the execution

or enforcement= of law.@ Aikens, 145 Ill. 2d at 282. The policy

considerations that support the Acommon law blanket immunity,

codified in section 4B102,@ are Adifferent policy considerations@

from those underlying section 2B202 of the Act. Aikens, 145 Ill.

2d at 282-83. The third element of importance in DoeBthe

assertion of control at the sceneBmay help to explain why there

are different policy considerations underlying the two immunity

provisions. When an officer does respond to a call, be it a

report of a crime in progress, as in Doe, or a multivehicle traffic

accident requiring Aenforcement of the traffic laws,@ as in

Fitzpatrick v. City of Chicago, 112 Ill. 2d 211 (1986), he or she

exercises a degree of control over the situation and may well

alter the circumstances at the scene for betterBor worse. The

legislature obviously intended to immunize an officer from his

negligence in that circumstance, but section 2B202 expresses

a policy determination that the officer should not be afforded

immunity for acts of willful and wanton misconduct. Where no

officers respond to the sceneBwhether it is because no police

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protection services are provided or because the services

provided prove to be inadequateBthe 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

4B102 of the Tort Immunity Act.

In sum, we hold that the plain language of section 4B102 of

the Tort Immunity Act immunizes defendants under the facts of

this case. Section 2B202 does not apply in this instance as an

exception to section 4B102 immunity because defendants were

not executing or enforcing the law and they did not exercise

control over Hays. Although we recognize that there may be

additional exceptions to the application of section 4B102 where

a legislative enactment identifies a specially protected class of

individuals to whom statutorily mandated duties are owed (see

Moore v. Green, No. 100029, slip op. at 29-35 (April 20, 2006);

Calloway, 168 Ill. 2d at 323-24 (discussing the statutorily

mandated duties owed to the class of individuals protected by

the Illinois Domestic Violence Act of 1986 (750 ILCS 60/101 et

seq. (West 2002))), we do not encounter such a scenario here.

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 4B102 of the Tort Immunity Act immunizes the

defendants from liability and the consequent payment of public

funds in satisfaction of an individual=s damage claims. See

Village of Bloomingdale, 196 Ill. 2d at 490 (A >By providing

immunity, the legislature sought to prevent the diversion of

public funds from their intended purpose to the payment of

damage claims.= @), quoting Bubb, 167 Ill. 2d at 378. Section

4B102 immunity applies in this case.

For the foregoing reasons, we affirm the judgment of the

appellate court.

Affirmed.

JUSTICE McMORROW, dissenting:

At issue in this appeal is whether defendants in this

actionBvarious counties and municipalities, as well as their

agents and employeesBunder the facts presented, are

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absolutely immune from liability based upon section 4B102 of

the Local Governmental and Governmental Employees Tort

Immunity Act (Tort Immunity Act) (745 ILCS 10/4B102 (West

2002)). The majority answers this question in the affirmative,

holding that a complaint alleging either negligence or willful and

wanton misconduct on the part of defendants is properly

dismissed pursuant to this statutory provision.

Pertinent to the instant cause, section 4B102 of the Tort

Immunity Act provides:

ANeither 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 ***.@ 745 ILCS

10/4B102 (West 2002).

The majority affirms the circuit court=s dismissal of plaintiff=s

complaint on the basis that defendants are completely

immunized from plaintiff=s claims pursuant to section 4B102 of

the Tort Immunity Act (745 ILCS 10/4B102 (West 2002)). The

majority arrives at this conclusion based on a rationale first

employed by this court in Barnett v. Zion Park District, 171 Ill.

2d 378 (1996). In Barnett, this court held that section 3B108(a)

of the Tort Immunity Act (745 ILCS 10/3B108(a) (West 1992))

cloaked the defendant park district with absolute immunity

against allegations that lifeguards at the defendant=s swimming

pool knowingly and willfully ignored pleas to save a drowning

minor, thereby causing the minor=s death. The Barnett majority

reasoned that the absence of an explicit exception for willful

and wanton misconduct in section 3B108(a) of the Act meant

that Athe legislature must have intended to immunize liability for

both negligence and willful and wanton misconduct.@ Barnett,

171 Ill. 2d at 391-92. In the course of my dissent from the

majority=s holding in Barnett, I observed that there Aare strong

reasons why the policies underlying grants of immunity for

simple negligence should not be impliedly expanded to reach

willful and wanton or intentional misconduct.@ Barnett, 171 Ill.

2d at 403 (McMorrow, J., dissenting).

More specifically, I explained in Barnett that Athe general

rationale for granting public entities the protection of immunities

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not enjoyed by private entities is the significant expense and

burdens placed upon the government@ when negligence on the

part of local public entities or officials carrying out their

government duties results in injuries to the public and such

negligence lawsuits Aare permitted to flourish unchecked.@

Barnett, 171 Ill. 2d at 403-04 (McMorrow, J., dissenting). It was

my view, however, that the Arationale underlying a grant of

immunity for simple negligence is different in kind from any

justification for immunizing tortious conduct that is intentionally

harmful or willful and wanton,@ and if the legislature actually

intended to bestow absolute immunity for willful and wanton

misconduct, the immunity statute should positively and

unequivocally state such an intention. Barnett, 171 Ill. 2d at

404 (McMorrow, J., dissenting).

Since Barnett, I have adhered to my belief that the policies

underlying grants of immunity for simple negligence are

distinguishable from any justification for blanketing deliberate

governmental misconduct with immunity. See In re Chicago

Flood Litigation, 176 Ill. 2d 179, 213-14 (1997) (McMorrow, J.,

concurring in part and dissenting in part); Harinek v. 161 North

Clark Street Ltd. Partnership, 181 Ill. 2d 335, 354 (1998)

(McMorrow, J., concurring in part and dissenting in part);

Henrich v. Libertyville High School, 186 Ill. 2d 381, 401-02

(1998) (McMorrow, J., dissenting); Village of Bloomingdale v.

CDG Enterprises, Inc., 196 Ill. 2d 484, 501-10 (2001)

(McMorrow, J., concurring in part and dissenting in part);

Arteman v. Clinton Community Unit School District No. 15, 198

Ill. 2d 475, 488-90 (2002) (McMorrow, J., concurring in part and

dissenting in part); Moore v. Green, No. 100029, slip op. at 15-

20 (April 20, 2006) (McMorrow, J., specially concurring). I note

that my conclusion in Barnett that the legislature did not intend

to immunize willful and wanton misconduct in the immunity

provisions of section 3B108 was validated when the General

Assembly passed Public Act 90B805 (Pub. Act 90B805, eff.

December 2, 1998), which amended section 3B108 to exclude

willful and wanton conduct from the immunity granted by the

statute. My conviction remains unwaivering that deliberate acts

of governmental misconduct are not protected under the Tort

Immunity Act by provisions which remain silent with respect to

-23-

an express exemption for such intentional harmful acts.

In the matter at bar, the majority, based upon the Barnett

rationale, interprets section 4B102 of the Tort Immunity Act

(745 ILCS 10/4B102 (West 2002)) as affording a local

governmental entity and its employees absolute immunity

against liability for any injury caused to a citizen as a result of

the entity=s Afailure 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,@ even if such injury results from

intentional and knowing misconduct on the part of defendants.

The majority arrives at this result on the basis that section

4B102 does not contain an express exemption for willful and

wanton misconduct. The majority, however, does recognize

that there may be limited exceptions to the application of the

blanket immunity it finds exists in section 4B102 in those

instances Awhere a legislative enactment identifies a specially

protected class of individuals to whom statutorily mandated

duties are owed.@ Slip op. at 19. This limited exception,

however, does not ameliorate the harshness of the majority=s

holding which will, in most instances, insulate government

entities and employees from liability for intentional misconduct.

The majority states that although it Afirmly believe[s] that

citizens have a right to expect the police to respond in a

situation like this, the issue here is whether section 4B102 of

the Tort Immunity Act immunizes the defendants from liability

and the consequent payment of public funds in satisfaction of

an individual=s damage claims.@ Slip op. at 19. It is my view that

blanket immunity should not be afforded to acts performed by

local governmental entities or government officials in bad faith,

especially where the provision of life-and-death police

protection services are at issue. It is evident to me that the

blanket, unlimited immunity bestowed upon defendants in this

case is unnecessary to protect public entities from liability

arising from Athe operation of government,@ which is the stated

purpose of the Tort Immunity Act (745 ILCS 10/1B101.1 (West

2002)). Construing section 4B102 of the Act to immunize only

negligent conduct would completely fulfill this legislative

objective.

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Accordingly, I respectfully dissent from the majority=s

conclusion that intentional misconduct by a local public entity or

employee is shielded by the provisions contained within section

4B102 of the Tort Immunity Act (745 ILCS 10/4B102 (West

2002)). I continue to adhere to the view that where the Tort

Immunity Act is silent on the question of whether intentional

government misconduct is exempt from immunity, it should not

be concluded that such silence translates into a positive intent

on the part of the General Assembly to cloak local

governmental entities and their employees with unconditional

immunity.

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